New York State Court of Claims

New York State Court of Claims

STEWART v. THE STATE OF NEW YORK, #2007-028-521, Claim No. 111220, Motion No. M-72111


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
DeLORENZO LAW FIRM, LLPBY: Paul E. DeLorenzo, Esq.
Defendant’s attorney:
BY: Kathleen M. Arnold, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 18, 2007

Official citation:

Appellate results:

See also (multicaptioned case)

By an Order to Show Cause, filed on August 10, 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 August 3, 2005. It alleges that on two separate occasions, May 6, 2004 and June 21, 2004, Claimant was stopped by police and taken into custody on an outstanding warrant, issued by the Albany Police Department, for non-payment of a traffic fine. Claimant alleges that the warrant had previously been cancelled but that information of that cancellation was not communicated by the City of Albany and the Albany Police Department. The Claim was verified by Claimant and, below the verification appears the following:
Sworn to before me this
30 day of July 2005
[signature of Paul DeLorenzo]
Notary Public
Attached to the Claim is an Affidavit of Service indicating that the pleading had been personally served on the Attorney General on August 2, 2005. The Court’s file also contains a copy of a letter from Janet A. Barringer, Senior Clerk in the Albany Bureau of the Office of the Attorney General. This letter, dated August 4, 2005, states that the Claim was treated as a nullity as it was not properly notarized.
In response to the Order to Show Cause, Defendant has submitted the affidavit of Ms. Barringer, in which she acknowledges that the Claim in this action was personally served on the Attorney General on August 2, 2005 at 3:00 in the afternoon. She explains that it was received by the Litigation Bureau in the last mail run of the day and therefore was not processed until the following day. With respect to the rejection, she states:
The claim was rejected because it was not properly notarized. I determined this by looking at the verification page and noting that there is no notary stamp or other indication that the person signing the notary public line is a commissioned notary public or any expiration date for the commission. On this basis, I rejected the claim by returning it with due diligence to the claimant’s attorney . . . .
(Barringer Affidavit, ¶4[c].) In addition, defense counsel asserts that the claim should be dismissed because “it is apparent that the proper defendant is the City of Albany and/or the Albany Police Department,” neither of which is a proper defendant in the Court of Claims (Arnold Affirmation, ¶ 5).
Claimant’s counsel challenges both the State’s basis for rejecting the Claim and Defendant’s attempt to raise the issue of underlying merit in response to a motion commenced by the Court and directed solely to the question of whether the Claim was properly served. The Court agrees that the issue of the Claim’s merit is not before it on this motion. The proper way for the issue to be raised would be on a motion or cross-motion to dismiss commenced by Defendant.
With respect to the correctness of Defendant’s rejection of the Claim, and the effect on this litigation if the reason for rejection was not a valid one, this Court has previously held that Defendant will be deemed to have waived any defect in verification of the Claim unless it can be established that 1) the pleading was rejected with “due diligence” (CPLR 3022), 2) a valid basis existed for the rejection of the pleading, and 3) Defendant sufficiently articulated the deficiency in the notice of rejection (Givens v State of New York, UID # 2005-028-557, Claim No. 109842, Motion No. M-69558 [Ct Cl August 2, 2005], Sise, P.J.).
Due diligence: The phrase "due diligence" has remained undefined in this context (Lepkowski v State of New York, 1 NY3d 201, 210 [2003]), although most courts have held, however, that the rejection must be tendered within 24 hours (see e.g. Matter of Maynard v Wait, 246 AD2d 853, 854 [3d Dept 1998]; Air New York, Inc. v Alphonse Hotel Corp., 86 AD2d 932 [3d Dept 1982]; Matter of Ladore v The Mayor and Board of Trustees of the Village of Port Chester, 70 AD2d 603, [2d Dept 1979]). The decision in Theodoridis v American Transit Ins. Co. (210 AD2d 397, 397 [2d Dept 1994]) is often cited for the proposition that what constitutes “due diligence” may depend on an assessment of the underlying fact, but despite referencing the “particular circumstances of this case,” the Second Department applied the 24-hour rule without any further discussion. In the instant case, the Claim was received by the Office of the Attorney General on August 2, 2005 and transferred to the Litigation Bureau that same day. August 2, 2005 was a Tuesday, and August 3 was not a holiday. Nevertheless, the notification was not sent out until August 4, more than 24 hours after receipt of the pleading. The Court is unable to perceive any reason why the ordinary standard for “due diligence” should not be applied in this situation and, consequently, holds that by delaying more than 24 hours to reject and return the allegedly defective pleading, Defendant waived any objection it may have had to the form of the verification (or, more accurately, to the notarization of the verification) annexed to this Claim.
The limited purpose of the Order to Show Cause was to determine whether the Claim had been served on the Defendant, and that issue has been resolved: because Defendant’s rejection of the Claim was not made with “due diligence,” the Claim was properly and timely served, and this action will not be dismissed for lack of service. It is up to the parties to determine how they wish to proceed from this point (e.g., Claimant may wish to move for a default judgment; Defendant may seek to compel acceptance of the answer; Defendant may decide to move to dismiss the claim on jurisdictional grounds).
Accordingly, the Court vacates the Order to Show Cause filed on August 10, 2006.

January 18, 2007
Albany, New York

Judge of the Court of Claims