Opinion
# 2013-040-017 Claim No. 121587 Motion No. M-82372 Motion No. M-82447 Cross-Motion No. CM-82374
03-07-2013
DAVID A. O'KANE v. THE STATE OF NEW YORK
Synopsis
Claimant's motion to strike denied. State's cross-motion to dismiss granted.
Case information
UID: 2013-040-017 DAVID A. O'KANE Claimant(s): 04A3962 Claimant short name: O'KANE Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant Caption amended to reflect the State of New York as name) : the proper defendant. Third-party claimant(s): Third-party defendant (s): Claim number(s): 121587 Motion number(s): M-82372, M-82447 Cross-motion number(s): CM-82374 Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: David A. O'Kane, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG Third-party defendant's attorney: Signature date: March 7, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Claimant's Motion Nos. M-82372 and M-82447 are denied and the State's cross-motion for dismissal (CM-82374) is granted.
The Claim was filed with the Clerk on August 3, 2012 and alleges that the State was negligent in computing Claimant's release date from prison. The Claim was served upon Defendant on August 2, 2012. It appears that the Claim that was served was not verified.
Claimant's first motion (M-82372) seeks to strike the State's Answer to the Claim and the Answer to the Amended Claim that was filed with the Clerk of the Court on October 18, 2012. It appears that Claimant re-served a copy of the Claim upon Defendant on September 21, 2012. However, no Amended Claim was filed with the Court. That being the case, the Answer to the Amended Claim is superfluous at this point in time. Claimant's motion to strike the Answer to the Amended Claim is denied as moot.
The Court will now address that portion of the motion which seeks to strike the Answer to the Claim. The State's Answer to the Claim, which was filed with the Clerk of the Court on September 12, 2012, denies knowledge or information sufficient to form a belief as to the majority of the allegations contained in the Claim and denies the remainder of the allegations. The State also asserts 14 affirmative defenses in its Answer.
CPLR 3018 relates to responsive pleadings. Subdivision (a) refers to denials and states that "[a] party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial."
According to Professor Patrick M. Connors, when an allegation is denied, the allegation must be proved by the party pleading it (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:2, at 299). The burden is thus upon Claimant to establish the allegations that were denied in the State's answer.
A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994], quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]; Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
The Court has reviewed the 14 affirmative defenses raised by Defendant. Each defense must stand pending a factual determination of the issue raised in each defense. Claimant's motion to strike the Answer, therefore, is denied.
The Court will now address Defendant's cross-motion (CM-82374) to dismiss on the basis that the Claim is not verified. The State's motion seeks dismissal on the basis that the Court lacks personal jurisdiction and subject matter jurisdiction over the Claim. In support of Defendant's motion, Defense counsel asserts that Claimant's Claim was not properly verified in accordance with Court of Claims Act § 11 and must be dismissed. 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]). Defense counsel asserts Defendant rejected the Claim as improperly verified and returned it to Claimant the same day on which it was received, August 2, 2012 (Krenrich Affirmation in Support, ¶¶ 7 and 8; see Ex. B attached to Motion).
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., 75 NY2d 721, 722 [1989]). 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." The Court of Appeals has declared that the language means precisely what it says and, thus, "embraces CPLR 3022's remedy for lapses in verification" (Lepkowski v State of New York, supra at 210). Thus, the sufficiency of Claimant's verification and Defendant's rejection at issue in this Claim must be evaluated in the same manner as they would be in any other court where practice is governed by the CPLR. "A defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification" (Lepkowski v State of New York, supra at 210).
In this instance, the unverified Claim was returned to Claimant on the same day it was received by the Attorney General with explicit notification of the reason therefor (it was unverified). 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 re-served a Claim upon Defendant on September 21, 2012, which the State deemed to be an Amended Claim and which it responded to by means of an Amended Answer (Krenrich Affirmation in Support, ¶¶ 10 and 11). Claimant also made a motion to amend the Claim (M-82447).
