New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2006-030-540, Claim No. 111371, Motion No. M-71230


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:
May 18, 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

for leave to reargue a previous motion to dismiss:

1,2 Notice of Motion, Affirmation in Support by Kathleen M. Arnold, Assistant Attorney General and attachments, Memorandum of Law

  1. Filed papers: Claim; Scott v State of New York, Claim No. 111371, M-70866, unreported decision (Scuccimarra, J. January 12, 2006).
No Opposition Filed

Kemorley Scott alleges in Claim Number 111371 that while he was incarcerated at Downstate Correctional Facility Defendant’s agents failed to provide him with adequate medical care.

In its prior Decision and Order the Court denied Defendant’s pre-answer motion to dismiss, finding that because Defendant had not rejected the unverified pleading pursuant to Civil Practice Law and Rules §3022, and the Court of Appeals determination in Lepkowski v State of New York, 1 NY3d 201 (2003)[1], the defense based upon a lack of verification had been waived. Additionally, the Court found that the Defendant had not raised any other issues implicating either the subject matter or personal jurisdiction of this Court.

“A motion for reargument, addressed to the discretion of the court, is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application.” Foley v Roche, 68 AD2d 558, 567-568 (1st Dept 1979); See Civil Practice Law and Rules §2221(d)(2). Additionally, such a motion should be brought within thirty (30) days after service of a copy of the order with notice of entry, or in any event prior to the entry of any judgment by the appellate court to which an appeal has been taken. Civil Practice Law and Rules §2221(d)(3); See Bray v Gluck, 235 AD2d 72 (3d Dept 1997), lv dismissed 91 NY2d 1002 (1998).

As an initial matter, the motion is timely, since it was brought within thirty (30) days of the filing of the Decision and Order on the motion.

The amendment to the Court of Claims Act - effective August 9, 2005 and thus effective when the Court rendered its original determination - that is now highlighted by Defendant but had not been referenced in its underlying motion to dismiss - and the accompanying legislative memoranda, do not convince the Court otherwise. See Court of Claims Act §11(c)(iii); [Affirmation in Support by Kathleen M. Arnold, Assistant Attorney General, Exhibit B]. Although this Court, too, did not make reference to the amended statute in deciding the State’s pre-answer motion to dismiss, the Court nonetheless implicitly found that the amendment did not change the procedural requirements.

As noted in memoranda attached to the bill, the proponents thought that the Court of Appeals language in Lepkowski required clarification because of some divergence in the opinions rendered by the Court of Claims as to the procedure to be followed by the Defendant faced with an unverified claim. [See Affirmation in Support by Kathleen M. Arnold, Exhibit B]. Some Judges required that the Defendant move to dismiss the claim or set forth the jurisdictional defense in the answer, and others believed that the rejection of the improperly verified claim as a nullity pursuant to Civil Practice Law and Rules §3022 would alone suffice. [id.].

Placed in context, the amendment provides that “. . . [a]ny objection or defense based upon failure to comply . . . (iii) with the verification requirements 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 the 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). The “verification requirement” of Court of Claims Act §11(b) alluded to is that “. . . the 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.” Court of Claims Act §11(b). The Civil Practice Law and Rules “verification requirement” requires that the recipient of an unverified pleading who “elects” to treat it as a nullity give notice of his intentions to the adverse party with due diligence. Civil Practice Law and Rules §3022.

As has been pointed out in another comprehensive determination involving another of this Claimant’s unverified claims[2], the amended statute incorporates the procedural provisions of Civil Practice Law and Rules §3022, rather than replaces them. See Scott v State of New York, UID#2006-036-509, Claim No. 111370, Motion No. M-70867 (Schweitzer, J., February 27, 2006). As the Court stated therein, “The argument that the intention was to overrule Lepkowski and provide that defendant could raise the verification issue by motion or answer instead of following the CPLR 3022 procedure does not find support in either the plain language of the statute, which expressly references CPLR 3022, or in the Assembly Memorandum, which states that its purpose was to clarify the procedure to be followed subsequent to rejection pursuant to CPLR 3022 and to resolve the perceived conflict . . . ” in the Court of Claims decisional law.

Accordingly, the papers submitted do not establish that the Court misapplied any controlling principle of law and, therefore Defendant’s motion is in all respects denied.

May 18, 2006
White Plains, New York

Judge of the Court of Claims

[1].In Lepkowski v State of New York, 1 NY3d 201, 209, n. 5, 210 (2003), the Court of Appeals reaffirmed that the requirements of Court of Claims Act §11(b) should be adhered to, but more importantly provided that the recipient of an unverified pleading - generally the Defendant - waives objection to an absent or defective verification and may not “treat it as a nullity” if the pleading is not returned with notification of the reasons for the defect with due diligence in accordance with Civil Practice Law and Rules §3022.
[2]. In addition to the Claim before this Court, and the underlying Claim in the motion considered by Judge Schweitzer, Mr. Scott also filed a claim accruing in Mid-State Correctional Facility that is before Judge Midey, Claim Number 111369. Judge Midey denied a Defense motion to dismiss [M-70780, M-70865] for similar reasons, finding that the Civil Practice Law and Rules §3022 rejection requirements had not been met.