The following papers numbered 1 to 6 were read and considered on
Defendant’s motion to dismiss the within claim [M-71258], and on
Claimant’s cross-motion for an order dismissing the affirmative defenses,
and for nunc pro tunc relief [CM-71439]:
1,2 Notice of Motion, Affirmation in Support of Motion to Dismiss by Janet L.
Polstein, Assistant Attorney General and attached exhibits
3,4 Notice of Cross-Motion, Affirmation in Support of Cross -Motion by Jeffrey
H. Schwartz, Attorney for Claimant and attachments
5,6 Filed Papers: Claim, Answer
Denise Roberts alleges in Claim number 110715 filed with the Court of Claims on
April 4, 2005 that on August 27, 2002 she was caused to slip, fall, and suffer
serious injury due to the negligent acts or omissions of the City University of
New York [CUNY] or its agents. More specifically, she alleges that CUNY’s
agents failed to warn her about slippery floor conditions in the lobby at Medgar
Evers College, and caused the slippery floor conditions by improperly buffing,
cleaning, waxing, wetting or otherwise allowing a dangerous slippery foreign
substance to remain on the floor.
In its Answer, in addition to general denials, Defendant raises several
affirmative defenses, including jurisdictional ones, asserting the failure to
comply with both statutory requirements for timely and proper service of a
notice of intention to file a claim, or a claim, within ninety (90) days of
accrual, as well as failure to comply with Court directives allowing service and
filing of a late claim within certain time parameters.
The Court will not recite chapter and verse with regard to the past
unsuccessful attempts by Claimant’s Counsel to (simultaneously) properly
frame and verify a claim, timely serve it by the proper means on the proper
parties, and adequately support applications for various items of relief meant
to address any lack of success at these
What the Court has before it now is
Claim Number 110715, which was to have been properly served and filed on the
proper parties within thirty (30) days of the filing date of an earlier Decision
and Order filed March 4, 2005.
A claim must be “verified in the same manner as a complaint in an action
in the supreme court.” Court of Claims Act §11(b). That is why the
verification provisions of Civil Practice Law and Rules §§3020 and
3021 apply. A party receiving the defective pleading must reject it as a
nullity with due diligence, and must additionally raise the defect in a
pre-answer motion to dismiss, or in the Answer. Civil Practice Law and Rules
§3022; Court of Claims Act §11(c); see Lepkowski v State of
New York, 1 NY3d 201 (2003); Scott v State of New York,
UID#2006-036-509, Claim No. 111370, Motion No. M-70867 (Schweitzer, J., February
In the present motion, Defendant asserts that this claim was served upon it by
certified mail, return receipt requested on April 5, 2005, but it was rejected
and returned to Claimant’s attorney the same day pursuant to Civil
Practice Law and Rules §3022, because it did not “contain the
required verification language.” [Affirmation by Janet L. Polstein,
Exhibit F]. Notably, the verification indicates that it is Denise Roberts - the
Claimant - who has reviewed and is signing the Claim, but it is Claimant’s
Attorney’s signature that appears instead. [ibid.].
There is no language in the form affidavit saying the reason why it is being
signed by Claimant’s Attorney rather than Claimant, as required by Civil
Practice Law and Rules §3021. According to the affidavit of service
appended, this incorrectly verified claim was served by certified mail, return
receipt requested upon CUNY and the Attorney General’s Office, and filed
with the Court of Claims. [ibid.]. Upon receiving the rejected
claim, Claimant’s attorney returned it by regular mail to the Attorney
General’s Office, saying “I am returning the claim you have
rejected, the reason the claim is verified by counsel is because claimant is
outside the county where I maintain my office. CPLR 3020(d)(3).”
[ibid.]. This letter is received-stamped by the Attorney
General’s Office as having been received on April 12, 2005.
[ibid.]. Even if the Claimant’s Attorney had properly served a
properly verified claim on April 12, 2005, it was already untimely. A properly
verified claim was not, however, properly served, thus the Court does not even
reach any issue of timeliness.
Defendant’s motion to dismiss the claim is granted, and Claim Number
110715 is in all respects dismissed.
. See Roberts v City University of New York, Claim No.None; Motion
No. M-67199 (Scuccimarra, J., November 24, 2003); Roberts v City University
of New York, Claim No.None; Motion No. M-67966 (Scuccimarra, J., June 2,
2004); Roberts v City University of New York, Claim No.None; Motion No.
M-67966 (Scuccimarra, J., October 15, 2004); Roberts v City University of New
York, Claim No.110041; Motion No. M-69464; CM-69499 (Scuccimarra, J., March