Defendant waived jurisdictional defenses by filing two different answers to the same claim, which had been served unverified, then rejected, then verified and re-served.
|Claimant short name:||SCOTT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claim number(s):||118023, 118043|
|Motion number(s):||M-78513, M-78535|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||RASHAD SCOTT, pro se|
|Defendant's attorney:||ANDREW M. CUOMO, ATTORNEY GENERAL
By: Paul F. Cagino, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 8, 2010|
|See also (multicaptioned case)|
In these two motions, claimant moves for an order "not to be charged twice for the exact (same) Claim," and for an order striking affirmative defenses from the answer. Defendant opposes the second motion but leaves the request for reimbursement to the court.
On February 11, 2010, claimant filed a claim seeking damages for the alleged loss and destruction of personal property during an August 7, 2009 cell search and alleged harassment and deprivation of his rights arising from the cell search and its aftermath. Claimant also served a copy of the claim on defendant by certified mail return receipt requested and that copy was also received on February 11. That same day, the Attorney General rejected the claim because it was not verified and returned it to claimant, advising him it was electing to treat the claim as a "nullity."
With a covering letter dated February 16, 2010 addressed to the Attorney General's Claims Bureau, copy to the Clerk of the Court of Claims, claimant noted the return of the unverified claim to him and stated:
"I am now returning the entire claim that was originally sent, with the required verification affixed. I sincerely apologize for any inconvenience that this minor mishap may have cost. I am also sending the Court their four (4) copies to attach to their copies of the claim as well." (1)
In a letter dated March 10, 2010, the Clerk of the Court acknowledged receipt of the original claim on February 11, 2010 and advised that it had been assigned Claim No. 118023. Claimant was also mailed a copy of an order granting claimant's application for a reduction of the filing fee, to $20.00, and providing that the fee would constitute an outstanding obligation against his inmate account.
In a second letter, this one dated March 17, 2010, the Clerk of the Court acknowledged receipt of a claim on February 18, 2010, advised that it had been assigned Claim No. 118043, and attached a second order granting claimant's application for a filing fee reduction and setting it at $20.00.
Claimant wrote to the Clerk's Office and advised that a mistake had been made, that his second submission constituted additional copies of the same claim, not a new claim, and that he should not be charged two filing fees. Claimant was told he needed to make a motion seeking reimbursement or rescission of one of the orders. Apparently, the second filing fee has not yet been paid but remains a surcharge on claimant's inmate account.
Review of the court's files shows that claimant indeed filed only one claim. Claim No. 118043 is a photocopy of Claim No. 118023. Somehow, when claimant re-served his claim on defendant, with the verification attached, and sent copies to the Clerk's Office with specific instructions in a covering letter that what he was filing were additional copies of the original claim, what resulted were two separate files, each containing the same claim. (2)
Based on the foregoing facts, the court finds and concludes that claimant is correct in asserting that (1) he intended to file only one claim, (2) he in fact filed only one claim, (3) a clerical error resulted in two separate files being created and two filing fees imposed, and (4) he is entitled to an order rescinding the second surcharge on his inmate account.
Claimant also alleges that defendant served two distinct answers in an attempt to confuse claimant and the court and asks that one be stricken. The court's file shows that on March 12, 2010 defendant in fact served two answers to Claim No. 118023. (3) The answers are mostly identical - they both contain the same admissions and denials and both contain two affirmative defenses alleging culpable conduct, in verbatim fashion - but the third affirmative defense is different in the two answers. One alleges that the court lacks jurisdiction because the claim "is not verified" and the other alleges the court lacks jurisdiction because the claim was not served in conformance with Court of Claims Act section 11(a) in that it was served by regular mail, not certified mail, return receipt requested.
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Section 11(c) of the Court of Claims Act provides as follows:
"Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in subdivision a of this section, or (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."
With respect to the defense that a claim or notice of intention is unverified or improperly verified, defendant must promptly reject and return the pleading with due diligence in accordance with the law applicable to verification generally (CPLR 3022; Lepkowski v State of New York, 1 NY3d 201) in addition to raising the defense in the answer or pre-answer motion pursuant to section 11(c). "Failure to comply with either requirement will result in a waiver of the verification objection and/or defense" (4)
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The facts of Gillard v State of New York (28 Misc 3d 1139) are strikingly similar to the facts here (with one difference, to be discussed infra.). Gillard also was an inmate property claim in which the claimant initially served an unverified claim, the claim was rejected by defendant and a second claim, identical to the first, was served. Like in this case, defendant served two answers on the same date:
"One answer includes defenses alleging improper verification of the claim received by the Attorney General on November 12, 2009 (third defense) and improper service of the claim received on December 2, 2009 by ordinary mail (fourth defense). The other answer includes defenses asserting improper service of the claims by regular mail instead of one of the methods of service prescribed by Court of Claims Act § 11 (a) (third and fourth defenses), but no defense with respect to the allegedly defective verification."
(28 Misc 3d 1139, 1140).
