Defendant's motion to dismiss unverified claim as untimely was denied where it failed to reject an unverified notice of intention as a nullity or raise this defense with sufficient particularity in its answer.
|Claimant short name:||FORD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Marlon G. Kirton, Esquire|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 23, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 (a) (2) and (8) and Court of Claims Act §§ 10 (3) and 11 contending that the claim was untimely served and filed.
A document denominated a "Notice Of Claim Against The State of New York, and of Intention To Sue Thereon" was personally served on the Attorney General on September 26, 2008. The document was unverified and purported to make a claim for damages arising out of the administrative imposition of a period of postrelease supervision (PRS). As pertinent here, the document (defendant's Exhibit A) stated the following:
"PLEASE TAKE NOTICE that the claimant herein hereby makes claim and demand against the State of New York as follows:
This complaint is filed on behalf of JAMES FORD, who currently resides at 227 Bowery Street, New York, NY. . .
5.) . . . Plaintiff was released [from prison] in 2003, but was never notified of any post release supervision, nor was a post parole clause put on record at his sentencing on February 1998. However, New York State Division of Parole administratively added five (5) years post-release supervision to the Plaintiff's sentence in violation of his state and federal rights to due process.
6.) Due to the Plaintiff's lack of knowledge, a warrant for his arrest was issued for an alleged violation of parole, which resulted in him serving an additional (5) years in Sing Sing Correctional Facility, located in Ossining, New York, USA.
7.) In a hearing on July 2, 2008, the Plaintiff was able to get all warrants vacated and the post-release supervision was rendered null and void nunc pro tunc. . .
8.) The nature of the claim: The Plaintiff was unlawfully imprisoned as a direct result of failing to receive proper notice of the post parole program ...
9.) The time when, the place where, and the manner in which the claim arose: The Claimant was imprisoned on or about July 2, 2008.
10.) The items of damage or injuries claimed are: Unlawful imprisonment; loss of earnings; emotional distress; and attorney's fees and costs . . ."
Defendant treated the aforementioned document as a claim, serving an answer on November 5, 2008 in which both lack of a verification and the failure to file the claim with the Clerk of the Court of Claims were raised as defenses (defendant's Exhibit B, Verified Answer, first and fifth defenses). It is not asserted, however, that the document was rejected with due diligence for lack of a verification.
A document inconsistently denominated as both a "Claim" on its face and a "Notice of Claim Against The State Of New York, and of Intention To Sue Thereon" on the back cover was served on the Attorney General on March 24, 2009 and filed with the Clerk of the Court of Claims on March 25, 2009 (defendant's Exhibits D and E). Defendant served an answer to the "Claim", raising as its fifth defense that the Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant because "neither a verified claim nor a verified notice of intention was served within ninety (90) days of the accrual of the claim as required by Court of Claims Act Sections 10 (3) and 11" (defendant's Exhibit F, Verified Answer, fifth defense). Defendant now moves to dismiss the claim as untimely served and filed, contending that neither a verified claim nor a verified notice of intention to file a claim were served within 90 days from the date of accrual as required by Court of Claims Act § 10 (3).
A claim alleging either an unintentional or intentional tort must be filed and served within 90 days following the claim's accrual unless a notice of intention to file a claim is served within that same time period (Court of Claims Act § 10  and [3-b]). The proper and timely service of a notice of intention to file a claim extends the period in which to file and serve a claim until two years after accrual of a claim for unintentional torts (Court of Claims Act § 10 ) and one year for intentional torts (Court of Claims Act § 10 [3-b]). Here, the defendant contends that even if the longer time limitation for unintentional torts applies (Court of Claims Act § 10 ), the claim was untimely filed and served.
The timeliness of the claim served on March 24, 2009 and filed on March 25, 2009 depends upon whether the document served on September 26, 2008 satisfies the pleading requirements for a notice of intention to file a claim set forth in Court of Claims Act § 11 (b) so as to extend the time to file and serve a claim. The guiding principle informing section 11 (b) is whether the claim or notice of intention is sufficiently definite " 'to enable the State ... to investigate the claim[s] promptly and to ascertain its liability under the circumstances' " (Lepkowski v State of New York, 1 NY3d 201, 207 , quoting Heisler v State of New York, 78 AD2d 767, 767 ). Here, although the document appears to have been drafted in accordance with the requirements of General Municipal Law § 50-e, it nonetheless states "the time when and place where such claim arose, [and] the nature of same" thereby fulfilling the pleading requirements for a notice of intention to file a claim in the Court of Claims (Court of Claims Act § 11 [b]). To the extent this document purports to "make  claim and demand against the State of New York" (defendant's Exhibit A), however, it resembles a claim and the defendant treated it as such, serving an answer in which it raised the failure to file the claim with the Clerk of the Court as a defense (defendant's Exhibit B, Verified Answer, fifth defense). Nevertheless the law is firmly established that in order to commence an action in the Court of Claims both filing and service of the claim are required (Court of Claims Act § 11 [a] [i]; Dreger v State of New York, 81 NY2d 721 ). The service of an answer to an unfiled claim was therefore unnecessary. Inasmuch as the document served on September 26, 2008 fulfills the pleading requirements for a notice of intention to file a claim in the Court of Claims (see Court of Claims Act § 11 [b]), it will be treated as such for the purpose of determining the timeliness of the claim (see Gutierrez v State of New York, UID # 2007-029-021, Claim No. 110205 [Ct Cl, August 22, 2007], Mignano, J.; cf. Przybylak v Roswell Park Cancer Institute, 2006-037-016, Claim No. None, [Ct Cl, July 7, 2006] Moriarty, J.).(2)
Court of Claims Act § 11 (b) requires that "[t]he claim and notice of intention to file 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 (supra) the Court of Appeals held that this section embraces the remedy set forth in CPLR 3022 which provides that an insufficiently verified pleading may be treated as a nullity "provided that [the recipient] gives notice with due diligence" that he or she elects to do so. In addition to the required notice, the defendant must also raise its objection to the unverified or improperly verified claim or notice of intention to file a claim in either a pre-answer dismissal motion or as an affirmative defense in the answer (Gillard v State of New York, 28 Misc 3d 1139 ; Rister v City Univ. of N.Y., 20 Misc 3d 195 ). 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 notice of intention, the defendant must raise the objection both in a notice provided pursuant to CPLR 3022 and either a pre-answer dismissal motion or the responsive pleading. Here, the defendant failed to notify the claimant of its election to treat the unverified notice of intention as a nullity as required by CPLR 3022. Nor was the objection raised as a defense in the defendant's answer to the claim with sufficient particularity (defendant's Exhibit F; see also Vogel v State of New York, 187 Misc 2d 186 ). Defendant's objection to the unverified notice of intention was, therefore, waived (Court of Claims Act § 11 [c] [iii]; McAvaney v State of New York, 2008-009-035, Claim No. 115499 [Ct Cl, December 18, 2008] Midey, J.). As a result, the claim served on March 24, 2009 and filed with the Court on March 25, 2009 was timely (Court of Claims Act §§ 10 , and [3-b]). Defendant's motion to dismiss the claim as untimely is denied.
November 23, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
2. Unreported decisions from the Court of Claims are available via the internet at www.nyscourtofclaims.state.ny.us.