New York State Court of Claims

New York State Court of Claims

Rios v. STATE OF NEW YORK, #2006-018-531, Claim No. 110457, Motion No. M-71459


Synopsis


Claim dismissed pursuant to Defendant’s motion for lack of jurisdiction.

Case Information

UID:
2006-018-531
Claimant(s):
LUIS RIOS, Individually and as Administrator of the Estate of RAMON GILBERT RIOS,
Claimant short name:
Rios
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110457
Motion number(s):
M-71459
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
LUIS RIOSPRO SE
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: TIMOTHY P. MULVEY, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 18, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant brings a motion to dismiss the claim for lack of jurisdiction. Claimant

opposes the motion.

Claimant personally served an unverified claim upon the Attorney General’s office on February 3, 2005. That claim was rejected by the Attorney General’s office and treated as a nullity by a letter dated February 3, 2005. That same claim was filed with the Clerk of the Court of Claims on February 4, 2005. On February 22, 2005, Claimant served another copy of the claim properly verified upon the Attorney General by regular mail.

Defendant served an answer to the claim on March 17, 2005. In the answer, Defendant raises the failure to properly serve the claim (the seventh affirmative defense) and the failure to serve a properly verified claim (the eighth affirmative defense).

The claim must be dismissed. Court of Claims Act § 11(a)(i) requires that the claim be filed with the Clerk of the Court and served upon the Attorney General by certified mail, return receipt requested or by personal service. The claim itself must, in addition to the other requirements, be properly verified “in the same manner as a complaint in an action in supreme court” (Court of Claims Act § 11[b]).

The first claim, served upon the Defendant on February 3, 2005, was not verified. Defendant properly and promptly rejected the claim, notifying Claimant and his counsel, in accordance with CPLR 3022, that it was treating the claim as a nullity because it was not properly verified (Defendant’s motion documents Exhibit C, CPLR 3022, Lepkowski v State of New York, 1 NY3d 201).[1] The properly verified claim served upon Defendant on February 22, 2005, was served by regular mail, not certified mail, return receipt requested.

The requirements of §§ 10 and 11 of the Court of Claims Act are jurisdictional prerequisites to maintaining an action in the Court of Claims, and the failure to comply results in the Court lacking the jurisdiction to hear the claim. The State relinquished its sovereign immunity and consented to be sued and subject to liability, in accordance with the same rules of law applicable to supreme court actions against individuals or corporations “provided the claimant complies with the limitations of this article” (Court of Claims Act § 8). To disregard the failure to serve a verified pleading or properly serve the claim in accordance with Court of Claims Act § 11(a)(i), would subject the State to suit despite the failure to comply with the requirements for commencing an action in the Court of Claims. The Court does not have the authority to ignore the defect (see Newman v State of New York, Ct Cl, Hard, J. dated September 21, 2004, Claim No. 109088, Motion Nos. M-68407, M-68408, M-68457, M-68561, M-68562, UID # 2004-032-068). The fact that Claimant is now pro se and was unaware of the requirement that the claim be served by certified mail, return receipt requested, does not change this decision.

Defendant’s motion is GRANTED and the claim is DISMISSED.


September 18, 2006
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion..........................................................................1


Affirmation of Timothy P. Mulvey, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto......................2


Affirmation Answer of Luis Rios, Pro Se, in opposition.............3


[1]. As of August 9, 2005, Defendant is required to reject the claim with due diligence in accordance with CPLR 3022 and either make a pre-answer motion to dismiss or raise the issue of improper verification with particularity in its answer in accordance with Court of Claims Act § 11(c) as amended. Since the State rejected the claim in accordance with CPLR 3022 prior to August 9, 2005, raising the issue of improper verification in the answer was not necessary (see Newman v State of New York, Ct Cl, Hard, J, dated September 21, 2004, Claim No. 109088, Motion Nos. M-68407, M-68408, M-68457, M-68561, M-68562, UID # 2004-032-068). The improper verification raised in Defendant’s answer served on March 17, 2005, was not timely interposed for purposes of the unverified claim served upon Defendant on February 3, 2005.