New York State Court of Claims

New York State Court of Claims

TOLLIVER v. THE STATE OF NEW YORK, #2009-040-052, Claim No. 114929, Motion Nos. M-76084, CM-76534


Synopsis


State’s motion to dismiss Claim as untimely granted as Notice of Intention was serve late and did not extend Claimant’s time to serve and file the Claim. Cross-motion to file a late Claim pursuant to Court of Claims Act § 10(6) granted.

Case Information

UID:
2009-040-052
Claimant(s):
ERIC TOLLIVER
Claimant short name:
TOLLIVER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114929
Motion number(s):
M-76084
Cross-motion number(s):
CM-76534
Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
RONEMUS & VILENSKYBy: Nadia Lescott, 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:
July 8, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

For the reasons set forth below, Defendant’s 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 denied. The cross-motion to serve and file a Claim late, pursuant to Court of Claims Act § 10 (6) is denied as moot.

The Claim, which was filed with the Clerk of the Court on March 5, 2008, alleges that on June 17, 2006, while incarcerated at Shawangunk Correctional Facility located in Wallkill, New York, Claimant fell while playing soccer in the “E” Block yard when his foot went into a hole. He asserts that the Defendant was negligent in maintaining the area and in failing to protect Claimant or warn him of a dangerous condition.

Pursuant to Court of Claims Act § 10(3), the provisions applicable to personal injury actions caused by negligence or unintentional torts, 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 two years 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 Notice of Intention to File a Claim without a proper verification on September 13, 2006 (Affirmation of Michael T. Krenrich, Esq., ¶ 8; see Ex. B attached to Motion) and that the Attorney General’s office received a Claim without a proper verification on March 10, 2008 (Krenrich Affirmation, ¶ 9; 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 , ¶ 6).

Counsel further asserts:

“Although the Court of Appeals has not specified a time period by which a party must object to an unverified pleading, the New York State Legislature has clarified the issue within the Court of Claims Act Section 11(c), directing that where a pleading is served without a sufficient verification, it may be treated as a nullity provided that such defect is raised, with particularity, within the responsive pleading” (Krenrich Affirmation, ¶ 7).

Defendant does not assert, nor does it submit any evidence, that it rejected the Notice of Intention or Claim as improperly verified. Defendant, in its Verified Answer, served April 17, 2008, raised the issue of improper verification as the third defense and timeliness as its fourth defense.

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).

Judge Melvin L. Schweitzer in Scott v State of New York (18 Misc 3d 455, 459-460 [Ct Cl 2006], affd 46 AD3d 664 [2d Dept 2007]) stated:
Section 11 (c), as amended, applies to an objection or defense based on the “verification requirements as set forth in subdivision b of this section and rule three thousand twenty-two of the civil practice law and rules.” The “verification requirement” of section 11 (b) is that a claim or notice of intention be verified. The “verification requirement” of CPLR 3022 is that if a party receiving a pleading elects to make an issue out of verification, it must do so by giving notice with due diligence. Thus, the statute indicates the intention to incorporate CPLR 3022 into Court of Claims practice, not to provide, as implicitly contended by defendant, that CPLR 3022 does not apply in the Court of Claims. The argument that the intention was to overrule Lepkowski and provide that defendant could raise the verification issue by motion or answer instead of following the CPLR 3022 procedure does not find support in either the plain language of the statute, which expressly references CPLR 3022, or in the Assembly Memorandum, which states that its purpose was to clarify the procedure to be followed subsequent to rejection pursuant to CPLR 3022 and to resolve the perceived conflict between one decision that held that rejection by itself was enough and another decision that held that rejection must be followed up by a motion or in the answer.
The Court denied the State’s motion to dismiss the improperly verified Claim as it failed to reject the Claim in accordance with CPLR 3022.

Similarly, in Rister v City Univ. of N.Y. (20 Misc 3d 195 [Ct Cl 2008]), Judge S. Michael Nadel denied the State’s motion to dismiss an improperly verified claim that was not rejected. Defendant did raise the issue as a defense in its answer, although the Court determined that the defense was not raised with particularity as required by Court of Claims Act § 11(c).

The argument raised by the State here, that Defendant complied with Court of Claims Act § 11(c) by raising the defense of improper verification in its Answer, even though the Claim was not rejected by Defendant, was rejected in both Scott v State of New York (supra) and Rister v City Univ. of N.Y. (supra). Rather, the Defendant “is required to both reject the defective claim and to assert its objection/defense as provided by law” (Rister v City Univ. of N.Y., 20 Misc 3d 195, supra at 200). This Court agrees with the analyses set forth in Scott v State of New York (supra) and Rister v City Univ. of N.Y. (supra), and finds that the failure of Defendant to reject the Claim with due diligence, as required by CPLR 3022, results in a waiver of the defense of improper verification. The State’s motion to dismiss is, therefore, denied.

Claimant’s cross-motion for permission to serve and file a Claim late, pursuant to Court of Claims Act § 10(6), is denied as moot.


July 8, 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 and Claimant’s cross-motion for permission to serve and file a late Claim:

Papers Numbered


Notice of Motion, Affirmation in Support
& Exhibits Attached 1


Notice of Cross-Motion, Affirmation in Support

of Cross-Motion and in Opposition to Motion
& Exhibits Attached 2

Affirmation in Opposition 3



Filed Papers: Claim, Answer