New York State Court of Claims

New York State Court of Claims

KAIRIS v. STATE OF NEW YORK, #2006-038-502, Claim No. 112174, Motion No. M-72168


Synopsis


Claimant’s motion to dismiss answer denied; improper verification of answer disregarded pursuant to CPLR 2001.

Case Information

UID:
2006-038-502
Claimant(s):
PAUL KAIRIS
Claimant short name:
KAIRIS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112174
Motion number(s):
M-72168
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
PAUL KAIRIS, Pro se
Defendant’s attorney:
ELIOT SPITZER, Attorney General of the State of New YorkBy: Kathleen M. Arnold, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 14, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks an order dismissing defendant’s answer to this claim sounding in bailment. Claimant contends that the answer is not properly verified and should therefore be dismissed in its entirety. He further seeks dismissal of the defenses asserted in the answer.

Claimant argues that defendant’s failure to have the verification notarized is a defect warranting dismissal of the answer.[1] Claimant’s recourse for this alleged defect is not, in the first instance, a motion to dismiss the answer. Rather, claimant was entitled to “treat [the allegedly defective pleading] as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do” (CPLR 3022). Having failed to do so, claimant deprived defendant of the opportunity to correct the alleged defect.

In any event, the lack of notarization of a verification by the assistant attorney general is not a fatal defect. A statement affirmed by an attorney is the equivalent of a sworn statement (see CPLR 2106; Racz v State of New York, Ct Cl, November 1, 2004, Scuccimarra, J., Cl No. 109495, M-68979; Siegel, NY Prac § 205, at 340 [4th Ed]). Certainly, it would have been the far better practice for the assistant attorney general in this case to state that the verification was made upon her affirmation rather than that she had been “duly sworn” – or for the assistant attorney general to have been actually sworn. However, inasmuch as claimant does not contend that he was not timely served with defendant’s answer and there is no apparent prejudice flowing from the flawed verification, the incorrect verification is a technical defect that will be disregarded (see CPLR 2001; Matter of Miller v Board of Assessors, 91 NY2d 82, 87 [1997]; Matter of WNYT-TV v Moynihan, 97 AD2d 555 [3d Dept 1983]).[2]

Claimant’s motion further seeks dismissal of the six defenses set forth in the verified answer on the general ground that each is “invalid, unlawful and erroneous.” As the movant seeking dismissal of defenses, claimant bears the burden of proving his entitlement to such relief (see Santilli v Allstate Ins. Co., 19 AD3d 1031, 1032 [4th Dept 2005]; Town of Hempstead v Lizza Indus., Inc., 293 AD2d 739, 740 [2d Dept 2002]). Claimant fails to meet this burden with respect to the first defense – that another pending claim includes the same loss – because claimant has not submitted a copy of that other claim in support of his motion, nor has claimant even alleged facts proving that the defense is “totally incorrect and without substance.” The remaining five defenses asserted in the answer all rest upon factual bases that claimant’s motion does not address, and thus claimant has failed to make a prima facie showing of his entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

Claimant’s motion to dismiss the answer is DENIED.



November 14, 2006
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims



Papers considered:


(1) Claim, filed April 4, 2006;

(2) Answer, filed May 8, 2006;

(3) Claimant’s Reply to Answer and Motion to Strike, filed August 4, 2006;

(4) Affirmation in Opposition of Kathleen M. Arnold, Esq., dated September 25, 2006, with exhibits A-B.



[1]. The Court notes that defendant failed to address this issue in its submission in opposition to the motion. While the Court will address the issue on the merits, defense counsel should be mindful of its obligation to address each and every issue raised in a motion, and is reminded that issues left unaddressed may be deemed conceded (see Weldon v Rivera, 301 AD2d 934, 935 [3d Dept 2003]).
[2]. Similarly, in the absence of allegations that defendant did not have adequate time to answer the motion or that it was otherwise prejudiced by this pro se claimant’s failure to serve and file a notice of motion, the Court will overlook that procedural defect (see CPLR 2001; 2211; 2214 [a]; 22 NYCRR 206.8; cf. National Microtech, Inc. v Satellite Video Serv., Inc., 107 AD2d 860, 861-862 [3d Dept 1985], lv dismissed 64 NY2d 612 [1985], lv dismissed 65 NY2d 637 [1985] ).