New York State Court of Claims

New York State Court of Claims

RAMOS v. THE STATE OF NEW YORK, #2007-015-158, Claim No. 111636, Motion Nos. M-72398, CM-72500


Synopsis


In order to preserve an objection to an unverified claim Court of Claims Act § 11 (c) requires that the defendant both notify the claimant of its objection and move by pre-answer motion to dismiss or raise the objection as an affirmative defense in its answer.

Case Information

UID:
2007-015-158
Claimant(s):
JUAN RAMOS
Claimant short name:
RAMOS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111636
Motion number(s):
M-72398
Cross-motion number(s):
CM-72500
Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Ronemus & Vilensky, LLPBy: Michael B. Ronemus, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 9, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant moves to dismiss this claim on the ground that it is not verified as required by Court of Claims Act § 11(b). Claimant cross-moves for an order deeming claimant's verification timely served nunc pro tunc or, in the alternative, granting claimant permission to serve and file a verification to the "notice of claim" previously filed and served. Defendant's motion is denied as it failed to notify the claimant with due diligence of its objection to the unverified pleading as required by CPLR 3022 and Court of Claims Act § 11(c). As set forth below, raising the lack of verification as an affirmative defense is insufficient to avert a waiver of this defense absent compliance with the procedure set forth in CPLR 3022. As the result of this decision, the cross-motion is denied as moot. This claim seeks damages for personal injuries allegedly sustained by the claimant as the result of an attack by a fellow inmate at Upstate Correctional Facility on September 19, 2003. By a decision and order dated October 27, 2005, claimant's application for late claim relief was granted on the condition that "a claim complying with the requirements of Court of Claims Act § 11(b) is filed and served within 45 days of the date on which this decision and order is filed." The decision and order was filed on November 1, 2005. Thereafter, an unverified claim was timely filed, but not served until January 10, 2006, more than 45 days after the date on which the decision and order was filed. The claimant then moved to deem the prior untimely service of the claim timely nunc pro tunc, which was granted without opposition. On February 21, 2006, while the motion was pending, defendant served its answer to the claim in which it raised as an affirmative defense the fact that the claim was not verified as required by Court of Claims Act § 11(b). At no time prior to serving its answer to the claim did the defendant notify the claimant of its objection to the service of the unverified claim. Claimant did not attempt to verify the claim until November 2, 2006, shortly after the instant motion was made.

The defendant now moves to dismiss the claim on the ground that it was not verified as required by Court of Claims Act § 11(b). In deciding this motion, this Court must determine whether or not the 2005 amendment to Court of Claims Act § 11(c) has the effect of abrogating that part of the decision of the Court of Appeals in Lepkowski v State of New York (1 NY3d 201 [2003]), which held that section 11(b) embraces CPLR 3022's remedy for a lapses in verification. CPLR 3022 provides in pertinent part that "[w]here a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects to do so." Prior to Lepkowski, the issue of whether a defective or absent verification was a jurisdictional defect not susceptible to waiver received disparate treatment in the Court of Claims (see e.g., Martin v State of New York, 185 Misc 2d 799 [Ct Cl 2000] and Turner v State of New York, 2 Misc 3d 370 [Ct Cl 2003]). Noting the mounting confusion, the Lepkowski Court rendered the opinion in dictum that the remedy for a defective verification contained in CPLR 3022 applies to claims filed in the Court of Claims. In other words, the Lepkowski Court held that an objection to an unverified claim or a defectively verified claim is waived unless the defendant promptly notified the claimant of its intention to treat the claim as a nullity. Following Lepkowski, however, divergent opinions concerning the procedure to be followed continued, with Judge Minarik holding that an improperly verified claim was a nullity without the requirement of a motion or answer (Lake v State of New York, Ct Cl, November 18, 2004 [Claim No. 109345, M-68779] Minarik, J., unreported[1]) and this Court holding that the claim must be disposed of by way of a motion either before an answer is due or after the defense is properly preserved in an answer (Myers v State of New York, Ct Cl, December 1, 2004 [Claim No. 109325, M-69072; M-69135, UID 2004-015-444] Collins, J., unreported). In Meyers, this Court stated: "A defense, even one which has been preserved by timely and appropriate action by the defendant pursuant to CPLR 3022, is a shield and not a sword which strikes the pleading. More definitive action on the part of the defendant is required either through service of an answer asserting the defense or a pre-answer motion to dismiss the unverified claim." As reflected in the Assembly Memorandum in support of the amendment to Court of Claims Act § 11 (c) (2005 A.B. A8174), this disparate treatment of the issue led to the amendment of this section in 2005. Section 11(c) now states in pertinent part:
Any objection or defense based upon the 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 (emphasis added).
The language of the 2005 amendment is imprecise in that CPLR 3022 does not "set forth" a "verification requirement" as referenced in new (iii)[2]. However, it is clear from the mere reference to CPLR 3022 that the amendment was intended to require that the defendant both notify the claimant of its rejection of an unverified claim with due diligence and assert the failure to verify the claim as a defense in the answer or by pre-answer motion to dismiss. A failure to fulfill either obligation effects a waiver of the defense under the statute, as amended. (see Scott v State of New York, 11 Misc 3d 1079[A], Ct Cl, 2006 [Claim No. 111370, Motion No. M-70867, UID #2006-036-509] Schweitzer, J., unreported; see also Roberts v City University of New York, Ct Cl, 2006 [Claim No. 110715, Motion No. M-71258, UID # 2006-030-553] Scuccimarra, J., unreported ).

Based on the foregoing, this Court holds that the recent amendment to Court of Claims Act § 11(c) requires that in order to preserve the defense that a claim is defectively verified a defendant must both fully comply with the procedure prescribed in CPLR 3022 and assert the defense of defective verification either in the answer or a pre-answer motion to dismiss. Failure to comply with either requirement results in a waiver of the defense pursuant to Court of Claims Act § 11 (c) (iii). Here, the defendant's failure to notify the claimant with due diligence of its objection to the unverified pleading constituted a waiver of this defense notwithstanding the assertion of this defense in its answer. Accordingly, the defendant's motion to dismiss is denied and the claimant's cross-motion is denied as moot.



March 9, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated October 12, 2006;
  2. Affirmation of Glenn C. King dated October 12, 2006 with exhibits;
  3. Notice of cross-motion dated November 2, 2006;
  4. Affirmation of Michael B. Ronemus dated November 2, 2006 with exhibits;
  5. Affirmation of Glenn C. King dated November 16, 2006;
  6. Affirmation of Glenn C. King dated November 22, 2006.


[1].Unreported decisions from the Court of Claims are available via the internet at http://www.nyscourtofclaims.state.ny.us./decision.htm.
[2].CPLR 3022 is entitled "Remedy for defective verification".