Defendant's motion to dismiss granted for claimant's failure to properly verify the claim.
|Claimant short name:||MOREHOUSE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Scott Morehouse, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Anthony Rotondi, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 27, 2019|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, filed the instant claim on July 24, 2017 seeking damages sustained after claimant was allegedly assaulted by a New York State Unified Court System officer. Claimant now moves to compel responses to his discovery demands. Defendant cross-moves for dismissal of the claim on the ground that the claim is unverified. The Court will first address defendant's dismissal motion.
Court of Claims Act § 11 (c) states that any objection or defense based upon the failure to comply with (i) the time limitations contained in section ten of the Court of Claims Act, (ii) the manner of service requirements, or (iii) the verification requirements 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. Compliance with the filing and service requirements contained in the Court of Claims Act is a jurisdictional prerequisite to bringing and maintaining an action in the Court of Claims (Buckles v State of New York, 221 NY 418 ), and failure to comply constitutes a fatal jurisdictional defect requiring dismissal (Finnerty v New York State Thruway Auth., 75 NY2d 721 ; Suarez v State of New York, 193 AD2d 1037 [3d Dept. 1993]). The Court cannot waive a defect in jurisdiction that has been timely raised (Thomas v State of New York, 144 AD2d 882 [3d Dept. 1988]).
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 a defectively verified 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]). Here, defendant raised claimant's failure to properly verify the claim in its Verified Answer (Verified Answer ¶ 7). Defendant also notified claimant of its rejection of the claim on the ground that the verification was not notarized by returning the claim, together with a rejection letter, on July 25, 2017--the same day that the Attorney General's Office received the claim (Rotondi Aff. Exh. B). Thus, the Court finds that defendant properly complied with CPLR 3022 in giving "notice with due diligence" to claimant (CPLR 3022), and properly raised the failure to verify as a defense in its Verified Answer.
In response to defendant's motion, claimant argues that the claim is properly verified because he utilized a form verification page entitled "Verification When Notary Public Is Unavailable" (Claim, p. 7). Claimant's argument is misplaced, as he relies on People v Sullivan, 56 NY2d 378 , which held that an unsworn written statement could support an application for a search warrant so long as the statement included a notice stating that a false written statement was a punishable offense under the Penal Law. People v Sullivan is not applicable to civil actions brought in State courts (Tafari v State of New York, UID No. 2016-038-501 [Ct Cl, DeBow, J., Jan. 14, 2016]). As stated in CPLR 3020 (a), "[a] verification is a statement under oath . . ." Because claimant was not administered an oath, and because the verification was not submitted in the form of an affidavit, the Court must find that the claim is jurisdictionally defective (see Castelano v State of New York, UID No. 2017-015-226 [Ct Cl, Collins, J., Apr. 25, 2017]).
Based upon the foregoing, defendant's cross motion to dismiss the claim (CM-93182) is GRANTED; claimant's motion to compel responses to discovery demands (M-93059) is DENIED as moot; and claim number 130021 is DISMISSED.
March 27, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Claim, filed on July 24, 2017.
2. Notice of Motion to Compel Discovery or Default Judgment, dated October 28, 2018.
3. Notice of Cross Motion, dated November 27, 2018; and Affirmation in Opposition to Claimant' Motion to Compel and in Support of Defendant's Cross Motion, affirmed by Anthony Rotondi, AAG on November 27, 2018, with Exhibits A through C annexed thereto.
4. Affirmation in Opposition of Defendant's Cross Motion to Dismiss and Motion to Compel, affirmed by claimant on December 10, 2018.