Opinion
# 2019-028-552 Claim No. 132057 Motion No. M-93142
06-20-2019
STEPHEN JOHN v. THE STATE OF NEW YORK
STEPHEN JOHN, PRO SE HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2019-028-552 |
| Claimant(s): | STEPHEN JOHN |
| Claimant short name: | JOHN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132057 |
| Motion number(s): | M-93142 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | STEPHEN JOHN, PRO SE |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Matthew H. Feinberg, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 20, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on defendant's motion to dismiss:
1-3 Notice of Motion, Affirmation in Support by Matthew H. Feinberg, Assistant Attorney General, Memorandum of Law and attached exhibits
4 Filed paper: Claim
Stephen John, an inmate proceeding pro se, alleges that on or about June 10, 2017 he was assaulted in his cell at Sing Sing Correctional Facility by a correction officer and an inmate, and suffered injury. He also alleges that personnel failed to provide him with timely medical treatment thereafter - he states he was not seen by medical personnel until June 21, 2017 - and that they did not investigate his claim. A notice of intention to file a claim [NI] was served on the Attorney General's office on September 25, 2017. [Feinberg Affirmation, ¶3, Exhibit A]. The claim itself was served on the Attorney General's office on October 1, 2018. [Ibid., ¶4, Exhibit B].
Defendant now moves, by way of pre-answer motion, to dismiss the claim arguing that (1) the NI was untimely, and thus the claim served more then 90 days after it accrued was untimely, and that (2) the claim was defectively verified, and was duly rejected and returned as a nullity.
Claimant has not filed any opposition to the motion.
Both the NI, as well as the claim, should be verified by a claimant in the "same manner as a complaint in an action in the supreme court." Court of Claims Act §11(b). "Verification" is defined in the Civil Practice Law and Rules as "...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 believes it to be true...." Civil Practice Law and Rules § 3020(a).
Further, "...[t]he verification of a pleading shall be made by the affidavit of a party...."
§ 3020(d) Civil Practice Law and Rules. Only certain individuals may affirm the truth of statements in lieu of swearing to their truth before one empowered to take oaths, i.e., a notary. See §§ 2106, 2309 Civil Practice Law and Rules. The verification should provide that "the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true." Civil Practice Law and Rules § 3021.
When the verification is defective, the defendant may reject and return the document, with due diligence, and may treat it as a nullity. Civil Practice Law and Rules § 3022; But, c.f., Matter of Steele v State of New York, 19 Misc3d 766 (Ct Cl 2008). "[I]n order for a rejection to be effective, it must be done with due diligence and the notice of rejection must set forth the reason(s) for deeming the verification defective (citations omitted). 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." Matter of Steele v State of New York, 19 Misc3d at 769.
A claim against the State alleging negligent or intentional acts by its agents must be served and filed within 90 days of its accrual, unless a claimant serves an adequate NI on the defendant within the same time frame, in which case the time within which to serve and file a claim is extended an additional 1 or 2 years from accrual, depending on whether negligence or an intentional tort is involved. Court of Claims Act §§ 10(3), (3-b). A failure to serve the claim during the time period and in the manner required results in a lack of jurisdiction, unless the State has failed to properly plead jurisdictional defenses or raise them by motion. In that case, the defense is waived. Court of Claims Act § 11(c). Service is complete when it is received in the Attorney General's office. Court of Claims Act § 11(a)(i).
"Any objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act, (ii) the manner of service requirements set forth in...[11(a)], or (iii) with the verification requirements as set forth in...[11(b)] and [Civil Practice Law and Rules 3022] is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure."
In this case, the latest date of accrual alleged is June 21, 2017 with regard to medical treatment, while the actual assault is alleged to have occurred on June 10, 2017. To have been timely a claim, or the NI, should have been served by September 19, 2017. The NI served here on September 25, 2017 was therefore untimely, did not extend the time within which claimant could then serve and file his claim, which was thus untimely when it was served and filed on October 1, 2018 [Feinberg Affirmation, ¶4, Exhibit B] and September 27, 2018, respectively.
Additionally, the defendant timely rejected and returned the claim to the defendant on October 1, 2018, advising him that it was being treated as a nullity, because the verification was not notarized. [Feinberg Affirmation, ¶5, Exhibit C].
Based on the foregoing, defendant's motion to dismiss is granted, and Claim No. 132057 is hereby dismissed.
June 20, 2019
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims