Opinion
# 2015-018-621 Claim No. 122441 Motion No. M-85994
05-29-2015
LINARES v. STATE OF NEW YORK
JORGE L. LINARES Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel
Synopsis
Compliance with both CPLR 3022 and Court of Claims Act section 11 (c) is required to have a claim dismissed for being unverified or having a defective verification. Defendant adequately particularized the defect in full compliance with Court of Claims Act section 11 (c), but did not identify the correct defect with Claimant's verification when it provided its CPLR 3022 notice, making the notice a nullity. The Court will not dismiss the claim. Defendant's motion is DENIED.
Case information
| UID: | 2015-018-621 |
| Claimant(s): | JORGE L. LINARES |
| Claimant short name: | LINARES |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122441 |
| Motion number(s): | M-85994 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | JORGE L. LINARES Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | May 29, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion to dismiss the claim for failure to properly verify the claim. Claimant opposes the motion.
On February 27, 2013, Claimant served upon Defendant a claim seeking damages for loss of personal property, while he was an inmate at Mohawk Correctional Facility, specifically, five pounds of Swiss-American cheese, shipping and handling charges to obtain this item which he alleges was improperly confiscated, and a Master lock. The claim was received by Defendant at the Albany Office of the Attorney General on February 27, 2013, and rejected, treated as a nullity, and returned to Claimant that day. Thereafter, on April 1, 2013, Defendant filed a verified answer raising as its "Third Affirmative Defense" the defective verification.
Court of Claims Act section 11 (b) sets forth the requirements for a claim and states that: "[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court." CPLR 3020 provides that "[a] verification 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 believes it to be true." (CPLR 3020 [a]). CPLR 3022 provides that "[a] defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do." In the Court of Claims, no claim may be dismissed because of the absence of a verification, or a defective verification unless the objection or defense is raised "with particularity" either by a motion to dismiss made before an answer is required to be served or in the responsive pleading (Court of Claims Act § 11 [c]).
Thus, in the Court of Claims, a defendant served with an unverified or defectively verified claim must do two things: (1) give notice of the verification problem to the claimant with due diligence and indicate that it is treating the claim as a nullity, and (2) either move to dismiss the claim for the defective or absent verification, or raise the objection or defense with particularity in its verified answer (Court of Claims Act § 11 [c] and Lepkowski v State of New York, 1 NY3d 201, 210 [2003]; see also Malik v State of New York, Claim No. 112866, Motion Nos. M-72508, M-72690, CM-72566, Hudson, J., page 4 [Jan. 29, 2007], affd 52 AD3d 1235 [4th Dept 2008]).
Here, Defendant promptly rejected the claim and notified Claimant that it was treating the claim as a nullity pursuant to CPLR 3022. However, on the form letter, Defendant checked that the reason for the rejection was because the claim was unverified. This was incorrect. Defendant in its Third Affirmative Defense, properly particularized the problem with the claim as being "defective as it is unverified in that the verification is not notarized."
Claimant alleges that the claim cannot be dismissed because Defendant notified him that the claim was being rejected and treated as a nullity for the wrong reason - that the claim was unverified, when more accurately the verification was defective because it was not notarized. Therefore, Claimant alleges Defendant's motion for dismissal of the claim should be denied because the verification defect was not properly particularized.
In Supreme Court practice, pursuant to CPLR 3022, the notice of rejection and treatment of the claim as a nullity has been held to also require that the specific reason the verification does not comply with CPLR 3020 and 3021 be specifically set forth (Lepkowski, 1 NY3d at 210; Matter of Miller v Board of Assessors, 91 NY2d 82, 88 [1997]; Matter of Steele v State of New York, 19 Misc 3d 766, 768 [Ct Cl 2008]; SLG Graybar v Hannaway Law Offs., 182 Misc 2d 217, 222 [Civ Ct, New York County 1999]; Westchester Life v Westchester Magazine Co., 85 NYS2d 34 [Sup Ct, New York County 1948]; Rosenthal v Cohn, 55 Misc 533, 534 [New York City Ct, 1907]). The failure to specify the reason the verification is defective renders the notice ineffective and results in the same situation as if the claim had not been returned at all (Siegel Practice Commentaries, McKinneys Cons. Laws of NY, Book 7B, CPLR 3022, C3022:2 ["And when the pleading is returned with a defective notice, the situation is the same as if the pleading had not been returned at all."]; see also Flowers v State o f New York, UID No. 2007-028-578 [Ct Cl, Sise, J., Oct. 10, 2007]). If strict compliance is being demanded of the Claimant, then Defendant must also strictly comply with the requirements for notice of the defect and rejection of the claim (Treen Motors Corp., Inc., v Van Pelt, 106 Misc 357, 361 [Sup Ct, Kings County 1919]).
Since both compliance with CPLR 3022 and Court of Claims Act section 11 (c) is required in order to successfully have a claim dismissed for being unverified or having a defective verification, the failure to adequately comply with one requirement dooms Defendant's motion on this issue. Although Defendant adequately particularized the defect in full compliance with Court of Claims Act section 11 (c), it did not identify the correct defect with Claimant's verification when it provided its CPLR 3022 notice, making the notice a nullity. As a result, the Court will not dismiss the claim.
Accordingly, Defendant's motion must be DENIED.
May 29, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affirmation of Thomas Trace, Esquire, of Counsel to the Attorney General, in support, with exhibits attached thereto.
3) Affidavit of Jorge L. Linares, sworn to December 24, 2014, in opposition.