For the reasons set forth below, Defendant’s pre-answer motion to dismiss
the Claim based upon Claimant’s failure to comply with the service
requirements of Court of Claims Act §§ 10(3) and 11 and pursuant to
CPLR 3211(a)(2) and (8), for lack of personal and subject matter jurisdiction,
The Claim, which was filed with the Clerk of the Court on March 12, 2009,
alleges that Claimant was sentenced to a determinate sentence of
three-and-one-half years incarceration, and that, upon release, Defendant
ordered, without right or authority, that Claimant be placed on an additional
five years post-release supervision (PRS). It is further alleged that Claimant
was wrongfully and illegally convicted of four parole or PRS violations.
Claimant asserts that he was released from custody on December 18, 2008.
Pursuant to Court of Claims Act § 10(3-b), the provisions applicable to
personal injury actions caused by the intentional tort of a State employee,
Claimant was required to file and serve his Claim within 90 days from the date
of accrual unless a written Notice of Intention to File a Claim was served upon
the Attorney General within such time period. In that case, the Claim itself
was required to be filed and served upon the Attorney General within one year
after the accrual of the Claim. In either case, Claimant was required to
initiate action within 90 days of the Claim’s accrual.
Section 11(a) of the Court of Claims Act requires that the Attorney General be
served either personally or by certified mail, return receipt requested, within
the applicable limitations period (90 days in this instance).
In his affirmation submitted in support of the State’s motion, Defense
counsel asserts that the Attorney General’s office received a Claim
without a proper verification on March 12, 2009 (see Ex. A attached to
Counsel also asserts that CPLR 3022 states “when a pleading is required
to be verified, the recipient of an unverified or defectively verified pleading
may treat it as a nullity provided that the recipient ‘with due
diligence’ returns the pleading with notification of the reason(s) for
deeming the verification defective (Lepkowski v State of New York, 1 NY3d
201, 210 ; citing Matter of Miller v Board of Assessors, 91
NY2d 82, 86 )” (Krenrich Affirmation in Support, ¶ 7). Defense
counsel asserts Defendant rejected the Claim as improperly verified and returned
it to Claimant the same day on which it was received, March 12, 2009 (Krenrich
Affirmation in Support, ¶ 7; see Ex. B attached to Motion).
Claimant personally served a second Claim upon the Attorney General on March
16, 2009 that was properly verified (Krenrich Affirmation in Support, ¶
10). That Claim also was filed with the Clerk of the Court of Claims and was
assigned Claim No. 116560.
Claimant has not submitted any opposition to the State’s motion.
Court of Claims Act § 11(b) requires that notices of intention and claims
“be verified in the same manner as a complaint in an action in the
[S]upreme [C]ourt.” The Court of Appeals has declared that the language
means precisely what it says and, thus, “embraces CPLR 3022’s remedy
for lapses in verification” (Lepkowski v State of New York, 1 NY3d
201, supra at 210). Thus, the sufficiency of Claimant’s
verification and Defendant’s rejection at issue in this Claim must be
evaluated in the same manner as they would be in any other court where practice
is governed by the CPLR. “A defendant who does not notify the adverse
party’s attorney with due diligence waives any objection to an absent or
defective verification” (Lepkowski v State of New York, 1 NY3d 201,
supra at 210).
In this instance, the unverified Claim was returned to Claimant on the same day
it was received by the Attorney General with explicit notification of the reason
therefor (improper verification). The notice of the objection must state the
defects relied upon with sufficient specificity that the party whose pleading is
rejected has a reasonable opportunity to cure the defect (Steele v State of
New York, 19 Misc 3d 766, 769 [Ct Cl 2008]; SLG Graybar v Hannaway Law
Offs., 182 Misc 2d 217, 222 [Civ Ct, New York County, 1999]; Westchester
Life v Westchester Mag. Co., 85 NYS2d 34 [Sup Ct, New York County, 1948]).
The sufficiency with which Defendant specified its objection is evidenced by the
fact that, as noted above, Claimant promptly filed and served a second Claim
(No. 116560) that does not suffer from the same defect in verification asserted
here. Moreover, it bears noting that the status of Claim No. 116560 is
unaffected by the Decision and Order of the Court in this matter.
Thus, as Defendant has established that the Claim herein was unverified as
required by Court of Claims Act § 11(b), Defendant’s motion to
dismiss is granted.