Opinion
# 2016-038-501 Claim No. 126311 Motion No. M-87076
01-14-2016
INJAH UNIQUE TAFARI#89A4807 v. THE STATE OF NEW YORK
INJAH UNIQUE TAFARI ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Douglas Kemp, Assistant Attorney General
Synopsis
Defendant's motion to dismiss for lack of verification granted. Declaration under penalty of perjury may be a permissible substitute for a sworn or verified instrument or affidavit in federal proceedings (see 28 USCA § 1746), but such a declaration is of no force in proceedings in State court
Case information
| UID: | 2016-038-501 |
| Claimant(s): | INJAH UNIQUE TAFARI #89A4807 |
| Claimant short name: | TAFARI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126311 |
| Motion number(s): | M-87076 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | INJAH UNIQUE TAFARI |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Douglas Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 14, 2016 |
| City: | Saratoga |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim on June 17, 2015, alleging unlawful confinement in a Special Housing Unit and loss of personal property. Defendant makes this pre-answer motion to dismiss the claim based upon claimant's failure to have notarized the verification that accompanied the claim. Claimant opposes the motion.
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 a claim is served unverified or with an insufficient verification, 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 "[w]here a pleading is served without a sufficient verification [defendant] 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 insufficient 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, unreported decision [Ct Cl, 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, insufficiently verified, then the claim must be dismissed (see Cornwall).
The claim that was served on defendant and filed with the Court is lacking a sworn verification. Rather, attached to the claim is a verification that states that "no notary [was] available" and that claimant "declare[s] under penalty of perjury that the above is true to [his] own knowledge" (Kemp Affirmation, Exhibit A; Claim Number 126311, filed June 17, 2015). Defendant's submission establishes that the claim was received by the Office of the Attorney General on June 22, 2015 (Kemp Affirmation, ¶ 4; Exhibit A), and on that same date defendant elected to treat the claim as a nullity and informed this pro se claimant that the claim was rejected because the verification was not notarized (id., Exhibit B). Thus, defendant has demonstrated that it complied with CPLR 3022. This motion to dismiss on the ground that the verification was insufficient was made before a responsive pleading was due, and thus defendant has also complied with Court of Claims Act § 11 (c).
In his unsworn reply papers, claimant argues that as an incarcerated inmate, his ability to acquire the services of a notary public is impaired, and that he has not been provided with notary services. Further, claimant argues that he verified the claim under penalty of perjury, as authorized by People v Sullivan (56 NY2d 378 [1982]), but his reliance on that opinion is misplaced. In People v Sullivan, the Court of Appeals considered how the constitutional requirement that an application for a search warrant be supported by an oath or affirmation could be satisfied in the absence of an express prescription for the form or manner of the oath or affirmation. In that circumstance, the Court held that an unsworn written statement that contained a form notice to the effect that a false written statement are punishable under the Penal Law was sufficient (see id., at 382-383). By contrast, as applicable to this civil action, the CPLR specifically provides that a verification "is a statement under oath" (CPLR 3020 [a] [emphasis added]), and the only form permitted is an affidavit (see CPLR 3020 [a]). Here, claimant was not administered an oath and his verification was not made in the form of an affidavit (see Sam v Town of Rotterdam, 248 AD2d 850, 851 [3d Dept 1998], lv denied 92 NY2d 804 [1998]). Although a declaration under the penalty of perjury may be a permissible substitute for a sworn or verified instrument or affidavit in federal proceedings (see 28 USCA § 1746), such a declaration is not of any force in proceedings in State court (see e.g. Wigfall v State of New York, UID No. 2004-019-599 [Ct Cl, Lebous, J., Dec. 7, 2004]). In sum, claimant's failure to submit a verification that was sworn to in accordance with the requirements of the CPLR renders his claim jurisdictionally defective, and the claim must be dismissed.
Claimant's reply "affidavit" also states that "no notary [was] present" and that he "declare[d] under penalty of perjury" that the contents of his reply papers were true to his knowledge (see Tafari Reply Affidavit, at 3). While the Court is not unsympathetic to the logistical hurdles faced by inmates in making and filing claims against the State, claimant's conclusory assertion that he has requested but has not been provided with notary services is, without greater elaboration, unpersuasive. Moreover, claimant's reply "affidavit" lacks evidentiary value because it, like the verification, is subscribed by an unsworn declaration.
Accordingly, it is
ORDERED, that defendant's motion M-87076 is GRANTED and claim number 126311 is DISMISSED.
January 14, 2016
Saratoga , New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 126311, filed June 17, 2015; (2) Notice of Motion, dated July 22, 2015; (3) Affirmation of Douglas Kemp, AAG, in Support of Motion to Dismiss, dated July 22, 2015, with Exhibits A-B; (4) Reply Affidavit of Injah Unique Tafari, dated July 30, 2015.