New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2006-009-032, Claim No. 111369, Motion No. M-71358


Synopsis


Defendant’s motion seeking leave to reargue a prior motion in which the Court denied its motion for dismissal (based upon a lack of verification) was denied.

Case Information

UID:
2006-009-032
Claimant(s):
KEMORLEY SCOTT
Claimant short name:
SCOTT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111369
Motion number(s):
M-71358
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
KEMORLEY SCOTT, Pro Se
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Kathleen M. Arnold, Esq.,
Assistant Attorney General
Of Counsel.
Third-party defendant’s attorney:

Signature date:
June 15, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought this motion seeking leave to reargue a prior motion in which this Court denied its motion for dismissal of the claim. Claimant has not submitted any papers in opposition to this motion.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2


Memorandum of Law 3


Filed papers: Claim.

In this claim, claimant alleges that the State failed to provide him with proper medical treatment while he was an inmate incarcerated at Mid-State Correctional Facility.[1]

After being served, defendant brought a pre-answer motion to dismiss, contending that this Court lacked jurisdiction due to claimant’s failure to verify his claim. In a Decision and Order dated January 25, 2006[2] (see Exhibit A to Items 1, 2), this Court denied defendant’s motion to dismiss, finding that defendant had not established proper rejection of the unverified claim as required by the Court of Appeals decision in Lepkowski v State of New York, 1 NY3d 201.

Although defendant did not make reference to § 11(c) of the Court of Claims Act in its motion to dismiss, defendant now contends in this application that this Court failed to consider the implications of legislative amendments to § 11(c) in its prior Decision and Order.

Pursuant to Court of Claims Act § 11(b), a claim must be “verified in the same manner as a complaint in an action in the supreme court.” If a pleading must be verified, CPLR 3022 authorizes the recipient of an unverified pleading to treat it as a nullity, providing that the recipient returns the pleading with due diligence, notifying the sender of the reasons for rejection. In Lepkowski, the Court of Appeals specifically addressed the relationship between the verification requirements of Court of Claims Act § 11(b) and CPLR 3022, and determined that “[s]ection 11(b) therefore embraces CPLR 3022's remedy for lapses in verification.” (Lepkowski v State of New York, 1 NY3d 201, 210). In effect, the Court of Appeals determined that in the Court of Claims, the State must first comply with CPLR 3022 in order to preserve a defense that a claim was either unverified or defectively verified.

After the Court of Appeals decision in Lepkowski, the State Legislature passed legislation amending § 11(c) of the Court of Claims Act, in order to address “divergent opinions” (see Senate Memorandum in Support of Senate Bill S5574 and Assembly Memorandum in Support of Assembly Bill A8174, both set forth as Exhibit B to Items 1, 2), concerning the proper procedures to be followed after a claim is rejected for an absent or defective verification (L.2005, Ch. 460, effective August 9, 2005).[3]

This amendment to § 11(c) provides that “[a]ny objection or defense based upon failure to comply with ... (iii) the verification requirement as set forth in subdivision b of this section and rule three thousand twenty-two of the civil practice law and rules is waived unless raised, with particularity, either by a motion to dismiss made before service of a responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure.” (Court of Claims Act § 11[c][iii]).

Since § 11(b) (which requires that a claim be verified) and CPLR 3022 (which requires the recipient of an unverified pleading to first reject such pleading) are both specifically referenced in this amendment, it is this Court’s determination, consistent with Lepkowski, that this amendment to § 11(c) requires a party to first reject an unverified claim prior to raising the defense of lack of verification by motion or answer. In other words, this amendment to § 11(c) incorporated the requirements of Lepkowski and established the appropriate procedure to be followed after rejection of an unverified claim, but did not eliminate the requirement that a claim lacking verification must first be rejected.

In its original motion to dismiss, defendant did not allege or submit any evidence whatsoever that the unverified claim in this matter had been rejected, but simply asserted that this Court lacked jurisdiction since the claim was not verified. As previously noted herein, this Court, relying upon Lepkowski, denied defendant’s motion to dismiss. Since defendant had not rejected the claim, it was not necessary for this Court to consider at that time whether defendant had complied with the requirements of § 11(c), as recently amended. Defendant’s reliance upon § 11(c), without first rejecting the unverified claim, is misplaced.

Based on the foregoing, and pursuant to CPLR 2221(d), the Court finds that it did not overlook or misapprehend any matter of fact or controlling principle of law. Accordingly, it is

ORDERED, that Motion No. M-71358, seeking leave to reargue, is hereby DENIED.


June 15, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1]. The Court is aware that claimant has filed two other claims with the same allegations of improper medical treatment as set forth in this claim, with Claim No. 111370 accruing at Fishkill Correctional Facility and Claim No. 111371 accruing at Downstate Correctional Facility.
[2]. Scott v State of New York, Ct Cl, January 25, 2006, Midey, J., Claim No. 111369, Motion No. M-70780 and Motion No. M-70865.
[3]. The “divergent opinions” from the Court of Claims referenced in the legislative memoranda were: Lake v State of New York (Claim No. 109345, M-68779), in which Judge Minarik considered a properly rejected claim a nullity, not requiring a motion or answer, and Meyers v State of New York, (Claim No. 109235, M-98072, M-69135), in which Judge Collins, following rejection, required the State to assert the lack of verification as a jurisdictional defense in a motion or answer.