Correspondence from Patricia M. Bordonaro, Esq., Assistant Attorney General,
dated September 12, 2008 3
In their claim, claimants seek damages for personal injuries allegedly suffered
by claimant Patricia A. McAvaney, when she fell on a sidewalk at the
intersection of North and Arterial Streets in the City of Auburn on July 10,
2006. The claim is based upon allegations of negligence against the State in
the installation, inspection and/or maintenance of this sidewalk.
Pursuant to Court of Claims Act § 10(3), a claim alleging negligence
against the State must be served and filed within 90 days from the date of
accrual, unless a Notice of Intention to File a Claim is served upon the
Attorney General within such 90-day period. If a proper Notice of Intention is
timely served within such period, the claim must then be served and filed within
two years from the date of accrual.
In this matter, the date of the accident forming the basis of this claim is
July 10, 2006, which must therefore be considered the date of accrual.
According to the affidavit set forth by claimants’ attorney (see Item 2),
a Notice of Intention to File a Claim and a Notice of
were both personally served upon the
Attorney General on August 23, 2006. Although the Notice of Intention to File a
Claim was therefore timely served, claimants concede that this Notice of
Intention served upon the Attorney General was not verified as required by Court
of Claims Act § 11(b).
As indicated herein, claimants then served and filed their claim (Claim No.
115499), properly verified, on July 9, 2008, within two years from the date of
accrual of their cause of action.
In its Answer to this claim, however, defendant, in its “Sixth
Affirmative Defense”, alleged that the Notice of Intention was not
properly verified, thereby making the claim untimely. In other words, defendant
contends that since the Notice of Intention was not verified, it should be
treated as a nullity, and claimants should not be provided the extension of time
to serve and file their claim provided by § 10(3).
In 2003, the Court of Appeals, in Lepkowski v State of New York (1 NY3d
201), stated that “the State must follow the steps in CPLR 3022 in order
to preserve any objection that a claim or notice of intention does not comply
with the verification requirement” of § 11(b) (at 203). Furthermore,
the Court also stated that “[a] defendant who does not notify the adverse
party’s attorney with due diligence waives any objection to an absent or
defective verification” (at 210).
Subsequently, the Legislature addressed the Lepkowski decision in two
separate amendments to § 11 of the Court of Claims Act (ch 460, Laws of
2005; ch 223, Laws of 2007). These amendments, and the verification
requirements addressed in the Lepkowski decision, have recently been
considered by my learned colleague, Hon. S. Michael Nadel, in Rister v City
University of New York, 20 Misc 3d 195. After his in-depth analysis, Judge
Nadel concluded that a “defendant is required to both reject the defective
claim and to assert its objection/defense as provided by the law” (at
200). The same conclusion, as discussed by Judge Nadel, applies to a
defectively verified or unverified notice of intention.
In this particular matter, although defendant did raise the defense that the
Notice of Intention was not “properly verified”, there is no
evidence or any indication that the Notice of Intention to File a Claim had been
properly and timely rejected by the defendant. In fact, there is no indication
that the defendant took any steps whatsoever to reject the Notice of Intention.
Since defendant did not notify claimants’ attorney with due diligence that
the Notice of Intention had been rejected due to a lack of verification, this
Court finds that any objection to the lack of verification has been waived,
pursuant to Lepkowksi and the subsequent amendments to Court of Claims
Act § 11.
Thus, the Notice of Intention which was personally served upon the Attorney
General on August 23, 2006 did permit claimants to serve and file their claim
within two years from the date of accrual, as permitted by Court of Claims Act
§ 10(3). Since their claim was served upon the Attorney General and filed
with the Clerk of the Court of Claims within two years from the date of accrual,
it was timely served and filed.
Accordingly, based on this analysis it is not necessary for this Court to
consider the specific relief sought by claimants in this motion. Furthermore,
since defendant did not reject the Notice of Intention to File a Claim and has
therefore waived any objection, the Sixth Affirmative Defense asserted in its
Answer must therefore be stricken.
Accordingly, it is
ORDERED, that Motion No. M-75221 is hereby DENIED, as moot; and it is
ORDERED, that the Sixth Affirmative Defense asserted in the Answer to Claim No.
115499 is hereby stricken, sua sponte.