New York State Court of Claims

New York State Court of Claims
MONTGOMERY v. THE STATE OF NEW YORK, # 2018-041-008, Claim No. 130319, Motion Nos. M-91398, M-91399

Synopsis

Defendant's motion to dismiss claim served on Attorney General multiple times is decided as follows: Service of unverified claim upon Attorney General by certified mail, return receipt requested, is insufficient to obtain jurisdiction over defendant; service of unverified claim by regular mail is insufficient to obtain jurisdiction over defendant; verified claim served on Attorney General by regular mail more than two years after accrual, is insufficient to grant jurisdiction over defendant where claimant served a timely notice of intention to file a claim.

Case information

UID: 2018-041-008
Claimant(s): ERIC MONTGOMERY
Claimant short name: MONTGOMERY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130319
Motion number(s): M-91398, M-91399
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: ERIC MONTGOMERY
Pro Se
Defendant's attorney: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Belinda A. Wagner, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 24, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant moves (M-91399) to dismiss the claim because it was unverified when initially served by certified mail, return receipt requested, was subsequently served (unverified) by regular mail, rather than by certified mail, return receipt requested, and was next served (verified but by regular mail) beyond the time limitations set forth in the Court of Claims Act. The claimant opposes the defendant's motion to dismiss.

The claimant also filed and served a "Motion of Verification of Claim" (M-91398) which included no supporting affidavit or proposed verified claim or other exhibits beyond a verification (dated October 18, 2017) of "the foregoing claim." Defendant opposes the claimant's motion.

The claim alleges that the inmate-claimant was injured due to defendant's negligence on October 2, 2015. A notice of intention to file a claim was served on the Attorney General on October 20, 2015.

The claim was served on the Attorney General by certified mail, return receipt requested, on September 29, 2017 and was rejected and returned that same day via letter to claimant, advising that the unverified claim was being treated as a nullity pursuant to CPLR 3022.

Court of Claims Act 11 (b) provides that the "claim . . . shall be verified in the same manner as a complaint in an action in the supreme court." The Court of Appeals has interpreted the provisions of Section 11 (b) as "'substantive conditions upon the State's waiver of sovereign immunity'" (Kolnacki v State of New York, 8 NY3d 277, 280-281 [2007], quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and instructed that "[t]he failure to satisfy any of the conditions is a jurisdictional defect" (Kolnacki at 281).

"Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he gives notice with due diligence to the . . . adverse party that he elects so to do" (CPLR 3022).

The court finds that the defendant exercised due diligence in immediately notifying the claimant that it was treating the claim as a nullity for lack of verification, as required by the provisions of CPLR Rule 3022 and Court of Claims Act 11 (b).

The unverified claim served on the Attorney General by certified mail, return receipt requested, on September 29, 2017 is insufficient to obtain jurisdiction over defendant.

On October 16, 2017 claimant served another unverified copy of the claim on the Attorney General by regular mail, rather than by certified mail, return receipt requested. The October 16, 2017 claim was also properly rejected by the Attorney General as unverified. The October 16, 2017 unverified claim is insufficient to obtain jurisdiction over defendant.

On October 23, 2017 claimant served a copy of the claim, verified on October 18, 2017, on the Attorney General by regular mail, rather than by certified mail, return receipt requested.

Court of Claims Act 11 (a) (i), provides, at relevant part, that:

"The claim shall be filed with the clerk of the court; and, except in the case of a claim for the appropriation by the state of lands, 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."

Claimant is required to satisfy the "literal notice requirements of Court of Claims Act 11" (Femminella v State of New York, 71 AD3d 1319 [3d Dept 2010]). Any manner of service other than personal service or certified mail, return receipt requested, is insufficient to strictly fulfill the statutory criteria (Femminella 71 AD3d at 1319).

Service of a claim by regular mail upon the Attorney General is insufficient to obtain personal jurisdiction over the defendant (Fulton v State of New York, 35 AD3d 977, 978 [3d Dept 2006], lv denied 8 NY3d 809 [2007]; see Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]; Thompson v State of New York, 286 AD2d 831 [3d Dept 2001]; Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied 96 NY2d 708 [2001], rearg denied 96 NY2d 855 [2001]).

The verified claim served by claimant on the Attorney General by regular mail on October 23, 2017 is insufficient to obtain jurisdiction over defendant.

The verified claim served by regular mail on October 23, 2017 was also jurisdictionally deficient because it was untimely.

Court of Claims Act 10 (3) provides as follows:

"A claim to recover damages for injuries to property or for personal injuries caused by the negligence or unintentional tort of an officer or employee of the state while acting as such officer or employee, shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim."

Here, the verified claim served by regular mail on October 23, 2017 alleges negligence. Claimant properly served a notice of intention to file a claim within ninety days of the claim's accrual on October 2, 2015 but failed to properly serve his claim within two years after the accrual of the claim, a time period which expired on October 2, 2017.

The defendant's motion to dismiss the claim (M-91399) is granted. The claimant's motion (M-91398) is denied. The claim is dismissed.

January 24, 2018

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion to Dismiss (M-91399), filed November 6, 2017;

2. Affirmation of Belinda A. Wagner, dated November 6, 2017, and attached exhibits;

3. Claimant's unsworn Response to Defendant's Notice of Motion to Dismiss, filed December 4, 2017;

4. Claimant's Motion of Verification of Claim (M-91398), filed November 6, 2017.