Opinion
# 2017-040-112 Claim No. 128622 Motion No. M-90541
08-15-2017
PHILIP HAHN v. THE STATE OF NEW YORK
Philip Hahn, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
State's Motion to dismiss granted as Claim not properly verified.
Case information
| UID: | 2017-040-112 |
| Claimant(s): | PHILIP HAHN |
| Claimant short name: | HAHN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128622 |
| Motion number(s): | M-90541 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Philip Hahn, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 15, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's pre-answer Motion to dismiss the Claim based upon CPLR 3022 and 3211(a)(2) on the grounds it was not verified in accordance with the requirements of Court of Claims Act § 11 (b) is granted. The remainder of the Motion is denied as moot.
The Claim, which was filed by the pro se Claimant with the office of the Clerk of the Court on October 3, 2016, alleges that, on August 8, 2016, Claimant was improperly denied a job with the New York State Department of Transportation, as he is a veteran under New York Law (Claim, ¶¶ 5, 7, 8).
In his affirmation submitted in support of the State's Motion, Defense counsel asserts that, on October 27, 2016, the Attorney General's office received, via certified mail, return receipt requested, a single-page letter with "Claim 128622" handwritten thereon, requesting the Court to consider the letter as a claim for losses incurred as a result of being denied veterans benefits. Attached to the letter was a copy of a document entitled "Summons & Complaint" that was filed in the New York County Supreme Court, Index No. 100222/2016 (see Affirmation of Paul F. Cagino, Esq., Assistant Attorney General [hereinafter, "Cagino Affirmation"], ¶ 3 and Ex. A attached to Cagino Affirmation).
Counsel further asserts that service of the letter/claim was rejected and it was promptly returned to Claimant because it was not verified in accordance with Court of Claims Act § 11(b) (see CPLR § 3020). A copy of the rejection letter is attached to the Cagino Affirmation as a part of Exhibit A. Defendant rejected the Claim as unverified and returned it to Claimant the same day on which it was received, October 27, 2016 (Cagino Affirmation, ¶ 4 and Ex. A, unnumbered p. 1 attached to Cagino Affirmation).
Verification of a complaint in Supreme Court "is a statement under oath that the pleading is true to the knowledge of the deponent, except as to matters alleged on information and belief, and that as to those matters he [or she] believes it to be true" (CPLR § 3020). CPLR 3022 provides that "when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient 'with due diligence' returns the pleading with notification of the reason(s) for deeming the verification defective" (Lepkowski v State of New York, 1 NY3d 201, 210 [2003]; citing Matter of Miller v Board of Assessors, 91 NY2d 82, 86 [1997]).
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, supra at 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.).
In this instance, the unverified Claim was returned to Claimant on the same day it was received by the Attorney General with explicit notification of the reason therefor (improper verification). The notice of the objection must state the defects relied upon with sufficient specificity that the party whose pleading is rejected has a reasonable opportunity to cure the defect (Steele v State of New York, 19 Misc 3d 766, 769 [Ct Cl 2008]; SLG Graybar v Hannaway Law Offs., 182 Misc 2d 217, 222 [Civ Ct, New York County, 1999]; Westchester Life v Westchester Mag. Co., 85 NYS2d 34 [Sup Ct, New York County, 1948]). The sufficiency with which Defendant specified its objection is evidenced by the fact that Claimant sent a letter to the Attorney General's Office (and provided a copy to the Court) dated November 2, 2016 wherein he thanks the Attorney General for the letter of October 27, 2016, as he " was wondering what 'verified' meant" in the Court of Claims Act. Claimant asserts in the letter "that there is nothing that requires a verified [C]laim or [N]otice of [I]ntention to [F]ile a [C]laim to be filed with the Attorney General." He concludes that his "failure to have [his] [C]laim verified is not fatal" to his action. On these points, Claimant is in error.
Thus, as Defendant has established that the Claim herein was unverified as required by Court of Claims Act § 11(b), Defendant's Motion to dismiss is granted.
August 15, 2017
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: Papers Numbered Notice of Motion, Affirmation in Support and Exhibits Attached 1 Claimant's letter dated November 2, 2016 Addressed to Attorney General 2 Claimant's Letter dated June 9, 2017 Addressed to the Court 3 Filed Papers: Claim