New York State Court of Claims

New York State Court of Claims
K.K. v. STATE OF NEW YORK, # 2007-039-025, Claim No. 112614, Motion No. M-72266, Cross-Motion No. CM-72331

Synopsis

Defendant's motion to dismiss the claim is denied. Defendant failed to give notice to claimant with due diligence, in conformity with CPLR 3022, when defendant received the allegedly defective notice of intention to file a claim on Friday at 12:29 PM and, by letter dated the following Monday, informed claimant that it was treating the notice as a nullity pursuant to CPLR 3022. Thus, the Court concludes that defendant's failure to comply with CPLR 3022 operates as a waiver of the jurisdictional defense based upon a lack of verification.

Case information

UID: 2007-039-025
Claimant(s): K.K.
Claimant short name: K.K.
Footnote (claimant name) : This claim includes allegations that claimant was the victim of a sexual offense. Thus, the claimant is entitled to the privacy protections of Civil Rights Law Section 50-b. As a result, claimant shall not be referred to by name, but shall be identified as "KK".
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : The caption has been amended to reflect the State of New York as the only proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112614
Motion number(s): M-72266
Cross-motion number(s): CM-72331
Judge: JAMES H. FERREIRA
Claimant's attorney: Joseph E. Ruyack III, Esq.
Defendant's attorney: Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michele M. Walls
Assistant Attorney General
Third-party defendant's attorney:
Signature date: July 17, 2007
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

On July 15, 2005, K.K. (hereinafter "claimant") personally served an unverified notice of intention to file a claim (hereinafter "notice") upon, among others, the Attorney General of the State of New York wherein she alleges, in relevant part, that her "claim arose on or about April 19, 2005." By letter dated July 18, 2005, Deputy Assistant Attorney General Judith C. McCarthy notified claimant that, pursuant to CPLR 3022, defendant elected to treat the notice as a nullity because it was not verified. On July 19, 2005, a verified notice was personally served upon the Attorney General, followed by personal service of the claim on August 8, 2006.

Defendant now moves the Court, in lieu of an answer, for an order dismissing the claim on the ground that the Court lacks subject matter jurisdiction pursuant to Court of Claims Act 10 (3) and 11 for failure to serve a notice of intention or claim upon the Attorney General within 90 days after accrual of the cause of action. Claimant opposes the motion and argues, among other things, that defendant waived a jurisdictional defense based upon the lack of verification of the notice when it failed to exercise due diligence in accordance with CPLR 3022. Claimant also cross moves the Court for an order compelling defendant to accept her notice and claim.

Court of Claims Act 10 provides, in relevant part, that a claim must be "filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor." The failure to timely serve the notice of intention upon the Attorney General is a jurisdictional defect (see Carter v State of New York, 284 AD2d 810 [2001]; Collado v State of New York, 207 AD2d 936 [1994]). Court of Claims Act 11(b) further 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 280-281, 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, "[w]here a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he [or she] gives notice with due diligence to the attorney of the adverse party that he [or she] elects so to do" (CPLR 3022). " '[D]ue diligence' as used in [CPLR 3022] has been interpreted to mean notice given immediately . . . or at least within 24 hours of the receipt of a defective pleading" (Air New York, Inc. v Alphonse Hotel Corp., 86 AD2d 932 [1982], quoting Matter of O'Neil v Kasler, 53 AD2d 310 [1976]).

In Air New York, Inc. v Alphonse Hotel Corp., (supra at 932), defendants served a defective answer which was received by plaintiff on Friday, October 17, 1980. By letter dated Monday, October 20, 1980, "plaintiff's counsel rejected the answer upon the ground that it was not properly verified" (id.). The Court concluded that plaintiff's delay of three days before providing defendant with notice of its rejection of the allegedly defective pleading did not constitute due diligence pursuant to CPLR 3022, and that the trial court "correctly concluded that plaintiff had waived its objection to the allegedly defective verification" (id.).

Here, as in Air NewYork, Inc., (supra), defendant received the allegedly defective notice on Friday at 12:29 PM and, by letter dated the following Monday, defendant informed claimant that it was treating the notice as a nullity pursuant to CPLR 3022. Certainly, in this electronic age, defendant could have informed claimant of its rejection in an expedited manner by facsimile, e-mail or otherwise. When the Court considers defendant's ability to do so, together with the immediacy, or 24-hour time frame, that courts have equated with the term "due diligence," the Court is compelled to find that defendant's delay of three days before informing claimant that it was rejecting the allegedly defective notice does not constitute due diligence pursuant to CPLR 3022.

Nor is defendant's reliance upon the intervening weekend as an excuse for the delay persuasive. Extensions of time to account for weekends and holidays do not apply "to the circumstances presented here, but rather to instances where a specific computable time period for the performance of an act is established by statute" (Air New York, Inc. v Alphonse Hotel Corp., supra at 932; see also McKinney's Cons Laws of NY, Book 21, General Construction Law 25-a). Thus, defendant's failure to comply with CPLR 3022 operates as a waiver of the jurisdictional defense based upon a lack of verification (see Air New York, Inc. v Alphonse Hotel Corp., supra; see also Theodoridis v American Transit Insurance Co., 210 AD2d 397 [1994]).

Accordingly, it is hereby ordered that M-72266 is denied and CM-72331 is granted.

July 17, 2007

Albany, New York

JAMES H. FERREIRA

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion dated September 12, 2006;

2. Affirmation in Support of Motion to Dismiss dated on September 12, 2006, with exhibits;

3. Notice of Cross Motion dated September 22, 2006;

4. Attorney's Opposition Affirmation and Supporting Cross Motion dated on September 22, 2006 with exhibits;

5. Reply Affirmation dated on October 2, 2006 with exhibits; and

6. Reply Affirmation Supporting Cross Motion dated on October 16, 2006.