The Court has reviewed the following documents in connection with
Defendant’s motion to dismiss, and Claimant’s motion to correct a
1. Claim, verified October 7, 2004, filed October 25, 2004, with
2. Claim, verified October 14, 2004, filed October 25, 2004, with
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
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
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
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
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).
“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 ). 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  [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.
Significantly, neither Ali
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.
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
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
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
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 ;
Dreger v New York State Thruway Auth., 81 NY2d 721,724 ; Alston
v State of New York, 97 NY2d 159, 162-163 ). 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
Defendant’s motion is granted, and the claim is dismissed.
Claimant’s motion for relief under CPLR 2001 is denied.