New York State Court of Claims

New York State Court of Claims

MONTGOMERY v. THE STATE OF NEW YORK, #2007-028-504, Claim No. 111054, Motion No. M-72117


Synopsis



SUMMARY: Claim is dismissed where the copy of the Claim served on Defendant was properly and timely rejected as a nullity because it was unverified (CPLR 3022) and no effort was made to cure the defect.


Case Information

UID:
2007-028-504
Claimant(s):
WALTER MONTGOMERY
Claimant short name:
MONTGOMERY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111054
Motion number(s):
M-72117
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
GOLDSTEIN & GOLDSTEIN, P.C.BY: Mark I. Goldstein, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Ellen Matowik-Russell, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 12, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the Court’s own motion for clarification regarding service of this claim:

1. Order to Show Cause, issued by the Court;


2. Affidavit of Valerie Clerk, New York State Department of Law, with annexed Exhibits; and


3. Letter of Mark I. Goldstein, Esq., with annexed Exhbits.


Filed papers: Claim

By an Order to Show Cause, filed on August 11, 2006, the Court requested both parties to submit written statements relating to service of this claim. The Order specifically directed the following:
Claimant should submit affidavits establishing personal service or a copy of the certified mail, return receipt evidencing proper service by that alternative method. If defendant wishes to assert that the claim was not served on the Attorney General, a statement should come from someone with personal knowledge of the contents of the files and records of the Department of Law.
The Court’s file shows that the Claim in this action was filed on June 24, 2005. It alleges that on July 9, 2003, Claimant was negligently confused with another individual and consequently arrested and incarcerated. The Claim recites that a Notice of Intention was served on the Attorney General on October 3, 2003. The Claim is not verified. Attached to the Claim is an Affidavit of Service, stating that on June 21, 2005 a copy of the Claim was personally served on the Attorney General. The Court’s file also contains a copy of a letter from an Assistant Attorney General, dated June 21, 2005, with copies of the Claim that was served on the Attorney General on that date and a letter to Claimant’s counsel stating that the Claim is being rejected as a nullity, pursuant to CPLR 3022, because it was unverified.

In response to the Order to Show Cause, Defendant has submitted the affidavit of Valerie Clerk, a clerk in the Claims Bureau of the New York City Office of the Attorney General

and a person familiar with the records of that office. Attached to her affidavit are copies of the documents that were earlier conveyed to the Court: the Claim that was served on the Attorney General on June 21, 2005 and the letter from Defendant to counsel for Claimant rejecting the Claim as a nullity on the ground that it was unverified. Counsel for Claimant has submitted several documents including a received-stamped copy of the Notice of Intention, showing that it was received by Defendant on October 3, 2003 and a received-stamped copy of the Claim, showing that it was received by Defendant on June 21, 2005. Claimant’s counsel makes no mention of the subsequent rejection of the Claim by Defendant.

Pursuant to CPLR 3022, a party that is entitled to a verified pleading may treat an unverified or defectively verified pleading as a nullity “provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do.” Court of Claims Act § 11(b) requires that Claims be “verified in the same manner as a complaint in an action in the supreme court” (see Lepkowski v State of New York, 1 NY3d 201 [2003]). Here, Defendant acted with “due diligence” and adequately set forth the reason for the rejection: a missing verification (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3022, C3022:2). Inasmuch as the Claim served on Defendant was properly and timely rejected as a nullity and counsel for Claimant failed to cure the defect by re-serving a properly verified Claim, the State has not been served with the Claim in this action.

The requirements set forth in Court of Claims Act § 11 are jurisdictional in nature and, as such, must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687 [3d Dept 2000]), and a Claimant’s failure to serve a copy of the claim on the Attorney General personally or by certified mail, return receipt requested is a fatal jurisdictional defect and deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Bogel v State of New York, 175 AD2d 493 [3d Dept 1991]).

Consequently, Claim No. 111054 is dismissed.



January 12, 2007
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims