Claimant's motion to amend the claim to include a verification or otherwise allow the claim to proceed was denied and defendant's cross-motion to dismiss the unverified claim was granted. Claimant was granted late claim relief.
|Claimant short name:||MASON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Helbock, Nappa & Gallucci
By: Matthew J. Santamauro, Esquire, of counsel
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Stephen J. Maher, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 11, 2010|
|See also (multicaptioned case)|
Claimant moves for an Order "allowing the claim to proceed" pursuant to CPLR 3022 and 3026 or, in the alternative, granting leave to amend the claim pursuant to CPLR 3025 or to file a late claim pursuant to Court of Claims Act § 10 (6).
Claimant seeks damages for wrongful confinement arising from the improper calculation of the maximum expiration date for his release from prison. Claimant alleges that the maximum expiration date was January 22, 2009 but that he was not released from prison until May 27, 2009. The claim, filed on July 27, 2009 and served on August 24, 2009, was unverified. By letter dated August 24, 2009 defendant notified claimant that pursuant to CPLR 3022 it is "electing to treat the enclosed Claim . . . as a nullity and is therefore rejecting and returning it to you because . . . it is unverified" (claimant's Exhibit B annexed to affirmation of Matthew T. Santamauro dated March 9, 2010). Defendant's answer to the claim, served on September 9, 2009, likewise raised as an affirmative defense that the claim is "defective as it is unverified as required by Section 11 (b) of the Court of Claims Act" (defendant's Exhibit A, p. 2). In support of its motion for an Order "allowing the claim to proceed", claimant contends that defendant's letter rejecting the claim as unverified failed to apprise the claimant of the nature of the defect with sufficient particularity.
Court of Claims Act § 11 (b) requires that a claim "shall be verified in the same manner as a complaint in an action in the supreme court." In Lepkowski v State of New York (1 NY3d 201 ) the Court of Appeals held that § 11 (b) embraces the remedy set forth in CPLR 3022, which provides that a defectively verified pleading may be treated as a nullity if the recipient "gives notice with due diligence to the attorney of the adverse party that he elects to do so." In addition to the required notice, the defendant must also raise its objection to the unverified or improperly verified claim in either a pre-answer dismissal motion or as an affirmative defense in the answer. Court of Claims Act § 11 (c) (iii) provides in this regard that "[a]ny objection or defense based upon failure to comply with . . . the verification requirements as set forth in subdivision b of this section is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure." Thus, to preserve the defense of an improperly verified or unverified claim, the defendant must raise the objection both in a notice pursuant to CPLR 3022 and either a pre-answer dismissal motion or the responsive pleading.(1) Here, the unverified claim was promptly rejected as "unverified" and the objection was preserved as an affirmative defense in the defendant's answer.
Notwithstanding the claimant's contrary argument, the defendant's notice of rejection and its affirmative defense stating that the claim was "unverified" was sufficiently particular to apprise the claimant of the nature of the defect. Unlike those cases in which a verification fails to comport with the statutory requirements of CPLR 3021 or is otherwise defective, here the claim was simply unverified (cf. Matter of Steele v State of New York, 19 Misc 3d 766 ). No further detail regarding the nature of the defect was necessary.
Claimant's request to amend the claim to provide a verification is denied. The Court of Appeals has held that the provisions of Court of Claims Act § 11 (b) are " 'substantive conditions upon the State's waiver of sovereign immunity' "(Kolnacki v State of New York, 8 NY3d 277, 280 , quoting Lepkowski v State of New York, 1 NY3d 201, 207 ). The failure to satisfy any one of the requirements of section 11 (b) is a jurisdictional defect (id. at 281) which may not be cured by amendment (Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983 ; Grande v State of New York, 160 Misc 2d 383 ). As a result, claimant's request for an Order "allowing the claim to proceed" or granting leave to amend the claim is denied and defendant's cross-motion to dismiss the unverified claim is granted.
The Court will now turn to that branch of claimant's motion seeking late claim relief. Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy."
