Opinion
# 2012-048-056 Claim No. 118614 Motion No. M-81486
08-22-2012
MARK POLITE v. STATE OF NEW YORK
Synopsis
The Court dismissed the Claim, concluding that it lacked subject matter jurisdiction over the matter based on Claimant's failure comply with the service requirements of Court of Claims Act § 11 (a) (i). Case information
UID: 2012-048-056 Claimant(s): MARK POLITE Claimant short name: POLITE Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 118614 Motion number(s): M-81486 Cross-motion number(s): Judge: GLEN T. BRUENING Claimant's attorney: MARK POLITE, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York Defendant's attorney: By: Michael Rizzo, Esq. Paul F. Cagino, Esq. Assistant Attorneys General Third-party defendant's attorney: Signature date: August 22, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Mark Polite commenced this action on July 6, 2010 seeking compensation for damages sustained to his personal property, while an inmate at Eastern Correctional Facility in Napanoch, Ulster County, under the supervision of the Department of Correctional Services ("DOCS").Defendant moves for an order dismissing the Claim pursuant to CPLR § 3211 (a) (2) and (8) for lack of personal and subject matter jurisdiction based on Claimant's failure to comply with the service requirements set forth in the Court of Claims Act § 11. Claimant opposes the motion.
DOCS is now known as the Department of Corrections and Community Supervision ("DOCCS") (see L 2011, c 62, pt C, subpt A, § 4, eff. March 31, 2011). Inasmuch as the Claim relates to acts that occurred prior to the name change, this Decision will refer to the Executive Agency by its former name.
The submissions on the Motion establish that, on June 7, 2010, Claimant served a Claim (first Claim) on the Attorney General by certified mail, return receipt requested, bearing certified mail receipt number 7009 1410 0001 3667 1662 (see Affidavit of Janet Barringer, paragraph 5). The first Claim consisted of a one-page document entitled "Claim" together with a three page document entitled "Notice of Intention to File a Claim," which was verified on May 27, 2010(see Affidavit of Janet Barringer, Exhibit 1). The first Claim was not filed with the Court.
The verification attached to the June 7, 2010 mailing does not state the year verified.
By correspondence received by the Attorney General on June 23, 2010, Claimant advised that the Claim served certified mail, return receipt requested was improper and incomplete and requested that it be "[thrown] in the trash" (Affidavit of Janet Barringer, Exhibit 3). However, on June 24, 2010, Defendant served an Answer to the first Claim, which did not raise the jurisdictional affirmative defenses of lack of verification or manner of service (see Affidavit of Janet Barringer, Exhibit 2). On June 25, 2010, Claimant served a document entitled "Notice of Intention" on the Attorney General by certified mail, return receipt requested, bearing certified mail receipt number 7009 1410 0001 3667 1679 (see Affidavit of Janet Barringer, Exhibit 4). On July 2, 2010, Claimant served a Claim (second Claim) on the Attorney General which was filed with the Court on July 6, 2010 (see Affidavit of Janet Barringer, Exhibit 5; Claim, filed July 6, 2010) . The Affidavit of Service filed with the second Claim is sworn to on June 17, 2010, and attests that the "Notice of Intention to File a Claim" was served via certified mail, return receipt requested ("certified mail number 7009 1410 0001 3667 1679") on June 25, 2010 (Claim, filed July 6, 2010; see Affidavit of Paul F. Cagino, Esq., Exhibit A).On July 28, 2010, Defendant served an Answer to the second Claim which raised the jurisdictional affirmative defenses of lack of verification and manner of service.
The Claim served on the Attorney General on July 2, 2010 and filed with the Court on July 6, 2010 is a different document than the document served on the Attorney General on June 7, 2010.
As is relevant to the instant Motion, Court of Claims Act § 11 (a) (i) mandates that a copy of the Claim be served personally or by certified mail, return receipt requested, upon the Attorney General within the applicable time period provided in Section 10 of the Court of Claims Act. Court of Claims Act § 10 (3) mandates that "[a] claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim." Failure to comply with these statutory filing and service requirements "deprives the Court of Claims of subject matter jurisdiction and compels dismissal of the claim" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]). However, any objection or defense based on a Claimant's failure to comply with the time limitations or the manner of service requirements is waived unless specifically raised in the answer or in a pre-answer dismissal motion (see Court of Claims Act § 11[c] [i], [ii]).
