Opinion
# 2018-054-119 Claim No. 132047 Motion No. M-93114
01-29-2019
WESLEY KEENE v. THE STATE OF NEW YORK
WESLEY KEENE Pro Se HON. LETITIA JAMES Attorney General for the State of New York By: Belinda Wagner, Assistant Attorney General
Synopsis
State's motion to dismiss granted, claim treated as a nullity, lack of verification.
Case information
| UID: | 2018-054-119 |
| Claimant(s): | WESLEY KEENE |
| Claimant short name: | KEENE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132047 |
| Motion number(s): | M-93114 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | WESLEY KEENE Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Belinda Wagner, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 29, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-2 were read and considered by the Court on the State's motion to dismiss:
Notice of Motion, Attorney's Affirmation in Support and Exhibits.........................1
Claimant's Affidavit/Answer in Opposition..............................................................2
An unverified claim was served on the Attorney General's office on September 27, 2018. The claim was rejected and returned that same day via letter to claimant, advising him that the unverified claim was being treated as a nullity pursuant to CPLR 3022 because the verification had not been signed by claimant (Defendant's Ex. B). On October 11, 2018, claimant served a second unverified claim upon the Attorney General's office. By letter dated October 19, 2018, the State rejected the claim and advised claimant that the unverified claim was being treated as a nullity pursuant to CPLR 3022 because the verification had not been signed by claimant (Defendant's Ex. A). The State now brings this motion to dismiss the claim on jurisdictional grounds due to the lack of a proper verification on either copy of the claims served upon the Attorney General's office. Claimant opposes the motion arguing that the copies of the claim were both properly verified and signed by claimant (Defendant's Exs. A, B).
Upon review of the copies of the claims, the Court finds while the claims are signed by claimant, the verifications are not signed by claimant (Defendant's Ex. A, p 4; Defendant's Ex. B, p 2). Therefore, the State properly rejected both copies of the claim on the ground that "the verification was not signed by the party" (Defendant's Exs. A, B).
Court of Claims Act 11 (b) provides that the "claim . . . shall be verified in the same manner as a complaint in an action in the supreme court." The Court of Appeals has interpreted the provisions of Section 11 (b) as "'substantive conditions upon the State's waiver of sovereign immunity'" (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and instructed that "[t]he failure to satisfy any of the conditions is a jurisdictional defect" (Kolnacki, 8 NY3d at 281).
"Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he gives notice with due diligence to the . . . adverse party that he elects so to do" (CPLR 3022).
The Court finds that the State exercised due diligence in notifying claimant that the State was treating the claims as a nullity for lack of verification, as required by the provisions of CPLR Rule 3022 and Court of Claims Act 11 (b).
Accordingly, the State's motion to dismiss the claim is GRANTED.
January 29, 2019
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims