|Claimant short name:||SANTOS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Andrew F. Plasse, Esq.|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Janet Polstein, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 28, 2010|
|See also (multicaptioned case)|
The claim of Jeffrey Santos is for unjust conviction and imprisonment under §8-b of the Court of Claims Act (the "Act"). The claim alleges as follows: Mr. Santos was arrested on December 12, 1997, thereafter convicted on an unspecified date of two counts of assault in the second degree, and sentenced on November 5, 1998 to two concurrent terms of six years. He was incarcerated "as a pre-trial detainee and a convicted felon, from December 12, 1997 to June 2001," when he was released on bail following the granting of a motion pursuant to Criminal Procedure Law §440.10(1)(g). That decision was affirmed on appeal, claimant was then re-tried on the same charges, and was acquitted on September 28, 2004.
Defendant moves for summary judgment dismissing the claim on the grounds that: (1) it was not personally verified; and (2) it fails to comply with the pleading requirements of §§8-b.3 and 8-b.4 of the Act. Claimant cross-moves to amend his claim by attaching various exhibits so as to satisfy the pleading requirements of the Act.
It is undisputed that Mr. Santos' claim, which was served and filed on September 29 and 30, 2004, respectively, was not personally verified. Rather, his attorney verified the claim, stating that "[t]he reason why this verification is made by me and not by the above party [is] because he resides in a county outside of the principal location of my office."
As in the instant case, in Long v State of New York, 7 NY3d 269 (2006), the Court of Appeals was faced with an unjust conviction claim that had not been personally verified, but rather had been verified by claimant's attorney because his client resided in another county. In ruling that "claimant's failure to verify his claim in compliance with the statute mandates its dismissal," the Court stated that:
Court of Claims Act §8-b(4) plainly states that "[t]he claim shall be verified by the claimant." The Law Revision Commission likewise emphasized that a claim "must be personally verified" . . . "Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" . . .
7 NY3d at 276 (citations omitted).
In its November 2, 2004 answer in this case, the State's seventh affirmative defense states that "[t]he claim fails to comply with Court of Claims Act Section 8-b(4), as it is not personally verified by the claimant."
Santos argues that defendant waived the defense of a defective verification because the State did not return the claim with "due diligence." The due diligence requirement is found in CPLR 3022, which states that "[w]here a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do." The Long Court held that such section is inapplicable to unjust conviction claims, stating that "the verification requirement in Court of Claims Act §8-b(4) is specific to claims for unjust conviction and imprisonment and makes no reference to the rules governing Supreme Court practice. Hence, CPLR 3020(d)(3) and 3022 have no application to this case."
In view of the foregoing, I am constrained to find that the claim of Jeffrey Santos must be dismissed, and defendant's remaining arguments need not be reached.
Accordingly, having reviewed the submissions(1) , IT IS ORDERED that motion no. M-77664 be granted and that claim no. 109907 be dismissed, and IT IS FURTHER ORDERED that cross-motion no. CM-78155 be denied.
July 28, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A through D; claimant's notice of cross-motion with "Affirmation in Support of Cross-Motion and Answering Affirmation" and exhibits A and B; "Claimant's Memorandum of Law in Opposition to Motion to Dismiss and in Support of Cross Motion to Amend Claim"; defendant's "Affirmation in Opposition to Claimant's Cross-Motion to Amend and in Further Support of Defendant's Motion to Dismiss" with exhibit A; and claimant's "Reply Affirmation in Support of Cross-Motion."