Defendant brings a motion to dismiss the claim for lack of jurisdiction.
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,
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.
The Court has considered the following documents in deciding this motion:
Affirmation of Timothy P. Mulvey, Esquire, Assistant Attorney
General, in support, with exhibits attached
Affirmation Answer of Luis Rios, Pro Se, in
. 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
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.