Following a traverse hearing, defendant's motion to dismiss the claim for lack of verification denied. The preponderance of the credible evidence established that defendant was served with a claim and verification, and defendant failed to provide any evidence that it was served with only a bare verification. Claimant's motion seeking to reargue the Court's October 24, 2018 decision and order denying claimant's motion to strike defendant's affirmative defense of lack of verification denied as unnecessary. Claimant's motion seeking the issuance of a subpoena duces tecum denied on grounds that it is seeking discovery under the guise of a judicial subpoena.
|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:||August 1, 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 (CF) on October 30, 2017. By decision and order dated May 3, 2019, this Court ordered a traverse hearing to determine whether the preponderance of the evidence establishes that claimant served the claim along with the verification, and held in abeyance (1) claimant's Motion No. M-93232 seeking the issuance of a subpoena duces tecum, (2) claimant's Motion No. M-93233 seeking to reargue this Court's decision denying claimant's motion to dismiss the affirmative defense that the claim was not verified, and (3) defendant's Motion No. M-93301 seeking dismissal of the claim on the ground that the claim was unverified (see Hall v State of New York, UID No. 2019-038-539 [Ct Cl, DeBow, J., May 3, 2019]). The traverse hearing was conducted by videoconference on June 6, 2019 with the parties appearing at Green Haven CF in Stormville, New York and the Court sitting in Albany, New York. Claimant offered his testimony; defendant called no witnesses. After listening to claimant's testimony, and observing his demeanor as he testified, and upon consideration of that evidence, evidence filed with the Court on the motion and in reply to defendant's verified answer, and the applicable law, the Court makes the following findings of fact and conclusions of law.
At the hearing, defendant declined to call any witnesses or offer any other evidence. Claimant testified that after his claim was rejected by defendant as being unverified, he served on defendant the claim, a verification, and an application for poor person relief by certified mail, return receipt requested (CMRRR) that was received on December 1, 2017. Claimant testified that the entire package he mailed was between 20 to 25 pages in length. Defendant waived cross examination of claimant. Neither party offered any exhibits at the hearing, but claimant did make reference to two documents he filed with the Court: a reply to defendant's answer that was filed on December 18, 2017 that had appended to it a certified mail receipt stating that defendant had received certified mail from claimant on December 1, 2017, and a supplemental reply claimant filed on December 22, 2017 that had a certified mail receipt indicating that claimant paid $8.13 for the certified mail that was received on December 1, 2017 (see Pro-Se Claimant's Reply to Defendant's Verified Answer, dated Dec. 14, 2017; Supplemental Reply of Ralph Hall, sworn to Dec. 18, 2017). Following the hearing, the Court requested that defendant transmit to the Court, with a copy to claimant, the claim and any attachments that were served by claimant on the Attorney General on November 20, 2017, along with a copy of the envelope in which it was received, which was received by the Court on July 16, 2019 (see Barry Correspondence, dated July 16, 2019, with Exhibits 1-2). In addition, defendant submitted the affidavit of Debra L. Mantell, a legal assistant in the Office of the Attorney General, who avers that the only claim that was served on defendant was the unverified claim that was served on November 20, 2017 (see id., Exhibit 1 [Mantell Affidavit, ¶¶ 7-8]).
Court of Claims Act § 11 (b) mandates that a claim "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 , rearg denied 8 NY3d 994 ), including verification requirements (see Long v State of New York, 7 NY3d 269, 276 ).
The evidence on the motion establishes the following. First, that claimant served by CMRRR an unverified claim on defendant that was received and rejected by defendant on November 20, 2017 (see Ryan Affirmation, ¶ 2; id., Exhibit 1). The unverified claim that was served on defendant was seven pages long and had appended to it a one-page application for poor person relief and three exhibits totaling 18 pages, for a total of 26 pages, and the envelope in which the unverified claim was served demonstrating that service of the unverified claim cost $8.13 in postage (see Barry Correspondence, dated July 16, 2019, Exhibit 2). The evidence also establishes that on December 1, 2017, defendant received a package by CMRRR from claimant, that the certified mail return card bore the notation "Claim No. 130612" (Pro-Se Claimant's Reply to Defendant's Verified Answer, dated Dec. 14, 2017, [CMRRR return card]), and that the cost to mail the package was $8.13 (see Supplemental Reply of Ralph Hall, sworn to Dec. 18, 2017 [CMRRR receipt]).
