New York State Court of Claims

New York State Court of Claims

ROBERTS v. CITY UNIVERSITY OF NEW YORK, #2006-030-553, Claim No. 110715, Motion Nos. M-71258, CM-71439


Synopsis


REVERSED 41 AD3d 825 2d Dept 6/26/07

Case Information

UID:
2006-030-553
Claimant(s):
DENISE ROBERTS
Claimant short name:
ROBERTS
Footnote (claimant name) :

Defendant(s):
CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110715
Motion number(s):
M-71258
Cross-motion number(s):
CM-71439
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
JEFFREY H. SCHWARTZ, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: JANET L. POLSTEIN, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
July 3, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:
REVERSED 41 AD3d 825 2d Dept 6/26/07
See also (multicaptioned case)



Decision

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 ventures.[1] 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.[2]

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 27, 2006).

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.
Claimant’s Cross-Motion
Denied, except that the Court agrees that matters should be resolved on the merits, and that Claimant has already established the appearance of merit for late claim purposes. Accordingly, the Court sua sponte extends the time within which Claimant must serve and file a properly verified claim upon the proper parties to within thirty (30) days of the filing date of this decision and order. It is suggested that Counsel not wait until the thirtieth day to accomplish this task.

July 3, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims





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[1]
. 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 4, 2005).
[2]
. Roberts v City University of New York, Claim No.110041; Motion No. M-69464; CM-69499 (Scuccimarra, J., March 4, 2005).