New York State Court of Claims

New York State Court of Claims
NUNEZ-PEREZ v. STATE OF NEW YORK, # 2021-054-008, Claim No. 134727, Motion No. M-96154

Synopsis

Order to Show Cause dismissed for lack of jurisdiction.

Case information

UID: 2021-054-008
Claimant(s): BERNARD NUNEZ-PEREZ
Claimant short name: NUNEZ-PEREZ
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 134727
Motion number(s): M-96154
Cross-motion number(s):
Judge: WALTER RIVERA
Claimant's attorney: BERNARD NUNEZ-PEREZ
Pro Se
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
City: White Plains
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

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Governor on March 20, 2020, as extended, tolled the time limitations in the Court of Claims, and was in effect until rescinded on November 4, 2020 (Admin Order of Acting Presiding Judge of CTCL, Sise, J., Nov. 6, 2020).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 [2007], quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), 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

WALTER RIVERA

Judge of the Court of Claims