The following papers were read on defendant’s motion to dismiss.
1. Notice of Motion of Lea La Ferlita, AAG, with annexed Exhibits.
2. Memorandum of Law in Opposition by Michael G. O’Neill, Esq.
3. Affirmation in Reply of Lea La Ferlita, AAG.
Defendant, the State of New York (State), moves for an order pursuant to
Civil Practice Law and Rules (CPLR) Rule 3211 and Court of Claims Act
§§ 8, 8-b, 10 and 11, to dismiss the
instant claim, commenced on January 16, 2007, for unjust conviction and
imprisonment. Claimant Ricky Taylor opposes by way of memorandum of law, and
the State replies.
Previously, claimant filed a claim on February 26, 2002, for unjust conviction
and imprisonment (the Original Claim). The Original Claim was served on the
Attorney General’s office on March 20, 2002. The Original Claim was not
verified by claimant. The claim alleged, inter alia, that: claimant was
convicted on December 4, 1998; claimant was sentenced, and served that sentence
by six months in correctional facilities and twelve months of probation; by
decision and order dated January 22, 2002, the Appellate Term of the Supreme
Court, First Department (the Reversal Decision), reversed the conviction and
dismissed the information for legal insufficiency.
The State’s answer, dated April 24, 2002, included as an affirmative
defense claimant’s failure to comply with the verification requirements
set forth in § 8-b(4).
Thereafter, the State moved for summary judgment dismissing the Original Claim
for lack of jurisdiction based on claimant’s failure to personally verify
the claim. Claimant cross-moved for summary judgment, opposed the State’s
motion and attached a personal verification requesting that it be accepted nunc
pro tunc if the Court determined a personal verification was required.
By Decision and Order filed April 14, 2005, the Honorable Richard E. Sise,
Presiding Judge, granted the State’s motion, held that the defective
verification may not be corrected nunc pro tunc, denied the cross-motion, and
dismissed the Original Claim in its entirety. On October 17, 2006, the
Appellate Division, First Department, affirmed the Court’s decision,
holding that “[c]laimant’s failure to verify his claim in compliance
with Court Claims Act § 8-b(4) mandated dismissal (Long v State of New
York, 7 NY3d 269 ).”
By Verified Claim filed and served January 16, 2007, claimant commenced the
instant claim (the 2007 Claim), verified by claimant, for unjust conviction and
imprisonment. The 2007 Claim alleges, inter alia, his 1998 conviction,
his sentencing and serving of that sentence, and the January 22, 2002, Reversal
Decision. Claimant also alleges within the 2007 Claim that the claim is not time
barred and is being re-filed and re-served pursuant to CPLR § 205 (a), as
it originally was timely served and filed, and was terminated on October 17,
2006, by a manner other than
voluntary discontinuance, a failure to obtain personal jurisdiction over the
due to neglect to prosecute the action, or a final judgment on the merits.
By Verified Answer dated February 22, 2007, the State denied the claim and
asserted nine affirmative defenses. The seventh, eighth and ninth affirmative
defenses alleged that the Court lacks jurisdiction because: CPLR § 205 (a)
does not apply in the Court of Claims and the claim is, therefore, untimely
served and filed; the Original Claim failed to comply with the requirements of
§ 8-b (4) of the Court of Claims Act as it was not personally verified;
and, claimant failed to serve and file the claim within the time period set
forth in Court of Claims Act § 8-b (7).
This motion followed.
The State argues that the 2007 Claim does not qualify for recommencement under
CPLR § 205 (a) because, as the Original Claim was not verified by claimant,
it did not comply with the statutory prerequisites, and, as a result of this
fatal defect, the Original Claim was not timely commenced.
Claimant argues that CPLR § 205 is applicable. He argues that whether the
Original Claim was verified is unrelated to the statutory requirement of notice,
which is the lynchpin for determining whether an action was timely commenced.
Here, the Original Claim was timely served and filed within the statute of
limitations, and, there being no bar otherwise to his claim, claimant may take
advantage of CPLR § 205 (a).
The State replies that claimant’s argument misses the mark. As the
Original Claim failed to comply with the jurisdictional prerequisite of
verification by the claimant and the 2007 Claim was not instituted within the
two year period mandated by § 8-b(7), claimant may not avail
himself of CPLR § 205 (a) and the 2007 Claim must be dismissed.
CPLR § 205 (a) provides, in relevant part:
“CPLR 205 (a) allows recommencement only where the prior action was
‘timely commenced’. ” Dreger v New York State Thruway
Auth., 81 NY2d 721, 723. “Because suits against the State are allowed
only by the State’s waiver of sovereign immunity and in derogation of the
common law, statutory requirements conditioning suit must be strictly construed
(Lurie v State of New York, 73 AD2d 1006, affd 52 NY2d
849).” Id. at 724.
Here, the Original Claim was not verified by claimant, and claimant therefore
failed to meet the requirements of the Court of Claims Act § 8-b (4).
Long, 7 NY3d 269. Accordingly, the Original Claim was not timely
commenced and “relief under CPLR 205 (a) is not available”.
Dreger, 81 NY2d at 724. See also Lichtenstein v State of New York,
93 NY2d 911. To the extent claimant seeks to revisit issues addressed
previously, such request is not properly before this Court.
As the 2007 Claim was filed and served more than two years after
claimant’s unjust conviction and wrongful imprisonment claim accrued on
January 22, 2002, and relief under CPLR § 205 (a) is not available for the
Original Claim, the 2007 Claim must be dismissed in its entirety.
Therefore, defendant’s motion to dismiss is granted, and the claim is