In addition, Court of Claims Act § 11 (b) requires that the Claim be "verified in the same manner as a complaint in an action in the supreme court." CPLR § 3020 (a) defines verification as "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 [or she] believes it to be true" (see also CPLR 3021). As articulated by the Court of Appeals, "[b]ecause the Legislature has mandated that verification 'take[ ] place' in the Court of Claims following the same 'method of action' or 'mode of procedure' employed for an action in Supreme Court, there is no basis for treating an unverified or defectively verified claim or notice of intention any differently than an unverified or defectively verified complaint is treated under the CPLR in Supreme Court. Section 11 (b) therefore embraces CPLR 3022's remedy for lapses in verification" (Lepkowski v State of New York, 1 NY3d 201, 210 [2003]). Accordingly, a Defendant may elect to treat an unverified or defectively verified document as a nullity by "giv[ing] notice with due diligence to the attorney of the adverse party that he elects so to do" (CPLR 3022). Failure to notify the adverse party's attorney with due diligence "waives any objection to an absent or defective verification" (Lepkowski v State of New York, 1 NY3d at 210). For actions commenced in the Court of Claims, Court of Claims Act § 11 (c) imposes an additional requirement on Defendant in its attempt to preserve an objection based on a Claimant's failure to comply with the verification requirements of Section 11 (b). Specifically, Court of Claims Act § 11 (c) (iii) provides that an objection or defense to the verification requirement is waived unless specifically raised in the answer or in a pre-answer dismissal motion. Consequently, if a Defendant in the Court of Claims wishes to preserve an objection to a defective or absent verification, it must both "promptly reject the defective document pursuant to CPLR 3022, and then raise the defect upon commencement of the litigation via an answer or motion to dismiss" (Malik v State of New York, Claim No. 112866, Motion Nos. M-72508, M-72690, CM-72566, Hudson, J., page 4 [January 29, 2007], affd 52 AD3d 1235 [4th Dept 2008]; see also Scott v State of New York, 46 AD3d 664, 664-665 [2d Dept 2007]).
In support of its Motion to Dismiss the Claim, defense counsel asserts that the first Claim, served on June 7, 2010, was withdrawn, and that the second Claim, served on July 2, 2010, was both unverified and served by regular mail, thus divesting this Court of personal jurisdiction over the Defendant and subject matter jurisdiction over the Claim. Defense counsel asserts that the Affidavit of Service of the second Claim refers to the service of a Notice of Intention rather than the Claim. Defendant offers a photocopy of the mailing envelope used to mail the second Claim to the Attorney General, which bears a postmark of June 29, 2010 and a date stamp indicating that the document was received by the Attorney General on July 2, 2010 (see Affirmation of Paul F. Cagino, Esq., Exhibit A). That mailing envelope reveals postage in the amount of $.61, with no certified mail or return receipt sticker affixed thereto.
In opposition to Defendant's motion, Claimant does not dispute that the Claim was unverified, and instead addresses the manner of service, contending that a Claim, consisting of six pages, was served via certified mail, return receipt requested. Claimant references certified receipt number 7009 2250 0002 7354 4734 in his letter submitted in opposition to Defendant's Motion. However, the original receipt for certified mailing attached to Claimant's letter bears number 7009 1410 0001 3667 1679.Claimant also submits an original "Disbursement or Refund Request" for certified mailing, return receipt requested, dated June 21, 2010. Claimant further contends that the Affidavit of Service filed with the Claim inadvertently states that a Notice of Intention was served, when it should have stated that a Claim was served.
Claimant did not provide copies of the documents attached to his correspondence submitted in opposition to Defendant's Motion to the Attorney General, including the original receipt for certified mailing bearing number 7009 1410 0001 3667 1679 and a "Disbursement or Refund Request," contending that the photocopy machine at his current facility was broken.
