New York State Court of Claims

New York State Court of Claims

FLOWERS v. THE STATE OF NEW YORK, #2007-028-578, Claim No. 111128, Motion No. M-72108


Synopsis

The Claim’s defective verification would entitled Defendant to reject it as a nullity (CPLR 3022), but Defendant’s notice of rejection was also inaccurate and ineffective.


Case Information

UID:
2007-028-578
Claimant(s):
WENDELL FLOWERS
1 1.The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
FLOWERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111128
Motion number(s):
M-72108
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
HARMON, LINDER & ROGOWSKY, ESQS.BY: Mark J. Linder, 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:
October 10, 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 documents;


3. Letter of Mark J. Linder, Esq., with annexed documents; and


4. Affirmation of Ellen Matowik Russell, AAG.


Filed papers: Claim; Decision and Order, Claim No. 111128; Motion No. M-72108; filed March 21, 2007, Sise, PJ.


This action arises from an April 2005 automobile collision between Claimant’s vehicle and one owned by Defendant State of New York. The Claim was filed July 12, 2005, but no Answer was ever filed or served by Defendant. On August 9, 2006, as part of its regular case management procedures and because the absence of an Answer most often means that Defendant was never served, the Court issued an Order to Show Cause directing both parties to provide documentation and/or written statements relating to service of the Claim.

Defendant’s submission in response to the Order to Show Cause in the instant action established the following:
* On July 7, 2005, a copy of the Claim was received by the Attorney General. It was returned to Claimant that same day with a cover letter explaining that Defendant was electing to treat the Claim as a nullity, pursuant to CPLR 3022, because it was unverified.
* On July 11, 2005, a second copy of the Claim was served on Defendant. It was also promptly returned to Claimant, this time with a cover letter explaining that the Claim was being treated as a nullity because “it is improperly verified – Document does not state the Claimants (sic) present address.”

Claimant’s submission confirmed that copies of the Claim were personally served on Defendant on both July 7, 2005 and July 11, 2005 but made no reference to the fact that Defendant had returned both claims.

The copy of the Claim served on Defendant on July 11, 2005 contained an Attorney’s Verification that read as follows:
The reasons I make this affirmation instead of the plaintiff (sic) is because said plaintiff resides outside of the county from where your deponent maintains his office for the practice of law.
In response to these submissions, the Court issued an interlocutory Decision and Order, filed March 21, 2007, holding that Defendant’s rejection of the July 7 Claim was proper. That Claim was totally unverified, and the notice from Defendant accurately gave that as the reason for rejection. With respect to the Claim served on July 11, however, the Court requested further submissions from the parties. Noting that attorneys are authorized to verify a pleading on behalf of his or her client if the party “is not in the county where the attorney has his office” (CPLR 3020[d][3]), the Court requested that the parties address the following questions:
  1. Must an attorney’s verification that is made because the party is not in the same county as the attorney’s office recite the location of the party?
  2. What is the effect if a party rejects a pleading as a nullity for incorrect reasons?
  3. Is the outcome any different in the Court of Claims than it would be in a court where practice is governed exclusively by the CPLR?
Despite the invitation to do so, Claimant made no further submission. Defendant submitted the affirmation of Assistant Attorney General Ellen Matowik Russell.

In that affirmation, defense counsel asserted, among other things, that in CPLR practice, parties who are entitled to a verified pleading but receive one that is unverified or defectively verified have two courses of action open to them, either (1) rejecting the pleading as a nullity or (2) “preserving the issue in an affirmative defense . . . that can be affirmatively moved upon later or by pre-answer motion” (Matowik Russell affirmation, ¶9). This assertion, for which no authority is given, is simply incorrect.

The exclusive remedy available to a litigant in this situation is contained in CPLR 3022, which provides as follows:
A defectively verified pleading shall be treated as an unverified pleading. Where 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 so to do.
(Emphasis supplied.) Defense counsel apparently considers the word “may” in the second sentence to be “permissive language” that in some fashion creates or recognizes that there is an alternative remedy: “preserving the issue in an affirmative defense . . . that can be affirmatively moved upon later or by pre-answer motion” (Matowik Russell affirmation, ¶ 9).

