New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2005-030-566, Claim No. 111371, Motion No. M-70866


Synopsis



Case Information

UID:
2005-030-566
Claimant(s):
KEMORLEY SCOTT
1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
SCOTT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111371
Motion number(s):
M-70866
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
KEMORLEY SCOTT, PRO SE
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: KATHLEEN M. ARNOLD, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
December 23, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 3 were read and considered on Defendant’s motion


to dismiss:

1,2 Notice of Motion, Affirmation in Support by Kathleen M. Arnold, Assistant Attorney General and attachment

  1. Filed papers: Claim
Kemorley Scott alleges in Claim Number 111371 that while he was incarcerated at Downstate Correctional Facility (hereafter Downstate) Defendant’s agents failed to provide him with adequate medical care.

In this pre-answer motion to dismiss, the Defendant asserts first that the Court lacks jurisdiction over the named Defendant: Downstate Correctional Facility, and second that because the claim is not verified, the Court lacks jurisdiction over the State of New York.

The claim filed in the Office of the Chief Clerk of the Court of Claims contains an affidavit of service indicating that the State of New York was properly served, in that the Office of the Attorney General was served with a copy of the claim by certified mail, return receipt requested. Court of Claims Act §11. Nothing in the papers submitted by the Defendant suggests otherwise. Accordingly, the fact that the name used in the case caption is incorrect is hardly one of jurisdictional dimension. While the Assistant Attorney General is correct in noting that the Court of Claims has jurisdiction to hear claims against the State of New York and other specifically named entities [See Court of Claims Act §9], it is well-settled that if an individual agency is erroneously named in the caption, if the proper party has been served by the methods required then the matter is simply a ministerial mistake. The Court has jurisdiction over the appropriate party: the State of New York, and the caption is amended to reflect the proper party.

With respect to the argument that the failure to verify the claim divests the court of jurisdiction, since it does not appear that Defendant has rejected the unverified pleading as required, the argument is waived. [See Civil Practice Law and Rules §3022; Lepkowski v State of New York, 1 NY3d 201 (2003)]. In Lepkowski v State of New York, supra, at 210, the Court of Appeals clarified the requirement that a Defendant reject an unverified pleading pursuant to Civil Practice Law and Rules §3022 or else waive any defense based upon a lack of verification and said:
“Pursuant to CPLR 3022, ‘when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient ‘with due diligence’ returns the [pleading] with notification of the reason(s) for deeming the verification defective” (Matter of Miller v Board of Assessors, 91 NY2d 82, 86 [1997]) . . . A defendant who does not notify the adverse party’s attorney with due diligence waives any objection to an absent or defective verification.

[Court of Claims Act] Section 11 (b) requires the claim and notice of intention to be verified ‘in the same manner as a complaint in an action in the [S]upreme [C]ourt. . . . Because the Legislature has mandated that verification . . . in the Court of Claims [follow] the same ‘method of action’ or ‘mode of procedure’ employed for an action in Supreme Court, there is no basis for treating an unverified or defectively verified claim or notice of intention any differently than an unverified or defectively verified complaint is treated under the CPLR in Supreme Court. Section 11 (b) therefore embraces CPLR 3022's remedy for lapses in verification.”
The Defendant does not indicate that the procedures for rejection of an unverified pleading have been followed, and has not raised any other issues implicating either the personal or subject matter jurisdiction of this Court.

Defendant’s motion to dismiss [M-70866] is in all respects denied.

December 23, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims