New York State Court of Claims

New York State Court of Claims

FIGUEROA v. THE STATE OF NEW YORK, #2006-030-503, Claim No. 111313, Motion No. M-70845


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
January 17, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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

to dismiss brought pursuant to Civil Practice Law and Rules §3211(a)(8):

1, 2 Notice of Motion; Affirmation by Barry Kaufman, Assistant Attorney General and attached exhibits

  1. Filed papers: Claim
No Opposition filed

David Figueroa alleges in Claim Number 111313 that on January 2, 2005 he was sitting in a chair in a day room of Downstate Correctional Facility when the legs of the chair snapped and caused him to fall backwards, striking his head and left shoulder on a metal railing. He then lost consciousness and suffered serious injury. He asserts that Defendant's agents knew of the defective and dangerous condition of the chair, and nonetheless failed to correct it.

An unverified Notice of Intention to file a claim was served upon the Office of the Attorney General on February 2, 2005, and rejected and returned to Claimant by the Defendant on the same day pursuant to Civil Practice Law and Rules §3022. [Affirmation by Barry Kaufman, ¶3; Exhibits 1 and 4]. A second unverified Notice of Intention was served on the Attorney General's Office on February 7, 2005, and returned to Claimant the same day. [Ibid. ¶4; Exhibits 2 and 4]. The claim itself - which was verified - was served by certified mail, return receipt requested on September 2, 2005. [Ibid. ¶5].

A fair reading of an Affidavit by Catherine Naveed, a Clerk in the New York City Office of the Attorney General whose duties include familiarity with the record keeping system of the Attorney General's Office regarding receipt of Notices of Intention and Claims, generally confirms that no other verified Notice of Intention was thereafter served. [Affirmation by Barry Kaufman, Exhibit 4].

The Defendant moves to dismiss based upon a failure to timely serve the Defendant with either a properly verified notice of intention to file a claim or a claim within ninety (90) days of accrual as required. Court of Claims Act §§10 and 11. Because the notices of intention were treated as nullities as required by Civil Practice Law and Rules §3022 and were immediately returned to Claimant with advice as to the reasons for the rejection of the pleading, the notices of intention did not operate to toll the period within which the claim could be served and filed.

A notice of intention to file a claim and the claim must be verified ". . . in the same manner as a complaint in an action in the supreme court" in accordance with Court of Claims Act §11 (b). In Lepkowski v State of New York, 1 NY3d 201, 210 (2003)], 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 had 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 claim herein accrued on January 2, 2005, and no verified notice of intention was served nor was a verified claim served and filed within ninety (90) days of that date. The defects in the notices of intention served were addressed with due diligence as required since the notices were rejected and returned to claimant the same day they were received. Newman v State of New York, UID# 2004-032-068, Claim No. 109088, Motion Nos. M-68407, M-68408, M-68457, M-68561, M-68562, unreported decision (Hard, J., September 21, 2004), cf. Connors v State of New York, UID# 2004-013-040, Claim No. 106810, Motion Nos. M-67620, CM-67765, unreported decision (Patti, J., June 30, 2004). Accordingly, the verified claim, served on September 2, 2005, was untimely.

The requirements for commencing a claim are jurisdictional and are strictly construed. Lichtenstein v State of New York, 93 NY2d 911, 912-913 (1999); Dreger v New York State Thruway Authority, 81 NY2d 721, 724 (1992); Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989). The Court does not have jurisdiction to proceed.

Defendant's motion to dismiss [M-70845] is in all respects granted, and Claim Number 111313 is hereby dismissed.

January 17, 2006
White Plains, New York

Judge of the Court of Claims