New York State Court of Claims

New York State Court of Claims

GIVENS v. THE STATE OF NEW YORK, #2005-028-557, Claim No. 109842, Motion No. M-69558


Claimant filed and served an unverified claim which was properly and timely rejected as a nullity. Claimant may not correct the jurisdictional defect as these facts by filing and serving a proper Claim. Claimant's remedy is to commence a new action. Claim dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Susan Pagoda, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the Court's Order to Show Cause:

1) Order to Show Cause filed January 11, 2005

2) "Answer to Order to Show Cause" (Givens Answer) and Affidavit in Support of Denise Givens filed January 28, 2005 (Givens Affidavit)[1].

3) Affidavit of Janet Barringer filed February 24, 2005.

Filed Papers: Claim filed September 13, 2004.

In Lepkowski v State of New York, (1 NY3d 201), the Court of Appeals, in dicta, indicated that Court of Claims Act § 11(b) "embraces CPLR 3022's remedy for lapses in verification" and, pursuant to CPLR 3022, "[a] defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification" (id. at 210). In the aftermath of Lepkowski, this Court has encountered, as Defendants rejected Claims with verification shortcomings, the many ways in which Claimants have dealt with rejection as they aim to rectify the purported deficiency. A number of these claims, including the instant Claim, are filed with the Clerk of the Court (see Court of Claims Act § 11) but remain unanswered having been rejected as a nullity. By Order to Show Cause, the Court seeks to resolve the status of the instant Claim.

In response to the instant Order to Show Cause, Claimant states that she did verify her Claim and Defendant misplaced it (Givens Answer) or; alternatively, that the Court should waive the defect as no prejudice befalls the Defendant (Givens Answer). Claimant also asserts that the notice of rejection (Nullity Letter) was deficient (Givens Affidavit ¶ 4).[2]

Defendant, in support of dismissal asserts that the only claim served by Claimant was an unverified one that was rejected on September 13, 2004, the same day it was received (Barringer Affidavit ¶ 4).

In order to resolve the present issue, and accepting the guidance of the Court of Appeals in Lepkowski, the Court must first determine whether there has been a timely rejection of the pleading. Then, the Court must determine whether a valid basis existed for the rejection of the pleading and if Defendant sufficiently articulated the deficiency. If the Defendant has satisfied these three prongs, then the Court must determine whether, and how, a Claimant may cure the pleading defect. It necessarily follows that if the Defendant has not satisfied each prong that a waiver of the defect has occurred (CPLR 3022)[3],

CPLR 3022 allows a party to treat an unverified pleading as a nullity if the receiving party notifies the other party to the litigation with due diligence. The phrase "due diligence" has remained undefined (see Matter of Miller v Bd. of Assessors, 91 NY2d 82, 86; Lepkowski v State of New York, 1 NY3d 201). While most courts have held that the rejection must be tendered within 24 hours (see e.g. Matter of Maynard v Wait, 246 AD2d 853, 854; Rivera v State of New York, Ct Cl, McNamara, J., Claim No. 104625 [unreported decision]) there also exists support for a fact based determination (see e.g. Theodoridis v American Transit Ins. Co., 210 AD2d 397, 397). In the instant proceeding, Claimant acknowledges the rejection of the Claim (Givens Affidavit ¶4) by Defendant and Defendant's statement that the Claim was rejected the same day it was received is uncontroverted. Defendant's assertion is supported by the Court's file which contains a copy of the nullity letter dated September 13, 2004 and received by the Court on September 15, 2004. Accordingly, the Court finds Defendant has timely rejected the Claim.

The Court next examines whether there has been a proper rejection. The Nullity Letter stated the Claim was not verified. A review of the Claim filed with the Court, notwithstanding Claimant's assertion to the contrary, reveals that the Claim was not verified. In fact, the filed Claim lacks any verification language whatsoever (see Graham v Goord, 301 AD2d 882; Martin v State of New York, 185 Misc 2d 799). As such, the Court finds that Defendant adequately articulated the defect to Claimant, evidenced in part by Claimant's curative efforts, and that there was a failure to verify the Claim warranting its rejection.

It is well settled that the filing and service requirements contained in Court of Claims Act §§10 and 11 are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723; see also Welch v State of New York, 286 AD2d 496; Conner v State of New York, 268 AD2d 706, 707). Because the Legislature has not directed otherwise (see Court of Claims Act § 11[c]), this Court is of the view that the verification of a claim is a jurisdictional requirement which is, likewise, to be strictly construed (see Lichtenstein v State of New York, 93 NY2d 911, 913; see also Newman v State of New York; 5 Misc 3d 640; see also Webb v State of New York, 18 AD3d 648). Unlike the situation in City of Rensselaer v Duncan, (266 AD2d 657), where the Court held a verified petition was not required to commence a special proceeding (id. at 659) a verified Claim is required to commence an action in this Court and as such the deficiency may not, as Claimant argues, be disregarded even absent prejudice to the Defendant (see Matter of Welch v State of New York, 71 AD2d 494, lv denied 50 NY2d 802). The question therefore becomes, assuming as occurred here a timely and proper rejection of the Claim, whether the Claimant may cure the jurisdictional defect by serving and filing a stand-alone verification to be appended to the defective Claim?

