Opinion
# 2015-047-119 Claim No. 125150 Motion No. M-86291
06-25-2015
ALICE LOPEZ, as Administrator of the Estate of WILLIAM LOPEZ v. THE STATE OF NEW YORK
Law Offices of Dennis J. Kelly, P.C. By: Dennis J. Kelly, Esq. Of Counsel Eric T. Schneiderman, Attorney General of the State of New York By: Robert J. Schwerdt, AAG
Synopsis
The State of New York moved to dismiss the claim of Alice Lopez (Lopez), filed on behalf of decedent William Lopez (William), on the ground that the claim was jurisdictionally defective, as the claim was not verified by William. Since it would be inconsistent with the Legislature's stated intent of providing "innocent persons who have been wrongly convicted of crimes and subsequently imprisoned" with "an available avenue of redress over and above the existing tort remedies" to interpret Section 8-b to prohibit claims from being brought on behalf of an unjustly convicted decedent, the motion to dismiss was denied.
Case information
| UID: | 2015-047-119 |
| Claimant(s): | ALICE LOPEZ, as Administrator of the Estate of WILLIAM LOPEZ |
| Claimant short name: | LOPEZ |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125150 |
| Motion number(s): | M-86291 |
| Cross-motion number(s): | |
| Judge: | O. PETER SHERWOOD |
| Claimant's attorney: | Law Offices of Dennis J. Kelly, P.C. By: Dennis J. Kelly, Esq. Of Counsel |
| Defendant's attorney: | Eric T. Schneiderman, Attorney General of the State of New York By: Robert J. Schwerdt, AAG |
| Third-party defendant's attorney: | |
| Signature date: | June 25, 2015 |
| City: | New York |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Alice Lopez (Lopez) filed the instant claim on behalf of William Lopez (William) on October 22, 2014. On February 11, 2015, the defendant, the State of New York, filed a motion to dismiss on the ground that the claim was jurisdictionally defective, as the claim was not verified by William (M-86291). Lopez opposed the motion.
In connection with these motions, the court read and considered the Verified Claim (NYSCEF Doc. No. 1), the Notice of Motion (NYSCEF Doc. No. 21), the Affirmation in Support (NYSCEF Doc. No. 22), the Affirmation in Opposition to Motion to Dismiss (NYSCEF Doc. No. 27), the Reply Affirmation in Support of the Motion to Dismiss (NYSCEF Doc. No. 36), and exhibits attached to the above mentioned documents.
Claimant Lopez brings this claim for unjust conviction pursuant to Section 8-b of the Court of Claims Act, on behalf of her deceased husband, William. William was convicted of shooting and killing a drug dealer and sentenced to twenty-five years to life in prison. After serving approximately 23.5 years of his sentence, William's petition for a Writ of Habeas Corpus was granted by the United States District Court for the Eastern District of New York, which noted:
"in the court's view[,] Lopez has been wronged by the State of New York. This wrongdoing has ranged from an overzealous and deceitful trial prosecutor; to a series of indolent and ill-prepared defense attorneys; to a bewildering jury verdict; and to the incomprehensible Justice Demarest, who so regrettably failed time and time again to give meaningful consideration to the host of powerful arguments Lopez presented to her. The result is that a likely innocent man has been in prison for over twenty-three years. He should be released with the State's apology"
(Memorandum and Order, Lopez v Miller, US Dist Ct, ED NY, 02 cv 3988, Garaufis, J., Jan. 16, 2013, attached as Exhibit G to Aff in Opp, NYSCEF Doc No. 34). William died less than two years later, on September 20, 2014. The New York State Surrogate's Court named Lopez the Administrator of William's estate. She filed this claim approximately a month after his death. The State now moves to dismiss on the grounds that the claim is jurisdictionally defective as William did not personally verify the claim, arguing, therefore, that the "condition precedent to the State's waiver of sovereign immunity" stated in Court of Claims Act, Section 8-b, has not been met (Schwerdt Aff, ¶ 8).
