New York State Court of Claims

New York State Court of Claims

ORTIZ v. STATE OF NEW YORK, #2006-015-105, Claim No. 111279, Motion No. M-71527


Synopsis


Claim dismissed for lack of jurisdiction due to claimant's failure to file a verified claim with the Clerk of the Court. Court of Claims Act requires both filing and service of a verified claim.

Case Information

UID:
2006-015-105
Claimant(s):
MARCUS A. ORTIZ
Claimant short name:
ORTIZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111279
Motion number(s):
M-71527
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Marcus A. Ortiz, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 19, 2006
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The instant claim is dismissed sua sponte for lack of jurisdiction and claimant's motion pursuant to CPLR 3211 (b) seeking an order dismissing the defenses set forth in defendant's answer is denied as academic. A verified claim lacking the signature of a notary public was filed with the Clerk of the Court on August 22, 2005 and served upon the Attorney General by certified mail, return receipt requested on August 24, 2005. According to the allegations set forth in paragraph 12 of claimant's affidavit in support of his motion, the Attorney General promptly returned the unverified[1] claim notifying claimant of the reason for its return. In response to the Attorney General's rejection of the claim claimant served a verified claim upon the Attorney General by certified mail, return receipt requested which was received on September 8, 2005. Claimant, however, failed to file a verified claim with the Clerk of the Court as required by Court of Claims Act § 11. In both its answer to the original claim filed on October 3, 2005 and its answer to the subsequently served verified claim the defendant raised as and for a fourth defense "[t]he claim is defective as it is unverified." Defendant, having thus preserved this defense (see Lepkowski v State of New York, 1 NY3d 201) the Court now sua sponte dismisses this claim for lack of jurisdiction.

Court of Claims Act § 11 (a) (i) requires both the filing of a claim with the Clerk of the Court of Claims and service of the claim upon the Attorney General by one of the methods of service prescribed therein. Additionally, paragraph (b) of section 11 provides that "[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court." These paragraphs read together require that both the claim which is filed and the claim which is served must be verified. Compare Holman v State of New York, Ct Cl, December 13, 2002 [Claim No. 101699, Motion No. M-65652, UID # 2002-018-197] Fitzpatrick, J., unreported in which Judge Fitzpatrick held that the filed original claim must bear the complete verification citing 22 NYCRR § 206.5 (a)[2].

"It is established law that the 'requirements of * * * section 11 of the Court of Claims Act are jurisdictional in nature and, therefore must be strictly construed' " (Finnerty v New York State Thruway Auth., 75 NY2d 721; see also Newman v State of New York, 5 Misc 3d 640). Except for a recent legislative change allowing for waiver of the verification requirement under circumstances not relevant here, the requirements of section 11 continue to be jurisdictional conditions precedent to suit tied to the State's waiver of its sovereign immunity.

Here claimant, upon receipt of the Attorney General's notice pursuant to CPLR 3022, re-served a verified claim upon the Attorney General but failed to re-file the verified claim with the Clerk of the Court. The facts of this case are distinguishable from those in Kilpatrick v State of New York, 9 Misc 3d 1125 (A), 2005 WL 2899873 where claimant upon receiving a CPLR 3022 notice from the Attorney General re-served a verified claim and then filed an affidavit attesting to such service and a verification with the Clerk of the Court. The Clerk, in turn, attached the later-received verification to the claim already on file and advised claimant and presumably the Attorney General of its action.

In this case claimant merely re-served the Attorney General and took no steps whatsoever to cure the jurisdictionally defective claim filed with the Clerk of the Court. The instant claim is therefore dismissed without prejudice to an application for late claim relief pursuant to Court of Claims Act § 10 (6). The dismissal of the claim renders academic claimant's motion to dismiss the defenses set forth in the answer and claimant's motion for such relief is denied.

July 19, 2006
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated April 4, 2006;
  2. Affidavit of Marcus A. Ortiz sworn to April 5, 2006 with exhibits;
  3. Affirmation of Michael W. Friedman dated April 25, 2006;
  4. Response of Marcus A. Ortiz sworn to May 3, 2006.

[1].CPLR Rule 3022 states in relevant part: "A defectively verified pleading shall be treated as an unverified pleading".
[2].Section 206.5 (a) of the Uniform Rules for the Court of Claims was subsequently amended.