New York State Court of Claims

New York State Court of Claims

HARDY v. STATE OF NEW YORK, #2007-034-554, Claim No. 110013, Motion No. M-73636


Claimant’s failure to file and serve copies of the same claim is a jurisdictional effect that requires dismissal. Deviations in the claim filed from the claim served were significant enough to characterize them as two different documents.

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:
Defendant’s attorney:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The Court has reviewed the following documents in connection with Defendant’s motion to dismiss, and Claimant’s motion to correct a mistake:

1. Claim, verified October 7, 2004, filed October 25, 2004, with attachments;

2. Claim, verified October 14, 2004, filed October 25, 2004, with attachments;

3. Verified Answer, verified November 12, 2004, filed November 16, 2004;

4. Notice of Motion, dated June 27, 2007, filed June 29, 2007;

5. Affirmation of Thomas G. Ramsay, affirmed June 27, 2007, with attached exhibits;

6. “Notice of Motion to Correct Mistake, Omission, Defect or Irregularity, CPLR 2001,” dated July 6, 2007, unfiled;

7. Affidavit in Support of Motion of Victor Hardy, sworn to July 6, 2007, with attached “Statement of Facts,”“Tier of Facts,” “Findings of Fact,” and exhibits;

8. Affirmation in Opposition/Reply of Thomas G. Ramsay, dated July 13, 2007, filed July 16, 2007;

9. Response to Defendant’s Opposition/Reply of Victor Hardy, dated July 17, 2007, unsworn, unfiled.

Claimant, an inmate, has sought to recover damages for the alleged failure of medical personnel at Attica Correctional Facility to inform and treat him for Hepatitis B and Hepatitis C following a blood test that reportedly revealed those conditions on October 15, 2002. Mr. Hardy contends that the failure to disclose and treat his hepatitis continued after he was transferred to Wende Correctional Facility on or about February 18, 2003, notwithstanding a further blood test and treatment at that facility for a fractured wrist and a lower back condition. According to Claimant he first learned that he had tested positive for hepatitis on March 12, 2004.

Mr. Hardy served a notice of intention to file a claim upon the Attorney General on June 1, 2004 (see affirmation of Thomas G. Ramsay, affirmed June 27, 2007, [“Ramsay affirmation”], Exhibit A). He subsequently served a claim upon the Attorney General on October 14, 2004 (see Ramsay affirmation, Exhibit B). The claim as served bore a verification date of October 7, 2004. Mr. Hardy then filed two claims with the Court of Claims on October 25, 2004, one verified on October 7, 2004, and the other verified October 14, 2004. In response, the Attorney General served and filed a timely verified answer on behalf of the State, which included as its fourth affirmative defense an assertion that Mr. Hardy had failed to serve and file his claim within the applicable time period set forth in Court of Claims Act § 10 (3).[1]

On June 8, 2007, the matter proceeded to trial as part of a prison trial term. In the course of the trial the Court raised the question whether certain medical records appended to the claim would need to be separately marked as exhibits and offered into evidence to be considered in rendering its determination. At that point it became apparent that the attachments to the claim as served varied from those appended to the filed claim relied upon by the Court in addressing the issue. The State then made an oral motion to dismiss, based upon Claimant’s alleged noncompliance with the filing and service requirements of Court of Claims Act § 10 (3). The Court declined to consider the State’s oral motion, and instead declared a mistrial, with the further direction that Defendant formalize its dismissal motion in writing. To facilitate a full review the Court subsequently tendered copies of the two claims filed in this matter to the parties.[2]

Defendant has now formally moved for dismissal of the claim, urging that Mr. Hardy did not serve and file his claim as required under Court of Claims Act §§ 10 (3) and 11 (a), with jurisdictional consequence. In response, Claimant has moved pursuant to CPLR 2001 to correct what he deems a simple mistake in the appending of certain exhibits to the claim. On consideration the Court is compelled to grant Defendant’s motion and dismiss the claim. Claimant’s motion will be denied.

Pursuant to Court of Claims Act § 11(a) (i) Mr. Hardy was obligated to file his claim with the Clerk of the Court of Claims, and to serve a “copy” upon the Attorney General, all within the time limitations otherwise provided – in this instance, concededly under Court of Claims Act § 10 (3).[3] The word “copy” is not defined within the Court of Claims Act, and for that reason should be afforded its usual and commonly understood meaning (McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 94, 232; see Matter of Terino v Levitt, 44 AD2d 167, 169 [1974]). Reference to a dictionary is appropriate in the absence of statutory definition or documented history (see Matter of Cortland-Clinton v New York State Dept. of Health, 59 AD2d 228, 231 [1977] [addressing interpretation of an administrative rule]). Here, the definition of “copy,” as relevant, and set forth in Webster’s Third New International Dictionary (1981 ed [unabr]) is “an imitation, transcript, or reproduction of an original work,” or “one of a series of esp. mechanical reproductions of the same original text.” Thus viewed, it is clear that section 11 (a) (i) anticipates that the pleading served be a reproduction of the same one that is filed.