Equally well settled is the proposition that a jurisdictionally defective Claim may not be corrected by amendment (see e.g. Roberts v State of New York, 4 Misc 3d 768, [collecting cases]). In Newman v State of New York supra, Hon. Judith A. Hard noted that Claimant's attempt to amend a claim to cure the deficient verification was not permissible (Newman v State of New York, 5 Misc 3d at 642, supra) and held that Claimant was required, in the face of a proper rejection, to serve "a verified claim within the applicable time period contained in section 10 of the Court of Claims Act" and that the failure to do so resulted in an untimely claim (id.). The curative measure approved in Newman [re-service within the statutory time frame] was premised on the fact Claimant had filed a verified claim with the Court and had served an unverified copy of the claim upon Defendant. The instant Claim is distinguished in that here, both the served and filed claims were unverified[4]. In Lefrak v Robinson, 115 Misc 2d 256, a case pre-dating commencement by filing, the city court held that a petition in a proceeding pursuant to RPAPL §741which contained a defective verification must be dismissed. The Court then pondered what was the effect of the dismissal-was the proceeding terminated - and adopted the suggestion of Professor David Siegel, a frequent critic of Court of Claims practice, that the proceeding "need not be dismissed and that instead, the petitioner be permitted to serve an amended petition, duly verified" (Lefrak v Robinson 115 Misc 2d at 258; but see Genesee Gateway Houses, Inc. v Khalid, 2003 WL 21014857 [NY City Ct], 2003 NY Slip Op 50809(U) [Unreported][ petitions dismissed, without prejudice to the filing of new petitions [emphasis added]]). Whether Claimant may cure the at issue defect within this Claim must be viewed against the prohibition against amendments to cure jurisdictional defects and the strict construction afforded the commencement provisions of the Court of Claim Act (see Lichtenstein v State of New York, 93 NY2d 911). While this Court is aware that its practice is sometimes considered draconian (Siegel, NY Prac § 235, at 394 [4th ed]), and notwithstanding that the Court of Appeals is suggesting that its practice resemble that of Supreme Court with regard to verification and rejection (see Lepkowski v State of New York, 1 NY3d 201) This Court concludes that once a claimant has filed a claim and obtained a claim number, the claimant, in an effort to cure verification defects in the filed claim, may not simply supply the missing, and essential, verification or substitute a new or corrected claim under the same claim number (accord Ferran v Benkowski, 260 AD2d 690 [plaintiff was not permitted to file and serve a new summons that varied from the original action under the same index number without first obtaining judicial permission or purchasing a new index number]; see also Storini v Hortiales, 16 AD3d 1110). As appealing and expedient as the process utilized in Lefrak, supra, is, it is not consistent with the Court of Claims Act. The Legislature has seen fit to craft the Court of Claims Act, and its distinct requirements, as the basis upon which the State will waive its sovereign immunity. It is not for this Court to dispense with statutory requirements under principles of "abstract justice fitting the particular case" (see Ponsrok v City of Yonkers, 254 NY 91, 95). On the facts presented herein, Claimant's only remedy, assuming the original time period set forth in Court of Claims Act § 10 has not run, is to commence a new claim which necessarily includes obtaining a new claim number, filing the properly verified claim, paying the filing fee and making proper service of same upon the Defendant. Given the due diligence requirement for rejecting a claim as a nullity, this remedy will suffice.

As to Claimant's purported cross-motion the same is not properly before the Court (see Matter of Briger, 95 AD2d 887, 888; CPLR 2215).

Accordingly, Claim No. 109842 shall be and hereby is dismissed.

August 2, 2005
Albany, New York

Judge of the Court of Claims

[1] Although denominated an "Answer to Order to Show Cause " Claimant's submission was, in effect, a cross-motion for an Order pursuant to CPLR 2001 seeking, inter alia, relief from the verification requirement of Court of Claims Act § 11.
[2] The Claimant also submitted to the Court with her papers a stand-alone verification bearing a jurat dated January 25, 2005. Claimant had previously submitted a stand-alone verification dated September 29, 2004, apparently in response to the nullity letter.
[3] Prior to the decision in Lepkowski, the Legislature had approved the waiver of certain jurisdictional requirements of the Court of Claims Act if same were not raised either by a pre-answer motion to dismiss or stated with particularity in the answer (see Court of Claims Act § 11[c]); see also Price v State of New York, 2003 NY Slip Op 51086[U], 2003 WL 21669922 [Ct Cl, Hard, J., May 15, 2003] ).
[4] This result is possible because unlike Supreme Court practice where the plaintiff must first file a complaint and obtain an index number before serving the defendant, Court of Claims practice does not specify the order in which the steps of filing and service must be made (compare CPLR 304 and Court of Claims Act §11).