Defendant's motion to dismiss claim for lack of verification held in abeyance pending resolution of whether claimant served a claim along with a verification that was served after defendant rejected the unverified claim.
|Claimant short name:||HALL|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE|
|Footnote (defendant name) :|
|Motion number(s):||M-93232, M-93233, M-93301|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||RALPH HALL, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: J. Gardner Ryan, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 3, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for injuries he claims to have sustained after allegedly contracting a flesh-eating virus at Green Haven Correctional Facility. One of the affirmative defenses asserted in defendant's answer is that the claim was not verified (see Verified Answer, ¶ 2). Claimant made a motion to dismiss that affirmative defense, which was denied (see Hall v State of New York, UID No. 2018-035-585 [Ct Cl, DeBow, J., Oct. 24, 2018]). Claimant now moves to reargue the Court's October 24, 2018 decision and order (Motion No. M-93233) and moves separately for issuance of a subpoena duces tecum (Motion No. M-93232). Defendant has not filed any papers in opposition to claimant's motions, but has filed a motion seeking dismissal of the claim on the ground that the Court lacks jurisdiction because it was not verified (Motion No. M-93301). Claimant opposes defendant's motion to dismiss the claim.
Turning first to defendant's motion to dismiss the claim, 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). The requirements of Court of Claims Act § 11 (b) are jurisdictional conditions to lawsuits against the State (see Lepkowski v State of New York, 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 ).
The affidavit of service that was filed with the claim states that "service" upon the Attorney General was made by certified mail, return receipt requested on November 15, 2017, but the affidavit of service does not recite the documents that were served, and the filed claim was unaccompanied by a verification. The claim that was received by defendant on November 20, 2017 was not verified (see Ryan Affirmation, ¶ 2, Exhibit 1). By letter dated November 20, 2017, the Attorney General's office notified claimant pursuant to CPLR 3022 that defendant was "electing to treat the enclosed document received on today's date as a nullity and is hereby rejecting and returning it to you" because it was unverified (id.). Under cover letter dated November 27, 2017 addressed to the Clerk of the Court and copied to the Attorney General, claimant enclosed a " 'second' affidavit of service to be viewed as an addendum to the initial affidavit of service dated November 15, 2017" and he advised that "such addendum contains [a] 'verification' " (Hall Correspondence, dated Nov. 27, 2017 [emphasis in original]).(1) Although the sworn affidavit of service states that claimant "resubmitted" the claim and verification to the Attorney General on November 27, 2017 as an " 'addendum' to initial service" (Affidavit of Service, sworn to Nov. 27, 2017, ¶ 2), the Assistant Attorney General defending the claim avers that defendant received a "bare verification 'of the foregoing,' with a request that it be deemed as an addendum to [claimant's] earlier affidavit of service" (Ryan Affirmation, ¶ 8).
Defendant treated 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 claimant does not argue that it did so without due diligence, or in any other improper manner, and the lack of verification was preserved because it was raised with particularity in defendant's verified answer (see Court of Claims Act § 11 [c]; Verified Answer ¶ 2 [First Affirmative Defense]). Defendant has thus demonstrated the jurisdictional defect attendant to claimant's initial claim and claimant's attempt to revive the null claim by subsequent service of a verification as an addendum to the claim is ineffective because "the failure to verify a pleading is a jurisdictional defect, which . . . cannot be cured by an amendment" (O'Kane v State of New York, UID No. 2013-040-017 [Ct Cl, McCarthy, J., Mar. 7, 2013], citing Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985 [3d Dept 1986]; see also Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009]). The only curative action for a null claim is subsequent timely and proper service of a verified claim (see O'Kane, supra; Newman v State of New York, 5 Misc3d 640, 642 [Ct Cl 2004]).
While the Assistant Attorney General asserts that he was not re-served with a claim, claimant disputes that contention with reference to his November 27, 2017 affidavit of service that avers that the claim was re-served along with the verification (see Hall Pro Se Reply, ¶¶ 5-6). Thus, whether a copy of the claim was included with claimant's service of documents on or about November 27, 2017 is a disputed issue of fact created by the parties' sworn competing statements, and thus, a hearing must be conducted to determine the facts that will resolve the jurisdictional controversy whether claimant's service of documents on or about November 27, 2017 included a claim (see Caci v State of New York, at 1123; Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589 [2d Dept 2009]). Thus, the appropriate relief at this point is the scheduling of a traverse hearing to determine whether a preponderance of the evidence establishes service of a claim along with the verification (see Caci v State of New York), which will allow resolution of the jurisdictional dispute.
Accordingly, it is
ORDERED, that a traverse hearing is hereby scheduled for Thursday, June 6, 2019 at 10:00 a.m. at Green Haven Correctional Facility, and it is further
ORDERED, that further proceedings on claimant's motion numbers M-93232 and M-93233 and defendant's motion number M-93301 will be held in abeyance pending a determination of jurisdiction.
May 3, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Claim No. 130612, filed November 22, 2017;
(2) Affidavit of Service of Ralph Hall, sworn to November 15, 2017;
(3) Correspondence of Ralph Hall, dated November 27, 2017 with Verification and Affidavit
of Service, both sworn to November 27, 2017;
(4) Verified Answer, filed December 11, 2017;
(5) "Notice and Combined Motion Request for the Production of Document [sic] for this Court's
Judicial Notice" (M-93232), dated October 30, 2018;
(6) "Motion Request" of Ralph Hall (Motion No. M-93232), dated October 30, 2018;
(7) "Notice and Combined Motion to Reargue Pursuant to CPLR 2221(d)" (M-93233), dated
November 30, 2018;
(8) "Motion" of Ralph Hall (M-93233), dated November 30, 2018, with Attachments;
(9) Notice of Motion (M-93301), dated December 6, 2018;
(10) Affirmation of J. Gardner Ryan, AAG, dated December 6, 2018, with Exhibits 1-2;
(11) "Pro Se Reply (of Ralph Hall) to Defendant's December 6, 2018 Notice and Affirmation," dated
December 11, 2018;
(12) Correspondence of Ralph Hall, dated January 9, 2019;
(13) Correspondence of Gina Hadcock, Secretary to Judge DeBow, dated January 28, 2019;
(14) Correspondence of Ralph Hall, dated February 12, 2019;
(15) Correspondence of Nancy Schulman, dated February 28, 2019;
(16) Correspondence of Ralph Hall, dated March 21, 2019;
(17) Decision and Order, Hall v New York State, UID No. 2018-038-585 (Ct Cl, DeBow, J.,
October 24, 2018).
1. Although claimant's affidavit of service indicates that a copy of the claim, an application for poor person relief and verification were sent to the Court of Claims, there is no record that a claim or application for poor person relief was refiled along with the verification and affidavit of service. Notably, claimant's correspondence, verification and affidavit of service - each of which is dated November 27, 2017 - all fail to identify the claim number.