Order to Show Cause dismissed for lack of jurisdiction.
|Claimant short name:||NUNEZ-PEREZ|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||BERNARD NUNEZ-PEREZ
|Defendant's attorney:||HON. LETITIA JAMES
Attorney General for the State of New York
By: Belinda Wagner, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 22, 2021|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on the State's unopposed motion to dismiss:
Notice of Motion, Attorney's Affirmation in Support and Exhibits
An unverified claim was served on the Attorney General's office on May 1, 2020. By letter dated July 21, 2020, the Attorney General's office advised claimant that the unverified claim was being treated as a nullity pursuant to CPLR 3022 because the verification had not been signed by claimant (State's Ex. A). At that time, in response to the continuing COVID-19 pandemic, Executive Order 202.8, signed by the Governor on March 20, 2020, as extended, tolled the time limitations in the Court of Claims, and was in effect until rescinded on November 4, 2020 (Admin Order of Acting Presiding Judge of CTCL, Sise, J., Nov. 6, 2020). Upon the expiration of the tolling provision, claimant did not serve and file a verified claim. The State now brings this motion to dismiss the claim on jurisdictional grounds due to the lack of a proper verification of the claim served upon the Attorney General's office. Claimant does not submit any opposition to the motion.
Upon review of the copy of the claim, the Court finds that the verification is not signed by claimant (Defendant's Ex. A). Therefore, the State properly rejected the claim on the ground that "the verification is not signed by the party" (State's Ex. A).
Court of Claims Act § 11 (b) provides that the "claim . . . shall be verified in the same manner as a complaint in an action in the supreme court." The Court of Appeals has interpreted the provisions of Section 11 (b) as "substantive conditions upon the State's waiver of sovereign immunity" (Kolnacki v State of New York, 8 NY3d 277, 280-281 , quoting Lepkowski v State of New York, 1 NY3d 201, 207 ), and instructed that "[t]he failure to satisfy any of the conditions is a jurisdictional defect" (Kolnacki, 8 NY3d at 281).
"Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he gives notice with due diligence to the . . . adverse party that he elects so to do" (CPLR 3022).
The Court finds that, in light of the tolling provisions in effect, the State exercised due diligence in notifying claimant that the State was treating the claim as a nullity due to the lack
of a verification signed by claimant, as required by the provisions of CPLR Rule 3022 and Court of Claims Act § 11 (b).
Accordingly, the State's motion to dismiss the claim is GRANTED.
March 22, 2021
White Plains, New York
Judge of the Court of Claims