Opinion
# 2018-038-585 Claim No. 130612 Motion No. M-92609
10-24-2018
RALPH HALL v. NEW YORK STATE
Ralph Hall, Pro se BARBARA D. UNDERWOOD, Attorney General of the State of New York By: J. Gardner Ryan, Assistant Attorney General
Synopsis
Claimant's motion to dismiss affirmative defense of lack of verification denied. Claimant did not demonstrate that the defense was without merit as a matter of law.
Case information
| UID: | 2018-038-585 |
| Claimant(s): | RALPH HALL |
| Claimant short name: | HALL |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130612 |
| Motion number(s): | M-92609 |
| Cross-motion number(s): | |
| Judge: | W. Brooks DeBow |
| Claimant's attorney: | Ralph Hall, Pro se |
| Defendant's attorney: | BARBARA D. UNDERWOOD, Attorney General of the State of New York By: J. Gardner Ryan, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 24, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for claimed injuries sustained after having allegedly contracted a flesh-eating virus at Green Haven Correctional Facility. In its answer, one of the affirmative defenses asserted was that the claim was not verified (see Verified Answer, ¶ 2). This Court denied claimant's prior motion, which was construed as a motion to strike defendant's defense of limited liability based upon CPLR 1411 and 1601 (see Hall v New York State, UID No. 2018-038-553 [Ct Cl, DeBow, J., June 19, 2018]). Claimant now moves pursuant to CPLR 3211 for dismissal of the affirmative defense of lack of verification. Defendant opposes the motion.
This claim was filed on November 22, 2017, and the affidavit of service states that the claim was sent to the Attorney General by certified mail, return receipt requested on November 15, 2017. The claim that was filed and served was not verified. By letter dated November 20, 2017, defendant notified claimant pursuant to CPLR 3022 that it is "electing to treat the enclosed document received on today's date as a nullity and is hereby rejecting and returning it to you" because it was unverified (see Ryan Affirmation, ¶ 3; Correspondence of Office of the Attorney General, Albany Claims Bureau, dated Nov. 20, 2017). Under cover letter dated November 27, 2017 that does not reference a claim number, claimant filed and served a verification that was sworn to on November 27, 2017, but which also lacks reference to a claim number, as an " 'Addendum' to initial service" (Hall Correspondence, dated Nov. 27, 2017; Affidavit of Service, sworn to Nov. 27, 2017).
Court of Claims Act § 11 (b) mandates that a claim "shall be verified in the same manner as a complaint in an action in the supreme court," and "where the adverse party is entitled to a verified pleading, he may treat it as a nullity" (CPLR 3022). Here, defendant elected to treat the unverified claim as a nullity by rejecting and returning it to claimant on the same day it was received by the Attorney General, and claimant makes no argument that it did so without due diligence (see id.), or in any other improper manner. Claimant's arguments and assertions regarding defendant's alleged deceptions with respect to the timing of its receipt of the verification are impertinent, for the reasons that follow.
As stated in this Court's prior decision and order in this claim, "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211 (b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications & Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). The movant who seeks dismissal of defenses "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]).
Claimant's submission does not demonstrate that his attempt to revive the null claim by subsequent service of a verification as an addendum to the claim was effective. The requirements of Court of Claims Act § 11 (b) are jurisdictional conditions to lawsuits against the State (see Lepkowski v State of New York, 1 NY3d 201, 206-207 [2003]), and "strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki v State of New York, 8 NY3d 277, 281 [2007]), including verification requirements (see Long v State of New York, 7 NY3d 269, 276 [2006]). Even if claimant were permitted to remedy the lack of a verification by filing an addendum that merely contained a verification ( but see Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009] [jurisdictional defect cannot be cured by addendum]), the verification that was filed and served bears no indicia that it was addressed to this claim. Thus, claimant has not demonstrated that the affirmative defense of lack of verification of the claim is without merit as a matter of law. Accordingly, it is
Claimant's affidavit of service sworn to November 27, 2017 indicates that the claim and application for poor person relief were "resubmitted" with the verification, but the Court has no record of having received a newly filed claim, and claimant does not argue that he filed a new and verified claim.
ORDERED, that motion number M-92609 is DENIED.
October 24, 2018
Saratoga Springs, New York
W. Brooks DeBow
Judge of the Court of Claims Papers considered: (1) Claim No. 130612, filed November 22, 2017; (2) Correspondence of Attorney General, Albany Claims Bureau, dated November 20, 2017; (3) Correspondence of Ralph Hall, dated November 27, 2017 with Verification and Affidavit of Service, both sworn to November 27, 2017; (4) Verified Answer, dated December 11, 2017; (5) Pro-se Claimant's Reply to Defendant's Verified Answer, dated December 14, 2017, with Attachments; (6) [Claimant's] Supplemental Reply, sworn to December 18, 2017; (7) Correspondence of Eileen F. Fazzone, Chief Clerk of the Court of Claims, dated December 27, 2017; (8) Decision and Order, Hall v New York State, UID No. 2018-038-553 (Ct Cl, DeBow, J., June 19, 2018); (9) Notice of Motion, dated July 20, 2018; (10) Affidavit in Support of Motion to Strike Affirmative Defense, sworn to July 20, 2018; (11) Affirmation of J. Gardner Ryan, AAG, dated July 31, 2018; (12) Claimant's Reply to Defendant's Fax Affirmation Dated July 31, 2018, dated August 6, 2018.