New York State Court of Claims

New York State Court of Claims
McCARTHY v. THE STATE OF NEW YORK, # 2018-040-004, Claim No. 130119, Motion No. M-91091


State's Motion to Dismiss for failure to verify Claim denied.

Case information

UID: 2018-040-004
Claimant(s): KEVIN McCARTHY, JR.
Claimant short name: McCARTHY
Footnote (claimant name) :
Footnote (defendant name) : Caption amended to reflect the State of New York as the proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130119
Motion number(s): M-91091
Cross-motion number(s):
Claimant's attorney: Kevin McCarthy, Jr., #15-A-1320, Pro Se
Defendant's attorney: ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Glenn C. King, Esq., AAG
Third-party defendant's attorney:
Signature date: January 4, 2018
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


For the reasons set forth below, Defendant's Motion to dismiss the Claim based upon lack of subject matter and personal jurisdiction pursuant to CPLR 3211(a)(2) and (8) for failure to comply with the verification requirements of Court of Claims Act 11 is denied, and the remainder of the Motion is denied as moot.

This pro se Claim, which was filed with the office of the Clerk of the Court on August 14, 2017, asserts that, on February 11, 2017, while incarcerated at Bare Hill Correctional Facility, Claimant was transferred from the general prison population to the Special Housing Unit (hereinafter, "SHU"). Claimant asserts that a correction officer did not allow him to lock his locker before being taken to SHU. He alleges that his property was either stolen from his locker or from his property bag when he entered SHU (Claim, 2).

Court of Claims Act 10(9) provides that:

A claim of any inmate in the custody of the department of corrections and community supervision for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

The Department of Corrections and Community Supervision (hereinafter, "DOCCS") has established a two-tier system of administrative review for the loss of inmates' personal property consisting of an initial review and an appeal (7 NYCRR 1700.3). Each of these "separate and distinct steps must be completed at the time a claim is filed and served in order for a claimant to be deemed to have exhausted his [or her] administrative remedies pursuant to [Court of Claims Act ] 10 (9)" (Tafari v State of New York, UID No. 2002-019-591 [Ct Cl, Lebous, J., Dec. 9, 2002]; see Griffin v State of New York, UID No. 2007-015-232 [Ct Cl, Collins, J., Aug. 23, 2007]). Here, Claimant asserts that he filed an administrative claim, which was denied. He then filed an administrative appeal, which was also denied. He asserts that the envelope containing the denial of the appeal was dated April 19, 2017 (Claim, 2).

In his affirmation submitted in support of the State's Motion, Defense counsel asserts that the Attorney General's office received a Claim on August 14, 2017 that was not properly verified as required by Court of Claims Act 11(b) and CPLR 3022 (see Affirmation of Assistant Attorney General Glenn C. King, Esq. [hereinafter, "King Affirmation"], 4 and Ex. A attached). Defendant rejected the Claim and returned it to Claimant the next day, August 15, 2017, stating that Defendant was treating the Claim as a nullity because the verification was not signed by the party (King Affirmation, 4 and Ex. B attached).

CPLR 3022 provides:

A defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do.

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 [S]upreme [C]ourt." The Court of Appeals has declared that the language means precisely what it says and, thus, "embraces CPLR 3022's remedy for lapses in verification" (Lepkowski v State of New York, 1 NY3d 201, 210 [2003]). Thus, the sufficiency of Claimant's verification and Defendant's rejection at issue in this Claim must be evaluated in the same manner as they would be in any other court where practice is governed by the CPLR.

The Court has reviewed the filed Claim and the Claim served upon the Attorney General (Ex. A attached to the King Affirmation) and they are identical. The Court concludes that Claimant did sign the verification directly under the Notary Public's signature. The Court concludes, therefore, that the Claim was verified by Claimant pursuant to Court of Claims Act 11(b) and CPLR 3022 and was improperly rejected by Defendant.

As the Court finds that the Claim that was served on August 14, 2017 was properly verified, the Motion to dismiss the Claim as improperly verified is denied. The remainder of Defendant's Motion, asserting the second Claim served upon Defendant by Claimant on August 25, 2017 should be dismissed, as improperly served upon Defendant by regular mail, is denied as moot as the Court finds that the original Claim was properly verified. The State is directed to serve and file an Answer to the Claim within forty (40) days of the date of filing of this Decision and Order.

January 4, 2018

Albany, New York


Judge of the Court of Claims

The following papers were read and considered by the Court on Defendant's Motion to dismiss:

Papers Numbered

Notice of Motion, Affirmation in Support

and Exhibits Attached 1

Claimant's Opposition 2

Filed Papers: Claim