Opinion
# 2013-038-538 Claim No. 122550 Motion No. M-83331
06-28-2013
DOROTHY STOOPS v. THE STATE OF NEW YORK
Synopsis
Defendant's motion to dismiss unverified claim granted. Defendant demonstrated that it rejected unverified claim on the business day following the day the claim was served, and its objection or defense to the unverified claim was asserted with particularity in a motion to dismiss that was made prior to time for defendant's answer.
Case information
UID: 2013-038-538 Claimant(s): DOROTHY STOOPS Claimant short name: STOOPS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 122550 Motion number(s): M-83331 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's attorney: DOROTHY STOOPS, Pro se ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Belinda Wagner, Assistant Attorney General Third-party defendant's attorney: Signature date: June 28, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In this claim filed on March 25, 2013, claimant alleges that in 1971, her parents forced her to have an abortion in Rochester, New York. The claim alleges that New York State Legislature's 1970 legalization of abortion without requiring a hearing was unconstitutional because it resulted in the denial of her unborn child's due process rights. Defendant makes this pre-answer motion to dismiss the claim, and claimant has filed documents in response to defendant's motion.
Defendant's primary argument in support of dismissal is that the claim is unverified (see Wagner Affirmation, ¶¶ 3; 10). Court of Claims Act § 11 (b) states that the claim "shall be verified in the same manner as a complaint in an action in the supreme court." When an unverified claim is served, the defendant must act in accordance with CPLR 3022 (see Lepkowski v State of New York, 1 NY3d 201, 210 [2003]). CPLR 3022 states that the recipient of an unverified pleading "may treat it as a nullity, provided [defendant] gives notice with due diligence to the attorney of the adverse party that [defendant] elects so to do." The Court of Claims Act provides that an objection or defense based on the failure to properly verify the claim "is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading" (Court of Claims Act § 11 [c]). Thus, if the State seeks dismissal of a claim due to an 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, Court of Claims, Claim No. 112866, unreported decision, at p. 4 [Hudson, J., Jan. 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]; Cornwall v State of New York, UID No. 2010-015-186 [Ct Cl, Collins, J., Oct. 28, 2010]). If defendant satisfies both of these procedural steps, and if the claim is, in fact, unverified, then the claim is properly dismissed (see Cornwall).
The claim that was served on defendant and e-filed with the Court is lacking a verification. On April 1, 2013, defendant elected to treat the claim as a nullity and informed this pro se claimant that the claim was rejected because of the lack of verification (see Wagner Affirmation, Exhibit A). Thus, defendant has demonstrated that it complied with CPLR 3022. The instant motion to dismiss on the particular grounds of the absence of verification was made before a responsive pleading was due, and thus defendant has also complied with Court of Claims Act § 11 (c). Claimant does not address the absent verification in opposition to defendant's motion, and although claimant has indicated that she sent to defendant a signed copy of her "complaint" (see Stoops Correspondence, May 2, 2013), she has not submitted that document to the Court nor does she argue that her signature constitutes a proper verification of the claim. Accordingly, defendant's motion to dismiss this claim must be granted.
Defendant alternatively argues that the claim is jurisdictionally defective because it is untimely. A claim for damages from personal injury due to the unintentional or intentional torts of a State agent must be filed with the Clerk of the Court and served upon the attorney general within ninety days after the accrual of the claim (Court of Claims Act §§ 10 [3]; 10 [3-b]). Alternatively, and within that same ninety-day period, the claimant may serve upon the attorney general a written notice of intention to file a claim (id.). It is well established that the filing and service requirements of the Court of Claims Act must be strictly construed (see Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]), and that the failure to comply with those requirements is a jurisdictional defect requiring dismissal of the claim (see id.; Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]; Suarez v State of New York, 193 AD2d 1037 [3d Dept 1993]). Based upon the allegations in the claim, it appears that it accrued sometime in the 1970s, either in 1970 upon the Legislature's alleged passage of unconstitutional legislation, or in 1971 when claimant allegedly underwent an abortion. There is no indication that a notice of intention to file a claim was ever served, and this claim, filed and served in 2013, some 40-plus years after its accrual, is clearly untimely. Further, there is nothing in claimant's submissions indicating that she was entitled to a toll of the filing and service requirements of the Court of Claims Act (see CPLR 208; Court of Claims Act § 10 [5]). Claimant's contention that the nature of this claim warrants no limitation on timeliness (see Stoops Correspondence, May 2, 2013) is simply an insufficient response to this jurisdictional defect, and the claim, even if properly verified, would be dismissed for lack of jurisdiction.
Finally, this Court lacks jurisdiction over federal constitutional claims (see Lyles v State of New York, 2 AD3d 694, 696 [2d Dept 2003]). In light of the Court's determination that the claim must be dismissed for lack of verification and untimeliness, whether claimant may maintain a cause of action sounding in State constitutional tort or whether claimant has standing to bring this claim need not be discussed, particularly in light of defendant's cursory argument on these issues (see Wagner Affirmation, ¶¶ 9, 10).
Accordingly, it is
ORDERED, that motion number M-83331 is GRANTED and claim number 122550 is DISMISSED.
June 28, 2013
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim Number 122550, filed March 25, 2013;
(2) Claimant's Arguments, E-filed April 22, 2013;
(3) Notice of Motion to Dismiss, dated April 23, 2013;
(4) Affirmation of Belinda Wagner, AAG, in Support of Motion to Dismiss, dated April 23, 2013, with Exhibit A;
(5) Correspondence of Dorothy J. Stoops, dated May 2, 2013 and E-filed May 13, 2013;
(6) Claimant's Planned Testimony, undated and E-filed May 13, 2013;
(7) Reply Affirmation of Belinda Wagner, AAG, dated May 21, 2013;
(8) Affidavit of Dorothy J. Stoops, sworn to May 29, 2013 and E-filed May 30, 2013;
(9) Affidavit of Seth M. Hall, sworn to June 1, 2013 and E-filed June 11, 2013;
(10) Claimant's Planned Statement, dated May 30, 2013 and E-filed June 11, 2013.