As Judge Collins noted, defendant's service of two answers in that case resulted in defendant's waiver of any verification defense it wished to assert, pursuant to the operation of section 11(c):
"Here, the defendant exercised due diligence in returning the defectively verified claim to the claimant within one day following its receipt (Matter of Salahuddin v LeFevre, 137 AD2d 937 ; Matter of O'Neil v Kasler, 53 AD2d 310 ). However, in this case the defendant served two answers to claim No. 117674, both of which were served and filed on the same date. It is, therefore, impossible to determine which answer was the first to be served and filed. In such circumstances, whichever answer was the second to be served and filed constituted an amendment of the first, original answer as a matter of law (CPLR 3025 [a]). To the extent the answer containing the verification defense was first filed and served, that defense was withdrawn, and thus a waiver of the defense was effected, by filing and service of the second answer which does not include such a defense. To the extent the answer asserting the verification defense was the second to be served and filed, it is ineffective to negate the waiver which previously occurred through service of the answer without this defense."
(28 Misc 3d 1139, 1142).
Here, for the same reasons outlined by Judge Collins, defendant waived whatever verification defense it may have had. Actually, by the time defendant prepared its two answers, both dated and verified March 12, there was no available defense based on alleged lack of verification since claimant had cured the defect when he re-served his claim, now properly verified, which was received February 25. Of course, that second service may itself have given rise to a different jurisdictional infirmity - arising from service by regular mail - but the verification issue had been cured long before the answers were served and filed on March 12.
The same waiver analysis necessarily applies to the jurisdictional defense arising from claimant's service of the claim by regular mail. Defendant's assertion that the defense was only raised in response to "Claim No. 118043" and not in response to Claim No. 118023 is demonstrably false. Claim No. 118043 did not exist when defendant served the two answers - it did not come into being until five days later when a new file was mistakenly created by the Clerk of the Court (see fn. 3). As of March 12 when the answers were filed, defendant had been (1) served with an unverified claim on February 11 which it returned to claimant on the same day and (2) served again with the very same document - not merely the same in substance but the very same pieces of paper with the February 11 file stamp still on them - on February 25. Defendant's response - serving two answers on the same date, both containing the same claim number, one containing the defense that the claim was not verified and the other containing the defense that the claim was served by regular mail - was totally inappropriate. There is absolutely no basis for defendant's contention that these facts give rise to the conclusion that it had been served with two separate claims. (5) It had, in fact, been served with the same claim twice. The first service was a nullity and the second service was by a method not authorized by statute. At that point, the appropriate defense to raise was lack of jurisdiction arising from service of the claim by regular mail. Instead, defendant chose to serve two answers to the same claim that were contradictory in content. One answer contained a valid affirmative defense (regular mail service) and another answer alleged that the claim was unverified (which at that point was untrue) but did not allege a jurisdictional issue arising from improper service. (6) By acting in this manner, defendant, rather than raising either defense with particularity as required by section 11(c), waived both defenses pursuant to the explicit terms of the statute (Knight v State of New York [177 Misc 2d 181, 184]).
Accordingly, the court grants these two motions as follows: the Clerk of the Court is directed to close the file in Claim No. 118043 and to rescind the order imposing a filing fee for that claim. The answer in Claim No. 118023 shall consist of the admissions, denials and defenses that were common to the two answers filed by defendant in that claim; i.e., the first nine paragraphs of the answer, with paragraph "Tenth" (alleging lack of jurisdiction arising from lack of verification in one answer, and lack of jurisdiction arising from regular mail service in the other answer) stricken.
November 8, 2010
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Notice of Motion and Affidavit (M-78513)
Notice of Motion and Affidavit (M-78535)
Affirmation in Opposition dated July 19, 2010
Affirmation in Opposition dated July 21, 2010
Supplemental Affirmation in Opposition dated August 9, 2010 and exhibits
Claim No. 118023
Claim No. 118043
Answer filed March 12, 2010 in Claim No. 118023
Answer filed March 12, 2010 in Claim No. 118023, changed to claim No. 118043
Answer filed March 25, 2010 in Claim No. 118043
Letter from Claimant to Attorney General and Court of Claims dated February 16, 2010 (from court's file)
1. This letter enclosing the verified claim was sent regular mail.
2. The only difference between the two claims, as provided to the court by the clerk's office, is the extremely curious fact that the first claim (118023) has a verification stapled to it (the claim is file stamped February 11 but the verification is dated February 18) and the later claim (118043) does not have a verification page attached.
3. Both answers were labeled "Claim No. 118023" by defendant and read that way when they were served and filed. The Clerk of the Court had not yet created a file called "Claim No. 118043," which did not occur until five days after the two answers were filed. One of the two answers filed in Claim No. 118023 has that claim number crossed out and Claim No. 118043 handwritten in.
4. Letter from Michael Colodner, Counsel, Unified Court System, to David Nocenti, Counsel to Governor, Re: NY Senate Bill S5855 [June 11, 2007], Bill Jacket, L 2007, ch 223, at 10, 2007 McKinney's Session Laws of NY, at 2188, in support of technical bill clarifying the amendment to section 11(c) adding subdivision 11(c)(iii).
5. Defendant had no knowledge that the Clerk's Office would mistakenly create a second claim file. The same claim number - 118023 - was put on both March 12 answers. It was not until defendant had later been informed that the clerk had assigned a second claim number that defendant served a third answer, identical to one of the prior answers but this one with Claim No. 118043 on it.
6. In Gillard, both answers contained the regular mail defense but only one contained the verification defense, thus the verification defense was waived but the regular mail defense was not. Here, each answer contains one defense and omits the other.