Opinion
# 2017-040-117 Claim No. 125040 Motion No. M-90221
09-11-2017
In the Matter of TERRENCE BUCKLEY v. THE STATE OF NEW YORK
Terrence Buckley, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney
Synopsis
Motion to dismiss on the basis that Claimant failed to comply with service and verification requirements of the Court of Claims Act granted.
Case information
| UID: | 2017-040-117 |
| Claimant(s): | In the Matter of TERRENCE BUCKLEY |
| Claimant short name: | BUCKLEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125040 |
| Motion number(s): | M-90221 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Terrence Buckley, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | September 11, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion to dismiss the Claim based upon lack of subject matter and personal jurisdiction pursuant to CPLR 3211(a)(2) and (8) for failure to comply with the service and verification requirements of Court of Claims Act § 11 is granted.
This pro se Claim, which was filed with the office of the Clerk of the Court on September 26, 2014, asserts that, while incarcerated at Marcy Correctional Facility, on November 8, 2013, Claimant was assaulted by another inmate because of the negligence of prison staff to properly supervise the inmates.
Defendant seeks dismissal of the Claim on the basis that Claimant failed to serve the Claim upon Defendant in the manner required by Court of Claims Act § 11(a)(i) (Affirmation of Thomas Trace, Esq., Senior Attorney [hereinafter, "Trace Affirmation"], ¶ 4). As pertinent to the instant matter, Court of Claims Act § 11(a)(i) provides that the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the time period provided in Court of Claims Act § 10(3).
In his affirmation submitted in support of the Motion, Defense counsel asserts that, on December 12, 2013, Claimant served a Notice of Intention to File a Claim upon the Attorney General by certified mail, return receipt requested (Trace Affirmation, ¶¶ 2, 3, and Ex. A attached thereto). Defendant further asserts that, on September 26, 2014, Claimant served a Claim upon the Attorney General by regular mail (id, ¶¶ 2, 3, 4, and Exs. B, C attached thereto). In reviewing Exhibit C, which is a photocopy of the front and back of the envelope in which the Claim was purportedly mailed, the Court notes that the postage amounted to $.69 and that there is no certified mail or return receipt sticker affixed to either the front or the back of the envelope. Further, Defendant asserts that, on October 28, 2014, it served a Verified Answer upon Claimant and raised as the second affirmative defense that the Court lacks personal jurisdiction over the Defendant and subject matter jurisdiction over the Claim as the Claim was served by regular mail and not in accordance with Court of Claims Act § 11(a)(i) (id., ¶¶ 4, 5). Thereafter, on December 2, 2014, Defendant received by certified mail, return receipt requested, a new Claim. The Attorney General's Office elected to treat that document as a nullity pursuant to the provisions of CPLR 3022 since it was unverified. The Claim was returned to Claimant on December 3, 2014 (Trace Affirmation, ¶ 5 and Ex. E attached thereto). Defendant then served and filed an Amended Answer on December 22, 2014 (id., ¶ 6 and Ex. F attached thereto). The Amended Answer raised the same Affirmative Defenses as the first Answer, and also asserted as its Third Affirmative Defense, that the Claim was defective since it was unverified as required by Court of Claims Act § 11(b), and it was rejected as a nullity on December 3, 2014, within one day of when it was received by the Attorney General on December 2, 2014 (id.). On December 15, 2014, a purported Verification was received by the Attorney General by regular mail (Trace Affirmation, ¶ 7 and Ex. G attached thereto).
This Motion was originally returnable on May 10, 2017, but was adjourned, by the Court at Claimant's request, to July 26, 2017, with Claimant's opposition papers to be served and filed on or before July 19, 2017. However, Claimant did not submit any opposition papers.
The failure to properly serve the Attorney General gives rise to a defect in jurisdiction, which, if not raised with particularity, is subject to the waiver provisions of Court of Claims Act § 11(c) (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 723 [1989]; Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]; Suarez v State of New York, 193 AD2d 1037, 1038 [3d Dept 1993]; Knight v State of New York, 177 Misc 2d 181, 183 [Ct Cl 1998]).
