Defendant's Motion to Dismiss for lack of jurisdiction denied.
|Claimant short name:||BALBI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Gary E. Divis, Esq.|
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Christina Calabrese, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||November 21, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion: (1) to dismiss the Claim pursuant to CPLR 3211(a)(2) and (8), on the basis that the Court lacks both subject matter jurisdiction over the Claim; and (2) personal jurisdiction over the Defendant, is denied.
This Claim, which was filed with the office of the Clerk of the Court on May 8, 2017, alleges that, on September 29, 2016, at approximately 10:45 a.m., in the C-1 Day Room at Franklin Correctional Facility (hereinafter, "Franklin"), Claimant slipped and fell on accumulated liquids that were on the floor under a "liquid dispenser" as there was no reservoir under the dispenser (Claim, ¶¶ 2, 3). It is alleged that Defendant was negligent in creating a safety hazzard and in failing to timely repair the condition (id., ¶5).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act § 10). In either case, Claimant was required to initiate action within 90 days of the Claim's accrual.
In her affirmation submitted in support of the State's Motion, Defense counsel asserts that the Attorney General's office received a Notice of Intention to File a Claim from Claimant on November 15, 2016 (Affirmation of Christina Calabrese, Esq., Assistant Attorney General [hereinafter, "Calabrese Affirmation"], ¶ 4, and Ex. A attached thereto). Claimant served a Claim on May 11, 2017 (id., ¶ 5, and Ex. B attached thereto). Defendant asserts that, during his deposition,(1) held on October 11, 2017, Claimant testified that another inmate created and signed the Notice of Intention to File a Claim that Claimant served and that Claimant did not read the information contained in the document to verify its accuracy (id., ¶ 8, and Ex. D, pp. 58-64 attached thereto). Defendant argues that the Notice of Intention is not properly verified, therefore, rendering the document a nullity, which, in turn, renders the Claim untimely served and filed (id., ¶¶ 10, 12).
CPLR 3022 provides:
A defectively verified pleading shall be treated as an unverified pleading. Where 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.
Court of Claims Act § 11(b) requires that notices of intention and claims "be verified in the same manner as a complaint in an action in the [S]upreme [C]ourt." The Court of Appeals has declared that the language means precisely what it says and, thus, "embraces CPLR 3022's remedy for lapses in verification" (Lepkowski v State of New York, 1 NY3d 201, 210 ). Thus, the sufficiency of Claimant's verification and Defendant's rejection at issue in this Claim must be evaluated in the same manner as they would be in any other court where practice is governed by the CPLR. "A Defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification" (id.).
Pursuant to Court of Claims Act § 11(c), however, any such defect is waived unless it is raised with particularity as an affirmative defense either by motion to dismiss prior to service of the responsive pleading, or in the responsive pleading itself (see Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Here, Defendant did not make a pre-Answer Motion to dismiss and did not raise in its Answer the defense that the Notice of Intention is defective as it is not verified as required by Section 11(b) of the Court of Claims Act and, therefore, did not extend the time to file a Claim pursuant to Section 10(3) of the Court of Claims Act (see Fraser v State of New York, UID No. 2017-040-023 [Ct Cl, McCarthy, J., Feb. 27, 2017]; see also Thomas v State of New York, UID No. 2014-040-042 [Ct Cl, McCarthy, J., July 30, 2014]). In addition, Defendant did not reject and return the Notice of Intention.
The Court has reviewed Defendant's Exhibit D, the pages of Claimant's deposition transcript. Claimant stated that the signature on the second page of the Notice of Intention is not his signature, but the signature on the following page is his (Calabrese Affirmation, Ex. D, p. 61). Defendant submitted the Notice of Intention as Exhibit A. The Court notes that the document consists of three pages. The third page of the document is the "verification page." Claimant stated at the deposition that the signature on that page is his (see Calabrese Affirmation, Ex. D, p. 61). The signature is also notarized. The page contains the statement that the document was "[s]worn to and subscribed before me on the 25th day of October, 2016" and is signed by Carolyn St. Denis, Notary Public, State of New York, qualified in Franklin County (see Calabrese Affirmation, Ex. A, unnumbered p. 3).
Thus, the Court finds and concludes, based upon the information before the Court, that Claimant properly verified his Notice of Intention. Therefore, Defendant's Motion to Dismiss on the basis that the Notice of Intention was not properly verified and did not extend Claimant's time to serve and file a Claim, thereby making Claimant's Claim untimely served and filed, is denied.
November 21, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's Motion to dismiss:
Notice of Motion, Affirmation in Support,
and Exhibits attached 1
Affirmation in Response, Memorandum of
Law, and Exhibits attached 2
Filed Papers: Claim, Answer
1. Claimant testified with the aide of a Spanish/English interpreter.