Here, although the Assistant Attorney General initially defending the claim averred 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" after defendant was served with the unverified claim (Ryan Affirmation, ¶ 8), defendant has not submitted a copy of the bare verification that it asserts was served on it. Claimant's testimony that he served a verified claim by CMRRR that was received by the Attorney General on December 1, 2017 - which went unrebutted by any other live witness at the hearing - and the certified mail receipts showing that the package that he served on the Attorney General December 1, 2017 had identical postage as the claim that he served on November 20, 2017, flatly and persuasively contradict defendant's claim that it was served only with a bare verification. Thus, the preponderance of the credible evidence on this motion establishes that defendant was served on December 1, 2017 with a claim and a verification, and defendant's motion to dismiss the claim for lack of verification will be denied.(1)
Turning next to claimant's motion seeking the issuance of a subpoena duces tecum, "[i]n order for a court to issue a subpoena duces tecum, the party seeking the subpoena must make a preliminary showing that the record requested actually contains the information that he or she seeks to obtain. A mere showing that the record may potentially uncover relevant evidence is insufficient" (Bostic v State of New York, 232 AD2d 837, 839 [3d Dept 1996], lv denied 89 NY2d 807 ). Here, claimant does not specifically identify any documents that he seeks to be produced by a judicial subpoena and instead seeks the production of "relative documents controlled by defendants, where allegedly, evidence of mitigating, repeat occurrences of the 'MERSA, [sic] flesh eating virus' have been documented in State prisoner's medical files" (Motion Request [M-93232], ¶ 1). Claimant's request is more in the nature of a discovery request, and is therefore improper because it seeks discovery under the guise of a judicial subpoena (see Matter of Decrosta v State Police Lab., 182 AD2d 930, 931 [3d Dept 1992] ["a subpoena duces tecum may not be used as a fishing expedition for the purpose of discovery or to ascertain the existence of evidence"]; see also Bostic v State of New York, 232 AD2d at 839). Rather than seeking any documents by way of judicial subpoena, claimant is free to make a demand for documents under CPLR 3120. Thus, claimant's motion seeking a subpoena duces tecum will be denied.
Finally, inasmuch as the Court has denied defendant's motion to dismiss the claim due to a lack of verification, claimant's motion seeking to reargue the Court's October 24, 2018 decision and order denying claimant's motion to strike defendant's affirmative defense for lack of verification will be denied as unnecessary.
Accordingly, it is
ORDERED, that claimant's motion number M-93232 is DENIED; and it is further
ORDERED, that claimant's motion number M-93233 is DENIED; and it is further
ORDERED, that defendant's motion number M-93301 is DENIED.
August 1, 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) Pro-Se Claimant's Reply to Defendant's Verified Answer, dated December 14, 2017, with
Attachment (Certified Mail Return Card);
(6) Supplemental Reply of Ralph Hall, sworn to December 18, 2017, with Attachment (Certified
(7) "Notice and Combined Motion Request for the Production of Document [sic] for this Court's
Judicial Notice" (M-93232), dated October 30, 2018;
(8) "Motion Request" of Ralph Hall (Motion No. M-93232), dated October 30, 2018;
(9) "Notice and Combined Motion to Reargue Pursuant to CPLR 2221(d)" (M-93233), dated
November 30, 2018;
(10) "Motion" of Ralph Hall (M-93233), dated November 30, 2018, with Attachments;
(11) Notice of Motion (M-93301), dated December 6, 2018;
(12) Affirmation of J. Gardner Ryan, AAG, dated December 6, 2018, with Exhibits 1-2;
(13) "Pro Se Reply (of Ralph Hall) to Defendant's December 6, 2018 Notice and Affirmation,"
dated December 11, 2018;
(14) Correspondence of Ralph Hall, dated January 9, 2019;
(15) Correspondence of Gina Hadcock, Secretary to Judge DeBow, dated January 28, 2019;
(16) Correspondence of Ralph Hall, dated February 12, 2019;
(17) Correspondence of Nancy Schulman, Principal Law Clerk, dated February 28, 2019;
(18) Correspondence of Ralph Hall, dated March 21, 2019;
(19) Correspondence of Ralph Hall, dated May 28, 2019;
(20) Correspondence of Ralph Hall, dated June 4, 2019;
(21) Correspondence of Ralph Hall, dated June 6, 2019;
(22) Correspondence of Ralph Hall, dated June 10, 2019;
(23) "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of
Claims, dated June 24, 2019;
(24) Correspondence of Ralph Hall, dated July 8, 2019, with attachments (Certified Mail
Receipt, DOCCS Disbursement or Refund Request and Certified Mail Return Card);
(25) Correspondence of Stephen Barry, AAG, dated July 16, 2019, with Exhibits 1-2;
(26) Correspondence of Ralph Hall, dated July 16, 2019;
(27) Correspondence of Ralph Hall, dated July 25, 2019;
(28) Decision and Order, Hall v New York State, UID No. 2018-038-585 (Ct Cl, DeBow, J.,
October 24, 2018);
(29) Decision and Order, Hall v New York State, UID No. 2019-038-539 (Ct Cl, DeBow, J., May 3, 2019).
1. To the extent that claimant seeks relief under Judiciary Law § 487 because defendant has failed to establish that the claim was unverified (see Hall Correspondence, dated July 16, 2019), it will be denied as he has not sought such relief by way of motion. Even if claimant properly sought relief by way of motion, as he should know, his request would be denied inasmuch as Judiciary Law § 487 creates a separate cause of action for treble damages arising from an attorney's misconduct but does not provide a mechanism for sanctioning an attorney within a pending matter (see Hall v State of New York, UID No. 2018-038-553 [Ct Cl, DeBow, J., June 19, 2018]).