New York State Court of Claims

New York State Court of Claims

TARBELL v. STATE OF NEW YORK, #2007-039-019, Claim No. 113008, Motion No. M-72917


Defendant’s motion to amend claim to include missing verification denied and claim dismissed. Pursuant to Court of Claims Act § 11 (b), the unverified claim is jurisdictionally defective and the claim may not be amended to cure a jurisdictional defect.

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:
Roy Tarbell, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael T. KrenrichAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 3, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Roy Tarbell, (hereinafter claimant), was an inmate at Clinton Correctional Facility at the time of the occurrences alleged herein. On November 13, 2006 he filed a claim with the Clerk of the Court wherein he alleges, among other things, that he was wrongfully confined following retaliatory actions by the State (hereinafter defendant). Issue was joined, and defendant asserted in its verified answer, in relevant part, that the claim is defective because it is unverified contrary to the requirements of Court of Claims Act §§ 10 (3) and 11. Claimant now moves the Court for an order permitting him to amend the claim to include the missing verification. Defendant opposes the motion on the ground that the defect is jurisdictional and cannot be cured by amendment.

Court of Claims Act § 11 (b) provides, in relevant part, that “[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court.” As the Court of Appeals recently stated in Kolnacki v State of New York (8 NY3d 277 [2007]), “all of the requirements in section 11 (b) are ‘substantive conditions upon the State’s waiver of sovereign immunity’ ” (id. at 280, quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and “[t]he failure to satisfy any of the conditions is a jurisdictional defect” (id. at 281). Moreover, “[a]ny objection or defense based upon failure to comply with . . . the verification requirements as set forth in [section 11] and [CPLR 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure” (Court of Claims Act § 11 [c]).

Here, defendant raised claimant’s alleged failure to comply with the verification requirements of Court of Claims Act § 11 with sufficient particularity in its answer, thereby preserving the argument for the Court’s consideration. More specifically, included in defendant’s answer, as its fifth defense, is the assertion that “the claim is defective as it is unverified as required by Section 11 of the Court of Claims Act.” In support of his motion to amend the claim, claimant states that he served upon defendant a verified notice of intention to file a claim (hereinafter notice of intention) and admits that he “inadvertently omitted a verification” of the claim.[1]

A review of the Court’s file reveals that several papers were filed upon commencement of the claim. Those documents include, in the order received, the claim, an application for reduced filing fee, the notice of intention, a verification, an affidavit of service and various exhibits. Notably, the verification references the claim. However, based upon claimant’s admission that he omitted a verification of the claim, that he served a verified notice of intention, and that the verification filed with the Clerk of the Court immediately follows the notice of intention, the Court finds that claimant intended that the verification filed with the Clerk was to accompany the notice of intention, and that the claim remains unverified.

With respect to the merit of the motion, the Court is bound by the principle that “nothing less than strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary” (id. at 281), and it is therefore constrained to find that the claim is jurisdictionally defective for want of a verification. Moreover, “a claim may not be amended to cure a jurisdictional defect” (Banyan v State of New York, Claim No. 110271, M-70950/CM-71245, Midey, J. [September 25, 2006]). Finally, the Court finds that the claim must be dismissed as it no longer possesses jurisdiction of the claim (see Roberts v State of New York, 4 Misc 3d 768, 773 [2004]).

Accordingly, it is hereby ordered that M-72917 is denied and the claim is dismissed.

May 3, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered
  1. Notice of Motion to Amend Complaint filed February 7, 2007;
  2. Proposed Verification sworn to on January 30, 2007; and
  3. Affirmation in Opposition dated on March 1, 2007.

[1]. Claimant’s offer of proof in support of the motion is not in admissible form as claimant’s averments are contained within an unsworn notice of motion. However, defendant did not object to claimant’s “technical, non-jurisdictional defect,” therefore the Court opts to “simply ignore[] the ‘defect’” (Matter of Goffredo v City of New York, 33 AD3d 346, 347 [2006]).