No such alternative remedy is apparent in the language of the statute, however, and the more logical reading is to see the statute as saying a party may reject a pleading for this reason but is not required to do so. Indeed, it has been universally held that a party’s failure to properly and timely reject an insufficiently verified pleading pursuant to CPLR 3022 constitutes a waiver of that defect (Lepkowski v State of New York , 1 NY3d 201, 210 [2003] [“A defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification.”]; Matter of Miller v Board of Assessors, 91 NY2d 82, 86 [1997]; Matter of Giambra v Commissioner of Motor Vehicles of State of N.Y., 46 NY2d 743 [1978]; Breco Environmental Contractors, Inc. v Town of Smithtown, 31 AD3d 357 [2d Dept 2006]; Matter of Kocur v Erie County Water Auth., 292 AD2d 858 [4th Dept 2002]; Rosenshein v Ernstoff, 176 AD2d 686 [1st Dept 1991]; Matter of Lentlie v Egan, 94 AD2d 839, 840 [3d Dept 1983], affd 61 NY2d 874 [1984]; Air New York, Inc. v Alphonse Hotel Corp., 86 AD2d 932 [3d Dept 1982]; Brown v State of New York, 10 Misc 3d 1059(A) [Ct Cl 2005]; Schneider v State of New York, 6 Misc 3d 1006(A) [Ct Cl 2004]; Chan v Adossa, 195 Misc 2d 590 [Sup Ct, App Term 2003]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR Rule 3022, C3022:2). There is simply no support for the argument that an alternative remedy exists in situations where the requirement of verification is governed by the CPLR.[2]

Turning to the questions posed in the Court’s interlocutory order, Lepkowski v State of New York (1 NY3d 201, 210, supra) established that the language of Court of Claims Act § 11(b), which requires Claims and Notices of Intention to be verified “in the same manner as a complaint in an action in the supreme court,” means precisely what it says and therefore “embraces CPLR 3022's remedy for lapses in verification.” Consequently, the effects of Claimant’s verification and Defendant’s rejection at issue in this case are the same as they would be in any other court where practice is governed by the CPLR.

CPLR 3021 requires that when someone other than the party makes the verification, the text of the verification must set forth, among other things, “the reason why it is not made by the party” (Matter of Giambra v Commissioner of Motor Vehicles of State of N.Y., 46 NY2d 743, supra; Hirent Realty Corp. v Mosley, 64 Misc 2d 1011 [Civ Ct, NY County 1970]), and CPLR 3020(d)(3) authorizes an attorney to make the verification when the party “is not in the county where the attorney has his office.”

In the verification accompanying the Claim that was served on July 11, Claimant’s counsel stated that the reason his client was not making the verification was that “plaintiff (sic) resides outside of the county from where your deponent maintains his office for the practice of law.” This statement is legally irrelevant to the question of whether the attorney was authorized to verify the claim, because the statute makes no mention of and attributes no significance to the place of a party’s residence.
[A]ll the statute requires to enable the lawyer to verify is an averment that the party ‘is’ not in the office county. The verifying attorney should make sure that the CPLR 3021 affidavit avers that the reason why the attorney is verifying is that the party “is” not in the office county, just as the statute says, and not “does not reside” there or any other thoughtful notion not required by the statute.
(Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 3020, C:3020:8). Claimant’s counsel failed to heed this prudent advice and failed to provide the information required by the statute: whether the Claimant was in the county of the attorney’s office at the time the Claim was verified.[3] Consequently, the statement contained in the verification did not satisfy the statute. In addition, the statement is shown to be factually incorrect by the Claim to which the verification applied. Both Claimant's home address and the address of the attorney's office are set forth in the Claim, and both are located in the same county. Defendant, therefore, was entitled to reject the July 11 Claim as a nullity.

