New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2007-038-509, Claim No. 107568, Motion No. M-72893


Defendant's motion to dismiss on jurisdictional grounds denied because defendant did not object to lack of verification in accordance with CPLR 3022. Defendant's motion to dismiss part of the claim on res judicata grounds granted, as claims of harassment and medical malpractice were litigated and decided in favor of defendant in federal District Court

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Frederick H. McGown, III, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 9, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate in a State correctional facility, filed this claim on April 4, 2003 seeking compensation for injuries allegedly arising from a slip and fall on ice at Franklin Correctional Facility on or about December 4, 2002. The claim includes allegations of negligent maintenance, verbal harassment, and medical malpractice. Defendant moves to dismiss the claim in its entirety on jurisdictional grounds, and, in the alternative, seeks dismissal of the allegations of harassment and medical malpractice on the ground that those claims have been litigated and decided against claimant in a parallel action in federal district court. Claimant has not submitted papers in opposition to the motion.

While defendant seeks to have the claim dismissed because it is not verified, it did not give notice with due diligence to claimant that it was treating the claim as a nullity, in accordance with CPLR 3022. That provision of the CPLR is applicable in the Court of Claims (see Lepkowski v State of New York, 1 NY3d 201, 210 [2003]), and defendant’s failure to comply with its notice requirement operates as a waiver of a jurisdictional defense based upon the lack of verification (see Scott v State of New York, 11 Misc 3d 1079[A] [Ct Cl 2006]; Scott v State of New York, UID #2005-030-566, Claim No. 111371, Motion No. M-70866, Scuccimarra, J., 12/23/05; compare Ortiz v State of New York, UID #2006-015-105, Claim No. 111279, Motion No. M-71527, Collins, J., 7/29/06 [defendant complied with CPLR 3022, thereby preserving the jurisdictional defense]). Here, as there is no contention by defendant nor any indication in defendant’s motion papers that defendant rejected the unverified claim in accordance with CPLR 3022, the claim therefore will not be dismissed on jurisdictional grounds due to the lack of verification.

Defendant alternatively moves for dismissal of the claim’s assertions of harassment and medical malpractice on res judicata grounds. The doctrine of res judicata generally applies to prohibit relitigation of a claim that has already been decided (see Siegel, NY Prac § 442 [4th ed.]), and upon which there has been a judgment on the merits (see id. § 444). In an action commenced by claimant in the United States District Court, Northern District of New York (9:03-CV-1124), claimant alleged that following his slip and fall on December 4, 2002, “he was harassed and threatened with disciplinary action by [a corrections officer]. Plaintiff also claims that defendants Nurse Smith, Nurse Myers and Dr. Ibaretta failed to properly diagnose and treat plaintiff’s injuries” (McGown Affirmation, Exhibit K, at 3). These claims were decided on the merits against claimant upon the defendants’ motion for summary judgment (see McGown Affirmation, Exhibits J, K, L), and judgment in favor of the defendants was entered on January 12, 2006 (see McGown Affirmation, Exhibit M). The claim filed in this Court, while lacking specific allegations supporting the claims of harassment and medical malpractice, appears to state the same claims that have been litigated in the federal court. As noted above, claimant does not oppose defendant’s motion seeking to dismiss those parts of the claim. Thus, defendant’s motion to dismiss the claim insofar as it asserts claims of harassment and medical malpractice will be granted, and the trial of this claim shall proceed only upon the claim of negligent maintenance with respect to claimant’s alleged slip and fall on ice on December 4, 2002.

Accordingly, defendant’s motion to dismiss the claim is GRANTED IN PART, and those parts of the claim alleging harassment and medical malpractice are hereby dismissed. Defendant’s motion is denied in all other respects.

March 9, 2007
Albany, New York

Judge of the Court of Claims

Papers considered:

(1) Notice of Motion, dated Janaury 30, 2007;

(2) Affirmation of Frederick H. McGown, III, AAG, dated January 30, 2007, with exhibits A-M;

(3) Affidavit of Service of Carol A. McKay, sworn to January 30, 2007;

(4) Claim, filed April 4, 2003.