Several decisions of the Court of Claims have dismissed a claim where a material discrepancy existed between the pleading as filed and that which was served (see Ali v State of New York, Ct Cl, February 7, 2006, Sise, P.J., Claim No. 110988, Motion Nos. M-70517, M-70665, CM-70622 [UID No. 2006-028-516]; Gordon v State of New York, Ct Cl, December 31, 2003, Hard, J., Claim No. 105141, Motions Nos. M-67068, CM-67122 [UID No. 2003-032-133]).[4] Significantly, neither Ali nor Gordon held that the served copy must exactly mirror the original claim, and indeed Gordon recognized that “[a]s a practical matter some variation between the claim and the copy that is served on defendant is and should be tolerated, particularly when the documents are handwritten separately.” The Court further notes that following the Legislature’s enactment of a commencement-by-filing procedure in Supreme and County Court practice in 1992 (L 1992, ch 216), a similar issue arose with respect to the consequence of serving pleadings that varied from the papers filed with those courts. In Matter of Gershel v Porr, 89 NY2d 327 (1996), the Court of Appeals affirmed the dismissal of a special proceeding in Supreme Court wherein a petitioner served a notice of petition on a respondent after initially filing a different set of initiatory papers, holding that basic to the revised statutory procedure “is the rule that the papers served must conform in all important respects to the papers filed” (id. at 332). Mindful that commencement procedures in the Court of Claims must follow Court of Claims Act § 11 (a), rather than CPLR 304, 306-a and 306-b, the determination of the Court of Appeals in addressing a similar requirement is instructive.

Here, the claim served upon the Attorney General cannot be deemed a copy of either of the two claims filed with the Clerk of the Court of Claims, even accepting that minor deviations should be overlooked. The Court is mindful that each pleading starts with the same three-page typed document, consisting of seven paragraphs,[5] together with two additional pages that reflect a verification and affidavit of service. The variations in the order of attachment of those two pages and the inconsistent addition of a short handwritten notation are of no substantive consequence, and will be disregarded. So also, the references to an October 14, 2004 verification and service reflected in one of the filed claims is not, by itself, dispositive, since the second filed claim mirrors the October 7, 2004 dates of filing and service set forth in the pleading served upon the Attorney General. Variations resulting from the attachment of Claimant’s motion for poor person status solely to the filed claim verified on October 7, 2004, will similarly be disregarded, as obviously reflecting a separate motion pursuant to CPLR 1101. Similarly, the Court will disregard Claimant’s attachment to the October 7, 2004 filed claim of his letter to the Clerk of the Court of Claims regarding proof of service upon the Attorney General, since that letter addresses Mr. Hardy’s obligation to file proof of service under 22 NYCRR 206.5 (a), rather than any pleading supplement.

Other inconsistencies, however, cannot be disregarded. Each of the three pleadings also reflects the attachment of papers in support of Mr. Hardy’s claims of liability or damage, although without sufficient uniformity to be able to deem the variations to be mere oversights in the collating process. The October 7, 2004 claim as served includes eight pages of laboratory test records, as well as a pathology report dated June 2, 2004, two pages addressed to grievance WDE-21000-04, and one page addressed to grievance WDE-21011-04. In contrast, the October 7, 2004 claim as filed lacks any of those laboratory, pathology or grievance records, and instead simply reflects a four-page article regarding Hepatitis C from the May 2004 Prison Legal News newsletter. The October 14, 2004, claim as filed includes six of the eight pages of laboratory test records appended to the claim as served, together with the same one-page pathology report. However, that filed pleading also reflects attachments addressed to grievances WDE-21000-04[6] and WDE-21011-04 which vary from those appended to the claim as served. Moreover, two memoranda from S. Post, and another memorandum from B. Aiello-Howe, all on behalf of Wende Correctional Facility, also are appended to the October 14, 2004 filed claim, but to no other pleading. Since CPLR 3014 provides that “[a] copy of any writing which is attached to a pleading is a part thereof for all purposes,” those deviations are significant to a point where the served pleading cannot be deemed an imitation or reproduction of either filed claim. For that reason Claimant cannot be found to have completed both the filing of his claim and the service of a “copy” as required under Court of Claims Act § 11 (a) (i).

The timing and service requirements of article II of the Court of Claims Act are jurisdictional in nature, and therefore must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Dreger v New York State Thruway Auth., 81 NY2d 721,724 [1992]; Alston v State of New York, 97 NY2d 159, 162-163 [2001]). Claimant’s failure to serve a pleading sufficiently similar to the pleading filed to be fairly deemed a “copy” within the time constraints of Court of Claims Act § 10 (3) constitutes a jurisdictional defect that compels the dismissal of the claim.

Defendant’s motion is granted, and the claim is dismissed. Claimant’s motion for relief under CPLR 2001 is denied.

January 4, 2008
Buffalo, New York

Judge of the Court of Claims

[1]. Pursuant to Court of Claims Act § 10 (3) the timely service of a notice of intention would work to extend the time limitation for commencement to two years from accrual.
[2]. 22 NYCRR 206.5 (a) directs a claimant to file an original and two copies of the claim with the office of the Clerk of the Court of Claims. As noted, Mr. Hardy filed two claims on October 25, 2004 – one verified October 7, 2004, and one verified October 14, 2004.
[3]. Notwithstanding allegations of intentional misconduct within the claim the State has not urged that the time limitations for intentional torts set forth within Court of Claims Act § 10 (3-b) would apply to any asserted grounds for relief.

[4]. Unpublished decision and orders are available on the Court of Claims website at
[5]. To the extent Defendant urged at the time of trial that a dissimilarity also existed in allegations within the typewritten pages themselves, such does not appear to be the case.
[6]. Two copies of the CORC response dated June 2, 2004, addressing grievance WDE-21000-04, were attached to the pleading, once again by itself a minor, nondispositive matter.