Defendant's motion to dismiss claim for lack of verification granted.
|Claimant short name:||MYRICK|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Stephen Barry, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 1, 2019|
|See also (multicaptioned case)|
This claim by an individual who is incarcerated in a State correctional facility was served and filed on January 9, 2014. Defendant moves to dismiss the claim for lack of verification. Claimant has defaulted in responding to the motion.
The requirements of Court of Claims Act § 11 (b) are jurisdictional conditions to lawsuits against the State (see Lepkowski v State, 1 NY3d 201, 206-207 ), and "strict compliance with the jurisdictional requirements of the Court of Claims Act is necessary" (Kolnacki v State of New York, 8 NY3d 277, 281 ), including verification requirements (see Long v State of New York, 7 NY3d 269, 276 ). Court of Claims Act § 11 (b) mandates that a claim "shall be verified in the same manner as a complaint in an action in the supreme court," and "where the adverse party is entitled to a verified pleading, he may treat it as a nullity" (CPLR 3022), provided that the pleading is returned with due diligence and accompanied by notification of the absence the verification or the defect within it (see Matter of Miller v Board of Assessors, 91 NY2d 82, 86 ; Lepkowski v State, 1 NY3d at 210).
Defendant acknowledges service of the claim by certified mail, return receipt requested upon the Attorney General on January 9, 2014, and it does not assert that such service was untimely or improper (see Barry Affirmation, ¶ 3). By letter dated January 9, 2014, defendant notified claimant pursuant to CPLR 3022 that it is "electing to treat the enclosed notice of intention [sic] received on today's date as a nullity and is hereby rejecting and returning it to you" because it was unverified (id.; Exhibit C). A verified answer to the claim was filed on February 20, 2014 that included as its Fifth Affirmative Defense that the claim was "defective for failing to include a proper verification" (Verified Answer, ¶ 9).
Here, defendant elected to treat the unverified claim as a nullity by rejecting and returning it to claimant on the same day it was received by the Attorney General, and as noted above, claimant has not submitted opposition to the motion. The jurisdictional defense that the claim was unverified was raised with particularity in the answer and was therefore preserved (see Court of Claims Act § 11 [c]). Accordingly, defendant's motion to dismiss the claim for the jurisdictional defect of lack of verification will be granted. Thus, it is
ORDERED, that motion number M-93582 is GRANTED and claim number 123763 is DISMISSED, and it is further
ORDERED, that claim number 123763 is STRICKEN from the May 9, 2019 trial calendar.
May 1, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim Number 123763, filed January 9, 2014;
(2) Verified Answer, filed February 20, 2014;
(3) Notice of Motion, dated March 1, 2019;
(4) Affirmation of Stephen Barry, AAG, in Support of Motion to Dismiss, dated March 1, 2019
with Exhibits A-C;
(5) Proof of Service of Motion by Susan Martinelli, sworn to March 1, 2019.