|Claimant(s):||THE VENTY GROUP, INC.|
|Claimant short name:||THE VENTY GROUP|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE INSURANCE FUND|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Miller & Associates, P.C., Special Counsel to:
Jones Hirsch Connors & Bull P.C.
By: William C. Mahlan, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Ellen S. Mendelson, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||June 7, 2010|
|See also (multicaptioned case)|
In this claim, it is alleged that the State Insurance Fund failed to undertake the defense of a lawsuit in which claimant The Venty Group, Inc. was a third-party defendant, and that the defense was handled by Venty Group's casualty insurer at a cost of $14,363.33.
The claim, which was verified by counsel for the Venty Group, was filed and served on November 9, 2009.(1) That same day, the Office of the Attorney General returned the claim to counsel for the Venty Group with a cover letter stating that:
Pursuant to CPLR Rule 3022, the defendant is electing to treat the enclosed [claim], received on November 9, 2009, as a nullity and is therefore rejecting and returning it to you because . . . if the party is a domestic corporation, the verification must be made by an [officer] of the corporation . . .
Thereafter, defendant served and filed an answer which contained the following as the second affirmative defense:
The claim is defective for failing to include a proper verification, in accordance with the Court of Claims Act Section 11 and Civil Practice Law and Rules Section 3020 . . .
Claimant moves for an order: (1) extending the time for it to supply a "proper verification"; (2) excusing "any delay in providing a proper verification"; (3) finding that the "purportedly defective verification was not rejected with due diligence"; (4) "directing that any claimed defect shall be ignored" as there has been no showing of prejudice; or (5) allowing verification by a corporate officer nunc pro tunc. Defendant cross-moves to dismiss on the ground that the claim was improperly verified.
Paragraph one of §3020(d) of the CPLR provides that "if the party is a domestic corporation, the verification shall be made by an officer thereof . . ."(2) Paragraph three of such section provides that "if the party is a foreign corporation, or is not in the county where the attorney has his office. . . the verification may be made by such . . . attorney." While paragraph three does not specifically refer to domestic corporations, there is authority that this paragraph comprehends a domestic corporation if it is not in the county where the attorney has his or her office. Two Clinton Square Corp. v Gorin Stores, Inc., 51 AD2d 643 (4th Dept 1976). Defendant does not dispute the assertion of Venty Group's counsel in the verification that such corporation "is not in the County of New York, where the undersigned has his office." This Court finds that Venty Group's claim was properly verified.
Even were the claim not properly verified, defendant failed to raise such defense in its answer with sufficient particularity to preserve the objection. Section 11.c of the Court of Claims Act provides 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.
The affirmative defense at issue in Rister v City University of New York., 20 Misc 3d 195, 200 (Ct Cl 2008) was identical to the one in this case, i.e., defendant stated that the claim was "'defective for failing to include a proper verification, in accordance with Court of Claims Act Section 11 and Civil Practice Law and Rules Section 3020.'" The Court found that such defense was insufficiently particular because it "did not specify the manner in which the verification was not proper, or 'the action that would have been proper'. . . , namely (according to the defendant on this submission): that the verification 'was not signed by the party, and it did not state why the party did not sign it, and also did not state the grounds for counsel's belief as to the matters not stated upon his knowledge' . . ." 20 Misc 3d at 201. See also Sinacore v State of New York, 176 Misc 2d 1 (Ct Cl 1998).
Here, defendant's second affirmative defense does not state that Venty Group's verification should have been made by an officer of the corporation, and the defense therefore lacks sufficient particularity for the purposes of §11.c of the Act. Thus, defendant has waived such defense under to §11.c.
In view of the foregoing, having reviewed the submissions(3) , IT IS ORDERED that motion no. M-77768 be denied as unnecessary and that cross-motion no. CM-78127 be denied.
June 7, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. Section 11.a.(i) of the Court of Claims Act ("the Act") provides that "[s]ervice by certified mail, return receipt requested, upon the attorney general shall not be complete until the claim or notice of intention is received in the office of the attorney general." Documents contained in exhibit B to defendant's cross-motion indicate that the claim was sent out by certified mail, return receipt requested on November 4, 2009 and received on November 9, 2009.
2. There is apparently no dispute that The Venty Group, Inc. is a domestic corporation.
3. The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A through E; defendant's notice of cross-motion with "Affirmation in Opposition and in Support of Cross Motion" with exhibits A and B; and claimant's "Affirmation in Opposition to Cross-Motion and in Further Support of Motion."