New York State Court of Claims

New York State Court of Claims

BOVIN v. THE STATE OF NEW YORK, #2007-015-199, Claim No. 110478, Motion No. M-73072


Synopsis


Defendant's motion to dismiss unverified claim was granted.

Case Information

UID:
2007-015-199
Claimant(s):
JAMAL BOVIN
Claimant short name:
BOVIN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110478
Motion number(s):
M-73072
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Jamal Bovin, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 15, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves for an order dismissing the claim for lack of personal and subject matter jurisdiction. In support of dismissal defendant argues that the claimant's service of an unverified claim warrants dismissal. Claimant is an inmate proceeding pro se and seeks damages for injuries allegedly sustained on November 22, 2004 due to the accidental discharge of tear gas while he was working in the mess hall at Great Meadow Correctional Facility.

A verified claim was filed with the Clerk of the Court of Claims on February 8, 2005. According to the affidavit of Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General, an unverified claim was served by certified mail, return receipt requested, on March 4, 2005 and returned that same day to the claimant with a letter advising of the defendant's election to treat the claim as a nullity pursuant to CPLR 3022 because it was unverified (see Exhibit B). The claimant re-served the claim by certified mail, return receipt requested, on March 23, 2005 with a cover letter indicating that the verified claim was enclosed and was previously omitted in error (see Exhibit C). However, a review of this purportedly verified claim, returned to the claimant on the same day it was received, indicates that it remained unverified.

Court of Claims Act § 11 requires that a claim be verified "in the same manner as a complaint in an action in the supreme court". In Lepkowski v State of New York (1 NY3d 201) the Court of Appeals embraced the remedy set forth in CPLR 3022 for lapses in verification and stated that "there is no basis for treating an unverified or defectively verified claim or notice of intention any differently than an unverified or defectively verified complaint is treated under the CPLR in the Supreme Court" (id. at 210)[1].

Here, both unverified claims were returned to the claimant on the same day they were received by the Attorney General with explicit notification of the reason therefor. Having established that the claim herein was unverified as required by Court of Claims Act § 11 (b) the defendant's motion to dismiss is granted.


June 15, 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 March 20, 2007;
  2. Affirmations of Saul Aronson dated March 16, 2007 and March 20, 2007;
  3. Affidavit of Janet A. Barringer sworn to March 12, 2007 with exhibits;
  4. Amended affirmation of Saul Aronson dated March 28, 2007;
  5. Supplemental affidavit of Janet A. Barringer sworn to March 28, 2007 with exhibit.

[1].The subject claims were served prior to the August 9, 2005 effective date of chapter 460 of the Laws of 2005 (see Chapman v State of New York, 261 AD2d 814).