Opinion
# 2015-018-630 Claim No. 119618 Motion No. M-86140
07-23-2015
SHAUN PORTER v. STATE OF NEW YORK
No Appearance ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General
Synopsis
Failure to properly verify a claim, where defendant has properly rejected it pursuant to CPLR 3022 and raised the objection in answer, renders claim jurisdictionally defective. Claim is DISMISSED.
Case information
| UID: | 2015-018-630 |
| Claimant(s): | SHAUN PORTER |
| Claimant short name: | PORTER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119618 |
| Motion number(s): | M-86140 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | No Appearance |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: G. Lawrence Dillon, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 23, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a motion to dismiss the claim asserting that the Court lacks personal and subject matter jurisdiction (CPLR 3211 [a] [7] and [8]) for failure to serve a properly verified notice of intention and claim. Claimant has not responded to the motion.
On February 25, 2011, Defendant received a notice of intention to file a claim. Upon receipt of the notice of intention, the Albany Claims Bureau of the New York State Attorney General's Office rejected it and sent it back to Claimant with notice advising him that it was treating the notice of intention as a nullity because the verification was not notarized.
On April 27, 2011, Claimant served the Defendant with a claim. Upon receipt of the claim, by letter of the same date, the Albany Claims Bureau notified Claimant that it was treating the claim as a nullity and returning it to him because the verification was not notarized. In addition, the Defendant interposed an answer to the claim in which it asserted as an affirmative defense that the claim is defective because it was unverified.
The Court of Claims Act section 11 [b] provides that both a notice of intention and a claim "shall be verified in the same manner as a complaint in an action in the supreme court." (Court of Claims Act § 11 [b]). To be properly verified in supreme court, a document must contain a statement made under oath attesting 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 believes it to be true." (CPLR 3020 [a]). A defectively verified pleading is treated as an unverified pleading, and it may be treated as a nullity by the adverse party entitled to a verified pleading as long as he "gives notice with due diligence" to the party serving the pleading that he is electing to treat it in this way (CPLR 3022).
Amid some confusion over what a party must do in the Court of Claims if served with an unverified or defectively verified pleading, the Court of Appeals in Lepkowski v State of New York, 1 NY3d 201 [2003], made clear that the State, like any defendant in Supreme Court, must comply with CPLR 3022 and notify the adverse party, or if represented, his attorney, with due diligence of its intent to treat the pleading as a nullity. Thereafter, the legislature amended section 11, subdivision (c) of the Court of Claims Act in 2005, to also provide that any objection to the verification of a pleading must be raised by a motion to dismiss or in the responsive pleading with particularity or it is waived (Court of Claims Act § 11 [c], as amended by L 2005, ch. 460, and L 2007, ch. 223). Thus, both actions are now required of a party seeking to object to the verification of a pleading in the Court of Claims, based upon the decisional and statutory law.
(Court of Claims Act § 11 [c]; Lepkowski, 1 NY3d at 209-210;Gillard v State of New York, 28 Misc 3d 1139, 1142 [Ct Cl 2010]; Rodriguez v State of New York, UID No. 2013-015-434 [Ct Cl, Collins, J., June 26, 2013]).
Here, in accordance with CPLR 3022, Defendant notified Claimant that it was rejecting the notice of intention because the verification was not notarized and also timely notified Claimant that it was treating the claim as a nullity for the same reason. Defendant also raised the objection to the verification of the claim in the State's verified answer.
Claimant has not served a properly verified claim upon Defendant. In fact, Claimant has taken no action on this claim since it was filed on March 18, 2011, and did not respond to this motion.
The failure to properly verify the claim, where defendant has properly rejected it in accordance with CPLR 3022, and raised the objection in its verified answer, renders the claim jurisdictionally defective and subject to dismissal (see Spirles v State of New York, 28 AD3d 952 [3d Dept 2006]).
Based upon the foregoing, Defendant's motion is GRANTED and the claim is DISMISSED.
July 23, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of G. Lawrence Dillon, Esquire, Assistant Attorney General, in support, with exhibits attached thereto.