New York State Court of Claims

New York State Court of Claims

ELLINGTON v. THE CITY UNIVERSITY OF NEW YORK, #2007-016-022, Claim No. 111911, Motion Nos. M-72533, CM-72670


Synopsis


Verification which contained a notarization that failed to name the county where such notarization occurred was found not defective.

Case Information

UID:
2007-016-022
Claimant(s):
REBECCA B. ELLINGTON
1 1.The caption has been amended to reflect that the sole proper defendant is the City University of New York.
Claimant short name:
ELLINGTON
Footnote (claimant name) :

Defendant(s):
THE CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the City University of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111911
Motion number(s):
M-72533
Cross-motion number(s):
CM-72670
Judge:
Alan C. Marin
Claimant’s attorney:
Law Offices of Marie Ann Mar, Esq.By: James M. Visser, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Ellen Matowik Russell, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 8, 2007
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In her claim, Rebecca B. Ellington alleges that because of defendant’s negligence, she tripped and fell on November 1, 2004 at Hunter College. Claimant moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act. Defendant cross-moves for summary judgment dismissing the claim. Ms. Ellington has made this motion because defendant’s first affirmative defense is that her notice of intention contained a defective verification; defendant’s cross-motion is made on the same basis. The sole alleged defect in the verification is that the notary public failed to indicate the venue, i.e., the name of the county in which the verification was notarized.

Executive Law §137 provides that in exercising his or her powers, a notary shall, among other things, indicate the venue, i.e., the county where the notarization occurred. Such section also provides in relevant part that:
No official act of such notary public shall be held invalid on account of the failure to comply with these provisions. If any notary public shall wilfully fail to comply with any of the provisions of this section, he shall be subject to disciplinary action by the secretary of state. In all the courts within this state the certificate of a notary public, over his signature, shall be received as presumptive evidence of the facts contained in such certificate . . .


See Parkhill v Cleary, 305 AD2d 1088, 1089, 759 NYS2d 262, 265 (4th Dept 2003) (“the technical defects in the jurat of the affidavit . . . do not invalidate the official act of the notary public . . .”).

In Turner v State of New York, Ct Cl, November 12, 2003 (unreported, claim no. 104542, motion no. M-66523, UID #2003-013-025,[2] Patti, J.), when notarizing the verification on a claim, the notary mistakenly indicated that his commission had expired. The court found that the verification was valid, noting that the mistake was “an inadvertent error of no consequence . . .” See also Matter of Liberty Mutual Insurance Company v Bohl, 262 AD2d 645, 694 NYS2d 72 (2d Dept 1999).

In view of the foregoing, the failure of the notary in this case to specify the county where the notarization occurred failed to render the verification defective. Accordingly, having reviewed the submissions[3], IT IS ORDERED that cross-motion no. CM-72670 be denied and motion no. M-72533 be denied as moot.

June 8, 2007
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [2]This and other decisions of the Court of Claims may be found on the court’s website: www.nyscourtofclaims.state.ny.us.
  2. [3]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibits 1 through 12; defendant’s notice of cross-motion with annexed affirmation and exhibits A through C; and claimant’s “Reply & Affirmation in Opposition to Cross Motion” with exhibits 1 through 4. In addition, oral argument was heard on April 13, 2007.