In a reply submission, Defendant submits the Affidavit of Janet Barringer, a Senior Clerk in the Claims Bureau of the Albany Office of the Attorney General, who, after a search of the records of the Office of the Attorney General Claims Bureau, attests, among other things, that Defendant has no record of service under certified mail receipt number 7009 2250 0002 7354 4734.
Initially, the Court finds that Defendant preserved its objection to the manner of service of the Claim in its Answer (see Answer, paragraph 8). However, while the lack of verification of the Claim was raised as an affirmative defense in the Answer (see Answer, paragraph 7), there is no indication that Defendant took any steps pursuant to CPLR 3022 to reject the Claim. Since Defendant did not notify Claimant with due diligence that the Claim had been rejected due to a lack of verification, the Court concludes that any objection to the lack of verification has been waived.
In addressing the merits of Defendant's motion insofar as it pertains to manner of service, based on the undisputed evidence set forth in the record, the Court concludes that the first Claim, served on the Attorney General on June 7, 2010 by certified mail, return receipt requested, was unfiled and then withdrawn by Claimant pursuant to correspondence dated June 23, 2010. The Court notes the Affidavit of Service filed with the second Claim is facially defective as it is sworn to on June 17, 2010 - eight days before Claimant attests that he mailed the "Notice of Intention" (Claim, filed July 6, 2010). Thus, the Court concludes that the Affidavit of Service filed with the second Claim is not entitled to a presumption of proper service (see Kihl v Pfeffer, 94 NY2d 118, 122 [1999]). The Court also notes that the Affidavit of Service filed with the second Claim attests that a "Notice of Intention" was served via certified mail, return receipt requested and provides the certified mailing receipt number 7009 1410 0001 3667 1679 - the same certified mailing receipt number identified on the envelope used to serve the Notice of Intention on the Attorney General on June 25, 2010. In light of the proof before it, the Court concludes that Claimant served a Notice of Intention on the Attorney General on June 25, 2010 via certified mail, return receipt requested, bearing certified mailing receipt 7009 1410 0001 3667 1679. The Court further concludes that the Affidavit of Service filed with the second Claim relates to the Notice of Intention served on June 25, 2010.Significantly, there is no provision under Court of Claims Act § 10 (9) for the service of a Notice of Intention "as a means of extending the time that a claim may be served or filed," and service of Notice of Intention in this action will not serve to cure a defectively served Claim (Spaight v State of New York, 91 AD3d 995, 996 [3d Dept 2012]). Finally, the Court concludes that Claimant served his Claim on the Attorney General by regular mail on July 2, 2010, and thereby failed to comply with Court of Claims Act § 11 (a) (i) (see Femminella v State of New York, 71 AD3d 1319, 1320 [3d Dept 2010]). This deprived the Court of subject matter jurisdiction (see Spaight v State of New York, 91 AD3d at 995). To the extent that Claimant references a certified mailing receipt number 2250 0002 7354 4734, there is no evidence in the record linking this certified mailing receipt number to any document served on the Attorney General.
The second Claim asserts that a Notice of Intention was served on the Attorney General on June 25, 2010 (see Claim, filed July 6, 2010, paragraph 8).
Accordingly, Defendant's Motion No. M-81486 is granted and the Claim is dismissed.
August 22, 2012
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Claim, filed July 6, 2010, with attached Application Pursuant to CPLR 1101 (f) and Affidavit of Service;
Answer, filed June 24, 2010;
Answer, filed July 28, 2010;
Defendant's Notice of Motion, filed May 4, 2012;
Affirmation of Paul F. Cagino, Esq., dated May 4, 2012, with Exhibits A and B;
Correspondence from Mark Polite, dated May 8, 2012, with attachments consisting of original certified mailing receipt bearing number 7009 1410 0001 3667 1679 and Disbursement or Refund Request dated June 21, 2010;
Reply Affirmation of Michael Rizzo, Esq., dated May 21, 2012, with Exhibits A and B (consisting of the Affidavit of Janet Barringer, sworn to on May 21, 2012, with Exhibits 1-6).