New York State Court of Claims

New York State Court of Claims

MORRISON v. STATE OF NEW YORK, #2009-040-044, Claim No. 116546, Motion No. M-76564


Synopsis


Claim dismissed as it was not properly verified and was timely and properly rejected by Defendant.

Case Information

UID:
2009-040-044
Claimant(s):
FREDDIE MORRISON
1 1.Caption amended to reflect the State of New York as the proper defendant.
Claimant short name:
MORRISON
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116546
Motion number(s):
M-76564
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Walter Glibowski, Esq.
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael T. Krenrich, Esq., AAG
Third-party defendant’s attorney:

Signature date:
June 5, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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, is granted.

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 Motion).

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 [2003]; citing Matter of Miller v Board of Assessors, 91 NY2d 82, 86 [1997])” (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.


June 5, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Defendant’s motion to dismiss:

Papers Numbered


Notice of Motion, Affirmation in Support
and Exhibits Attached 1


Filed Papers: Claim