The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The proposed claim (claimant's Exhibit D annexed to affirmation of Matthew T. Santamauro dated March 9, 2010) asserts a cause of action for wrongful confinement, a species of false imprisonment (Gittens v State of New York, 132 Misc 2d 399 ), and is subject to a one-year statute of limitations (CPLR 215 ). A claim for wrongful confinement accrues upon a claimant's release from confinement (Bumbury v City of New York, 62 AD3d 621 ; Charnis v Shohet, 2 AD3d 663 ; Jones v Town of Johnstown, 41 AD2d 866 ). Inasmuch as the claimant was allegedly released from confinement on May 27, 2009 his motion, filed and served in March, 2010, is timely.
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 ). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 ).
No excuse is advanced by the claimant for the failure to timely file and serve his claim. Instead, claimant argues that, in fact, an unverified claim was timely filed and served. The failure to timely file and serve a verified claim, however, must be attributed to law office failure, which is not an acceptable excuse for the failure to timely file and serve a proper claim (Langner v State of New York, 65 AD3d 780, 783 ). Under these circumstances, the Court finds the excuse for the delay in serving and filing a properly verified claim to be unreasonable.
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Claimant asserts the State had notice and an opportunity to investigate the facts of the proposed claim since a claim, albeit unverified, was timely served and filed and the State was familiar with the circumstances surrounding his release from prison. It does appear from the motion papers that prior to the date of his release from prison the State was aware of the claimant's contention that the term of his imprisonment was improperly calculated (claimant's Exhibit E). It also appears the State received the unverified claim within the statutory period for the commencement of an action pursuant to Court of Claims § 10 (3-b). Moreover, the State's continuing ability to investigate the essential facts of the claim remains unimpaired. In opposition to the motion, the State has failed to establish that it will be unduly prejudiced in the event the motion for late claim relief is granted. Claimant has therefore established that the State had timely notice and an opportunity to investigate the claim and will suffer no prejudice in the event late claim relief is granted.
With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 ; Fowx v State of New York, 12 Misc 3d 1184 ).
Evaluation of the merit of the claim requires consideration of whether the facts of this case may give rise to a cause of action for wrongful confinement. To establish a cause of action for wrongful confinement a claimant must show that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged . . ." (Broughton v State of New York, 37 NY2d 451, 456 ), cert denied sub nom. 423 US 929 ). Here, the allegations in the proposed verified claim that the maximum expiration date of claimant's prison term was January 22, 2009 and that he was not released from prison until May 27, 2009 sufficiently establish the potential merit of his proposed claim for wrongful excessive confinement. This factor therefore weighs in favor of the claimant.
As to the final factor to be considered, it has not been suggested that an alternative remedy is available to this claimant.
A review of all of the factors, especially the apparent lack of prejudice and potential merit of the proposed claim, persuades the Court that late claim relief is appropriate.
Based on the foregoing, the defendant's cross-motion to dismiss the claim is granted (Motion No. CM-78130). Claimant's motion (Motion No. M-78056) is granted to the extent claimant may file and serve a late claim in accordance with Court of Claims Act §§ 11 and 11-a within 45 days of the date this Decision and Order is filed. The motion is otherwise denied.
June 11, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Although Court of Claims Act 11 (c) (iii) was amended in 2007 to delete the reference to CPLR 3022, the legislative history to the amendment makes clear that the reference to CPLR 3022 was deleted as "misplaced" and unnecessary in light of the Court of Appeals holding in Lepkowski (supra) requiring that an unverified or defectively verified claim be treated no differently than an unverified or defectively verified complaint is treated under CPLR 3022 in the Supreme Court (Bill Jacket, Laws of 2007, Chapter C223, Letter of Michael Colodner dated June 11, 2007 in Support of Bill 5855). "Failure to comply with either requirement will result in a waiver of the verification objection and/or defense" (Bill Jacket, Laws of 2007, Chapter C223, Letter of Michael Colodner dated June 11, 2007 in Support of Bill 5855).