Opinion
# 2021-032-004 Claim No. 134199 Motion No. M-95224
01-06-2021
VANDA SEWARD v. STATE OF NEW YORK
Vanda Seward, Pro Se Hon. Letitia James, Attorney General By: Anthony Rotondi, AAG
Synopsis
Defendant's motion to dismiss the claim granted. Claim served upon the Attorney General one day late.
Case information
| UID: | 2021-032-004 |
| Claimant(s): | VANDA SEWARD |
| Claimant short name: | SEWARD |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134199 |
| Motion number(s): | M-95224 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Vanda Seward, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Anthony Rotondi, AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 6, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, filed the instant claim with the Clerk of the Court on December 23, 2019. The claim alleges that, in August 2019, the New York City Department of Investigation (NYC DOI) conducted a pre-employment background check on claimant in anticipation of her appointment for the position of Deputy Commissioner for the New York City Police Department (NYPD). On September 24, 2019, claimant received a phone call from NYPD Assistant Commissioner Marisa Caggiano of the Human Resources Division informing claimant that the NYPD was withdrawing its conditional job offer. On September 27, 2019, claimant received a confirmation e-mail from the NYPD restating Caggiano's statement that the NYPD was withdrawing claimant's conditional job offer. Claimant later learned that the New York State Department of Corrections and Community Supervision (DOCCS) had informed the NYC DOI that claimant resigned from her position with DOCCS during an internal investigation of claimant's alleged improper use of a State vehicle for personal reasons. Claimant asserts that the statements made by DOCCS to the NYC DOI were false and misleading, and that as a result of the false and misleading statements, NYPD rescinded the conditional job offer previously offered to claimant. Defendant moves to dismiss the claim on the ground that is untimely.
Claimant served a notice of intention to file a claim upon defendant on December 10, 2019 (Affirmation of Anthony Rotondi, AAG, Ex. A). Defendant rejected the claim because it was unverified (id., Ex. B). 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 supreme court." Verification of a complaint in Supreme Court requires 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 as to those matters he believes it to be true" (CPLR 3020). Where a defendant receives an unverified claim, the defendant is required to "both notify the claimant of its rejection of the unverified claim with due diligence and assert the failure to verify as a defense in the answer or by pre-answer motion to dismiss" (Gillard v State of New York, 28 Misc 3d 1139, 1141 [Ct Cl 2010]). Upon review of the notice of intention to file a claim submitted by defendant in support of the motion, the Court finds that it does not include a verification page. Accordingly, defendant properly rejected the notice of intention to file a claim and the notice of intention to file a claim served by claimant did not extend claimant's time to file a claim in this matter.
Because the notice of intention to file a claim was rejected as a nullity, defendant argues that the claim served upon defendant on December 24, 2019 was untimely. "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept. 2011]; see Court of Claims Act § 10 [3], [3-b]). Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "[A]s suits against defendant are permitted only by virtue of its waiver of sovereign immunity and are in derogation of the common law, the failure to strictly comply with the filing or service provisions of the Court of Claims Act divests the court of subject matter jurisdiction and compels dismissal of the claim" (Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept. 2013] [internal quotation marks and citations omitted]; see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; Rodriguez v State of New York, 307 AD2d 657, 657 [3d Dept. 2003]).
The claim states that, on September 24, 2019, "claimant received a call from the NYPD Assistant Commissioner Marisa Caggiano of Human Resources Division stating that NYPD was withdrawing their conditional job offer" (Verified Claim ¶ 4). The claim further states that, on September 27, 2019, "claimant received a confirmation email from NYPD restating NYPD was withdrawing their conditional job offer for the Deputy Commissioner position" (id. ¶ 5). Although the claim states that the accrual date of the claim is September 27, 2019, defendant argues that the claim accrued on September 24, 2019.
The claim asserts a cause of action sounding in defamation. As claimant was notified of the rescission of the conditional job offer on September 24, 2019, the allegedly false statement was clearly made before that date (see Burdick v State of New York, UID No. 2015-041-055 [Ct Cl, Milano, J., Aug. 31, 2015] [false statement of the claimant's license suspension necessarily made prior to claimant's arrest for driving with a suspended license]). The Court's finding is also supported by the emails attached to claimant's notice of intention to file a claim, in which claimant emails Caggiano on September 23, 2019 asking for an explanation in writing as to why the conditional job offer was rescinded. Also attached to the notice of intention to file a claim is a letter from Alan Lefkof, director of the NYC DOI, to the NYPD Commissioner, dated September 6, 2019, detailing the information that the NYC DOI received from DOCCS regarding claimant's use of a State vehicle. Thus, the accrual date of the claim is necessarily prior to both September 24, 2019, the accrual date argued by defendant, and September 27, 2019, the accrual date argued by claimant.
Utilizing the latest possible date of accrual of September 24, 2019, the claim is untimely as it was served upon the Office of the Attorney General on December 24, 2019, one day after the ninetieth day following the accrual date, which was December 23, 2019 (see Court of Claims Act §10 [3, 3-b]). "The State's waiver of immunity from suits for money damages is not absolute, but rather is contingent upon a claimant's compliance with specific conditions placed on the waiver by the Legislature" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]; see Court of Claims Act § 8; Alston v State of New York, 97 NY2d 159, 163 [2001]). Moreover, "[b]ecause 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" (Matter of New York City Asbestos Litig., 24 NY3d 275, 281 [2014] [internal quotation marks and citations omitted]). Accordingly, because claimant failed to file the claim and serve the claim upon the Attorney General within ninety days of the accrual date, the Court finds that the claim is untimely and must be dismissed.
Based upon the foregoing, defendant's motion to dismiss the claim (M-95224) is GRANTED and claim number 134199 is DISMISSED.
January 6, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Verified Claim, filed on December 23, 2019. 2. Notice of Motion to Dismiss, dated January 29, 2020; and Affirmation in Support of Motion to Dismiss, affirmed by Anthony Rotondi, AAG on January 29, 2020, with Exhibits A through C annexed thereto.