Section 11 of the Court of Claims Act constitutes a jurisdictional prerequisite to the institution and maintenance of a claim against the State and, thus, must be strictly construed (Buckles v State of New York, 221 NY 418 [1917]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Byrne v State of New York, 104 AD2d 782 [2d Dept 1984], appeal denied 64 NY2d 607 [1985]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). Defendant timely and properly raised, with particularity in its Answer dated October 28, 2014, as its Second Affirmative Defense, and in its Amended Answer dated December 22, 2014, also as its Second Affirmative Defense, that the Claim was served by regular mail, and not served personally or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a)(i). Therefore, the Court concludes that Defendant established that the Claim served upon Defendant on September 26, 2014 was improperly served upon it.
The Court now addresses the Claim served upon Defendant on December 2, 2014, which Defendant rejected as unverified and returned to Claimant on December 3, 2014 (Trace Affirmation, ¶ 5 and Ex. E attached thereto). Defendant then served and filed an Amended Answer on December 22, 2014, wherein it raised as its Third Affirmative Defense that "the Claim is defective as it is unverified as required by Court of Claims Act § 11 (b) and it was rejected as a nullity on December 3, 2014, within one day of when it was received by the [Defendant] … ." 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]).
The failure to satisfy a pleading requirement of Court of Claims Act § 11(b) constitutes a jurisdictional defect that requires dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Finnerty v New York State Thruway Auth., supra at 722). 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." Verification of a complaint in supreme court requires 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 as to those matters he [or she] believes them to be true" (CPLR 3020). In order to avert waiver of an objection to an unverified or improperly verified claim under Court of Claims Act § 11(c)(iii), Defendant is required both to notify Claimant of the asserted defect with due diligence, and to raise its objection either in a pre-Answer motion to dismiss, or as an affirmative defense in its Answer (Gillard v State of New York (28 Misc 3d 1139, 1142 [Ct Cl 2010]; see Torres v State of New York, UID No. 2016-030-618 [Ct Cl, Scuccimarra, J., Dec. 6, 2016]; Lee v State of New York, UID No. 2016-015-172 [Ct Cl, Collins, J., Oct. 27, 2016]). Here, Defendant followed those steps. It returned the unverified Claim to Claimant one day after it was received, together with a notice of the nature of the defect, and timely raised its objection in the Amended Answer.
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 Misc 3d 766, 769 [Ct Cl 2008]; SLG Graybar v Hannaway Law Offs., 182 Misc 2d 217, 222 [Civ Ct, NY County, 1999]; Westchester Life v Westchester Mag. Co., 85 NYS2d 34 [Sup Ct, NY County, 1948]). The sufficiency with which Defendant specified its objection is evidenced by the fact that Claimant sent, by regular mail, a verification page for the Claim, that was received by the Attorney General on December 15, 2014 (Trace Affirmation, ¶ 7 and Ex. G attached thereto). The verification page was received by the office of the Clerk of the Court on the same date. The Court notes that a Claimant cannot avoid a verification defect in a Claim by an improper method of service (Newman v State of New York, 5 Misc3d 640, 642 [Ct Cl, 2004]; Mattaway v State of New York, UID No. 2016-049-017 [Ct Cl, Weinstein, J., Apr. 25, 2016]). As stated above, service by regular mail is not an accepted method of service pursuant to Court of Claims Act § 11(a)(i).
In addition, Claimant's attempt to add the verification to the filed Claim is, in essence, an attempt to amend the Claim to cure a jurisdictional defect. As noted by the Appellate Division, Third Department, in Hogan v State of New York (59 AD3d 754, 755 [3d Dept 2009]) "a jurisdictionally defective claim cannot be cured through an amendment" (see also Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010]; Manshul Constr. Co. v State Ins. Fund, 118 AD2d 983, 985 [3d Dept 1986]).
As Claimant failed to properly serve a verified Claim within the time period as required by Court of Claims Act § 10(3), Defendant's Motion to dismiss is granted and the Claim is dismissed.
September 11, 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 for dismissal: Papers Numbered Notice of Motion, Affirmation, and Exhibits Attached 1 Papers filed: Claim, Answer, Amended Answer