Defendant correctly asserts that the failure to verify a pleading is a jurisdictional defect, which is a defect that cannot be cured by amendment (see Manshul Construction Corp. v State Insurance Fund, 118 AD2d 983, 985 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383, 385 [Ct Cl 1994]; Flemming v State of New York, UID No. 2012-038-564 [Ct Cl, DeBow, J., Sept. 25, 2012]). However, it has also been held that, where a Claimant files a properly verified Claim with the Court but serves upon Defendant an unverified or improperly verified Claim, the Claimant may cure such defect by serving a verified Claim within the applicable time period contained in Section 10 of the Court of Claims Act (Newman v State of New York, 5 Misc 3d 640 [Ct Cl 2004]; Cornwall v State of New York, UID No. 2010-015-186 [Ct Cl, Collins, J., Oct. 28, 2010]; see Givens v State of New York, UID No. 2005-028-557 [Ct Cl, Sise, J., Aug. 2, 2005]). Such curative action is not considered to be the service of an amended Claim.
Here, the Claim that was filed with the Clerk of the Court on August 3, 2012 is properly verified. Claimant re-served Defendant with a copy of a verified Claim on September 21, 2012. The State's motion to dismiss is premised upon the fact that Claimant's Claim is a nullity as it was not properly verified and the State's fifth affirmative defense stated in the Answer (Krenrich Affirmation, ¶ 14). The fifth affirmative defense asserts that the Court lacks jurisdiction over the Claim as Claimant failed to timely and properly serve the Claim upon Defendant. Thus, the issue to be addressed is whether Claimant's service of the verified Claim on September 21, 2012 was within the applicable time period contained in Section 10 of the Court of Claims Act. Claimant asserts in ¶ 8 of his Claim that the Claim accrued on an unspecified date in 2006. Claimant also asserts that he served a Notice of Intention to File a Claim upon the Defendant on July 19, 2012 (Claim, ¶ 12). In that document, he also asserts that his Claim accrued in 2006 (Notice of Intention, ¶ 5).
Pursuant to the Court of Claims Act provisions applicable to personal injury actions, Claimant was required to file and serve his Claim within 90 days from the date of accrual unless a written Notice of Intention to File a Claim was served upon the Attorney General within such time period. In that case, the Claim itself was required to be filed and served upon the Attorney General within two years after the accrual of the Claim (Court of Claims Act § 10[3]).
Court of Claims Act § 10 is more than a statute of limitations; it is a jurisdictional prerequisite to bringing and maintaining an action in this Court (Mallory v State of New York, 196 AD2d 925, 926 [3d Dept 1993]; DeMarco v State of New York, 43 AD2d 786 [4th Dept 1973], affd 37 NY2d 735 [1975]; Antoine v State of New York, 103 Misc 2d 664 [Ct Cl 1980]). Failure to timely comply with the statutory service and filing requirements of the Court of Claims Act constitutes a fatal jurisdictional defect requiring dismissal (Lyles v State of New York, 3 NY3d 396, 400-401 [2004]; Buckles v State of New York, 221 NY 418 [1917]; Langner v State of New York, 65 AD3d 780, 781 [3d Dept 2009]; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]). The Court cannot waive a defect in jurisdiction that has been timely raised (see Thomas v State of New York, 144 AD2d 882 [3d Dept 1988]). The defect asserted was timely and properly raised with particularity in the State's Answer as its fifth defense, in accordance with Court of Claims Act § 11(c) (Czynski v State of New York, 53 AD3d 881, 882 [3d Dept 2008], lv denied 11 NY3d 715 [2009]; Villa v State of New York, 228 AD2d 930, 931 [3d Dept 1996], lv denied 88 NY2d 815 [1996]).
As Claimant failed to timely file and 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.
Claimant's second motion (M-82447) seeks to amend the Claim and seeks discovery from Defendant. As discussed above, the failure to verify a pleading is a jurisdictional defect, which is a defect that cannot be cured by amendment (see Manshul Construction Corp. v State Insurance Fund, 118 AD2d 983, 985 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383, 385 [Ct Cl 1994]; Flemming v State of New York, UID No. 2012-038-564 [Ct Cl, DeBow, J., Sept. 25, 2012]). As the Claim has been dismissed and the motion to amend the Claim denied, Claimant's request to compel discovery is denied as moot.
March 7, 2013
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read on Claimant's motions and the State's cross-motion:
Papers Numbered
Motion No. M-82372
Claimant's Motion with Exhibits attached 1
Motion No. CM-82374
Notice of Cross-Motion, Affirmation in Opposition to Motion No. M-82372 & in Support of Cross-Motion 2 Claimant's Letter in Opposition 3
Motion No. M-82447
Claimant's Motion with Exhibits attached 4 Filed Papers: Claim, Answer, Answer to Amended Claim