Claim was dismissed due to lack of a verification.
|Claimant short name:||CORNWALL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Shawn Cornwall, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Belinda A. Wagner, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 28, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of the claim pursuant to CPLR § 3211 (a) (2), (7) and (8).
On July 2, 2008 the Attorney General's Office received a properly verified notice of intention to file a claim alleging the claimant slipped and fell in a shower area at Great Meadow Correctional Facility on June 16, 2008 (defendant's Exhibit A). Thereafter, on May 27, 2010, claimant filed a verified claim pertaining to the same incident. Apparently, however, the copy of the claim received by the Attorney General on June 7, 2010 was not properly verified in that, although signed and stamped by a notary public, the verification was not signed by the claimant (defendant's Exhibit B). Defendant returned the unverified claim on the same day it was received, advising the claimant that it was electing to treat the claim as a nullity because the claimant did not sign the verification (defendant's Exhibit C). A properly verified claim was thereafter served upon the Attorney General by regular mail and received by the defendant on June 25, 2010 (defendant's Exhibit D).
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 for a defectively verified pleading, which provides that an insufficiently verified pleading may be treated as a nullity provided the recipient gives notice with due diligence to the attorney of the adverse party that he elects to do so. In addition to the notice, the defendant is required to raise its objection to the unverified or improperly verified claim in either a pre-answer dismissal motion or as an affirmative defense in its answer. Court of Claims Act § 11 (c) provides in this regard that "[a]ny objection or defense based upon failure to comply with . . . [iii] 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."
Here, the defendant promptly rejected the unverified claim, specifying with sufficient particularity the nature of the defect, and moved for dismissal before a responsive pleading was due.(1) The fact that the claim filed with the Court on May 27, 2010 was properly verified is of no moment as " where a litigant in this court serves on the Attorney General an unverified claim that is then properly rejected by the Attorney General pursuant to CPLR 3022, and fails to correct that defect by serving a verified claim within the applicable time period contained in section 10 of the Court of Claims Act, the action has not been commenced in a timely fashion. This is true even where a properly verified claim was filed with the court" (Newman v State of New York, 5 Misc 3d 640, 642 ). In addition, the defendant established that the claim subsequently received on June 25, 2010 (defendant's Exhibit D), though properly verified, was not served by one of the methods authorized by Court of Claims Act § 11 (a) (i) and, in any event, was served more than two years following the accrual of the claim (Court of Claims Act § 10 ).
For the foregoing reasons, the claim is dismissed.
October 28, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Although the instant motion was initially served on claimant at an improper address, it was re-served shortly thereafter at a proper address and claimant makes no argument he was prejudiced by the brief delay. Under these circumstances, consideration of the motion on the merits is appropriate (CPLR 2004).