In order to be effective, such a rejection must be carried out with “due diligence,” and the notice of rejection must set forth the specific way in which the verification is said to be deficient

(CPLR 3011; Lepkowski, 1 NY3d at 210, supra; Miller v Board of Assessors, 91 NY2d at 98, supra; NY Jur, Pleading, §62, Notice of election to treat unverified pleading as a nullity--Sufficiency of notice [2007]). The purpose of these two requirements – prompt action and clear explanation – is to avoid confusion and allow the defect to be corrected "so the court can utilize its resources ‘to service genuine disputes' in a system where there is no room for ‘verification jousting'” (Matter of South Slope Holding Corp. v Board of Assessment Review of Town of Jerusalem, 254 AD2d 684, 686 [4th Dept 1998], quoting Siegel, Practice Commentaries, McKinney's Cons Laws of N.Y., Book 7B, CPLR C3002:1, at 310; see also Westchester Life, Inc. v Westchester Magazine Co., 85 NYS2d 34 [Supreme Court, New York Co. 1948], quoted in SLG Graybar, L.L.C. v John Hannaway Law Offices, 182 Misc 2d 217 [NY City Civil Ct 1999]).

In the instant case, Defendant’s notice stated that the Claim was being returned because the “[d]ocument does not state the Claimants (sic) present address.” For the reasons discussed above, this statement is legally irrelevant, as the location where a party resides has no role in determining whether an attorney may verify a pleading (CPLR 3020, 3121). The statement is also factually, and obviously, inaccurate because Claimant’s present address was provided in the Claim.

The net result of these “two wrongs” is, in effect, to make a “right.” While the misstatement of Claimant’s counsel resulted in a defective verification, Defendant’s own misstatement in its rejection notice made the rejection itself ineffective. “ [W]hen the pleading is returned with a defective notice, the situation is the same as if the pleading had not been returned at all" (Siegel, Practice Commentaries, McKinneys Cons Laws of NY, Book 7B, CPLR 3022, C3022:2). Allowing Defendant’s error to effectively wipe away Claimant’s error does not favor one party over another so much as carry out the well-established principle that “[p]leaders insisting upon strict compliance with the rules of practice must follow the same themselves” (Treen Motors Corp. v Van Pelt, 106 Misc 357, 361 [Sup Ct, Kings County 1919]), discussed in Siegel, Practice Commentary C3022:2, supra).

As a result of this series of mistakes, Claim No. 111128 is viable and Defendant is delinquent in interposing its Answer. Claimant, however, has not moved for a default judgment (CPLR 3215) and questions have been raised about whether “a default predicated on a verification dispute” would be allowed to stand (id.). Consequently, Defendant is directed to file and serve its Answer within 30 days of the date that this Decision and Order is filed. At that point, perhaps prosecution of this action, which has been so unfortunately delayed, can proceed.








October 10, 2007
Albany, New York

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




[2]. In contrast, where another statute requires a particular form of verification and makes no reference to the CPLR or Supreme Court practice, objections to insufficient verification may be treated as an affirmative defense. Court of Claims Act §8-b creates a tort remedy for litigants who were unjustly convicted and imprisoned, and it requires that the Claim in such an action “shall be verified by the claimant.” In Long v State of New York (2 Misc 3d 390 [Ct Cl 2003], affd 19 AD3d 554 [3d Dept 2005]; 7 NY3d 269 [2007]), an unjust conviction action was dismissed because the Claim was verified by an attorney, not the Claimant. There, the objection was raised as an affirmative defense and subsequently made the basis of a motion for summary judgment. In upholding the dismissal, the Court of Appeals contrasted that verification requirement, which is “specific to claims for unjust conviction and imprisonment and makes no reference to the [the CPLR],” with the quite different “general verification requirement that specifically incorporates CPLR procedures” which is found in Court of Claims Act § 11(b) (7 NY3d at 276).
[3]. If, for example, Claimant was working or vacationing somewhere outside New York County when the Claim was ready for verification, the attorney would be fully authorized to supply the verification, even though Claimant's residence was in the same county as the attorney's office. If, however, Claimant was at that residence when the Claim was verified, there would have been no authority for the attorney to execute the verification.