Section 8-b(4) of the Court of Claims Act requires that "[t]he claim shall be verified by the claimant." The State argues that Lopez's verification is insufficient. To the contrary, Lopez is the claimant in this action (see Livingston v State of New York, 229 AD2d 477, 478 [2d Dept 1996] [distinguishing between decedent, who allegedly had been wrongfully convicted, and claimant, the executrix of decedent's estate]; Johnson v State of New York, 155 Misc 2d 537, 538 n 1 [Ct Cl 1992][similar]). In the cases cited by the State, claims were dismissed because the claims were signed by the claimants' counsel, rather than the claimants (Santos v State of New York, UID No. 2010-016-051 [Ct Cl, Marin, J., July 28, 2010] affd, 92 AD3d 590 [1st Dept 2012]; Taylor v State of New York, UID No. 2005-028-527 [Ct Cl, Sise, J., April 5, 2005] affd, 33 AD3d 438 [1st Dept 2006]). Here, the claimant personally signed the verification. Accordingly, Lopez's signature satisfies the requirement that the "claim shall be verified by the claimant" (Court of Claims Act, § 8-b[4]).
The State also argues that Section 8-b does not provide for a claim to be initially brought on a deceased convicted person's behalf, rather than by the convicted person, directly. The State points to Section 8-b(2), which allows a claim for unjust conviction and imprisonment to be brought by "[a]ny person convicted and subsequently imprisoned for one or more felonies or misdemeanors against the state which he did not commit." In both Livingston and Johnson, above, the convicted individual began the action and made the initial verified claim, with the administratrix or executrix stepping in after the original claimant's death. While the State concedes that, in the event of the convicted person's death mid-litigation, an administrator or executor can continue to prosecute the claim, the State claims that the claim cannot initially be brought on a decedent's behalf.
"Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Lichtenstein v State of New York, 93 NY2d 911, 913 [1999], quoting Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). "When presented with an issue of statutory interpretation, the court's primary consideration 'is to ascertain and give effect to the intention of the Legislature'" (Long v State of New York, 7 NY3d 269, 273 [2006] quoting Riley v County of Broome, 95 NY2d 455, 463 [2000] [internal quotation marks and citation omitted]). Although statutes should be interpreted according to their plain meaning, "it is well settled that courts should construe them to avoid objectionable, unreasonable or absurd consequences (Long, 7 NY3d at 273, citing People v Santi, 3 NY3d 234, 242 [2004]; Matter of ATM One v Landaverde, 2 NY3d 472, 477 [2004]; McKinney's Cons Laws of NY, Book 1, Statutes §§ 141, 143).
The language of Section 8-b(2) is ambiguous as to whether a claim may be initiated on behalf of a decedent "person convicted." The Legislature did provide some statements explaining its intent in creating this remedy, acknowledging that:
"innocent persons who have been wrongly convicted of crimes and subsequently imprisoned have been frustrated in seeking legal redress due to a variety of substantive and technical obstacles in the law and that such persons should have an available avenue of redress over and above the existing tort remedies to seek compensation for damages. The legislature intends . . . that those innocent persons . . . be able to recover damages against the state. [I]t is the intent of the legislature that the court, in exercising its discretion as permitted by law regarding the weight and admissibility of evidence . . . shall, in the interest of justice, give due consideration to difficulties of proof caused by the passage of time, the death or unavailability of witnesses, the destruction of evidence or other factors not caused by such persons or those acting on their behalf"
(Court of Claims Act § 8-b[1]).
The Legislature recognized the issues created by the passage of time, including even the death of the wrongfully convicted, and asked the courts to use their discretion to "give due consideration to difficulties of proof caused by the passage of time, [and] the death or unavailability of witnesses" (id.). It would be inconsistent with the Legislature's stated intent of providing "innocent persons who have been wrongly convicted of crimes and subsequently imprisoned" with "an available avenue of redress over and above the existing tort remedies" to interpret Section 8-b to prohibit claims from being brought on behalf of an unjustly convicted decedent.
Accordingly, it is
ORDERED, that motion number M-86291, seeking dismissal of the claim as jurisdictionally defective, is DENIED.
June 25, 2015
New York, New York
O. PETER SHERWOOD
Judge of the Court of Claims