Defendant's motion to dismiss the claim for lack of a verification was denied where it erroneously failed to raise such a defense in its filed answer to the claim. Rather, it appears an answer may have been filed on a verified claim which had been assigned a different claim number.
|Claimant(s):||RAYMOND MAYRANT, #16A0232|
|Claimant short name:||MAYRANT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Glenn C. King, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 16, 2020|
|See also (multicaptioned case)|
Defendant moves to dismiss the instant claim pursuant to CPLR 3211 (a) (2) on the ground it was not verified as required by Court of Claims Act § 11 (b).
Claimant, a pro se inmate, seeks damages for injuries allegedly sustained when he was assaulted by a correction officer at Great Meadow Correctional Facility on June 8, 2017, and for failing to provide medical and or dental treatment for his injuries. Defendant contends in support of its dismissal motion that the claim served on July 24, 2017 was not verified in accordance with CPLR 3020 and 3021, the claim was rejected that same day with a notice stating "the verification is not notarized" (defendant's Exhibit A), and lack of a verification was raised as an affirmative defense in its answer.
Court of Claims Act § 11 (b) requires that a claim "shall be verified in the same manner as a complaint in an action in the supreme court." The law is settled that "all of the requirements in section 11(b) are 'substantive conditions upon the State's waiver of sovereign immunity' " (Kolnacki v State of New York, 8 NY3d 277, 280-281 , quoting Lepkowski v State of New York, 1 NY3d 201, 207 ) and strict compliance is therefore required (Kolnacki, 8 NY3d at 281, citing Long v State of New York, 7 NY3d 269, 276  [dismissing claimant's action for failure to comply with verification requirements of Court of Claims Act § 8-b (4)]).
Verification of a complaint in the 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 them to be true" (CPLR 3020 [a]; see Lepkowski v State of New York, 1 NY3d at 209-210 ). In order to avoid waiving an objection to an unverified or improperly verified claim under Court of Claims Act § 11 (c) (iii), the defendant must both notify the claimant of the defect with due diligence and raise its objection in either a pre-answer dismissal motion or as an affirmative defense in its answer (Flowers v State of New York, 175 AD3d 1724 [3d Dept 2019]; Gillard v State of New York, 28 Misc 3d 1139, 1142 [Ct Cl 2010]). Those steps were not followed here. Although defendant returned the defectively verified claim to the claimant on the same day it was received, together with a notice of the nature of the defect, it did not raise the lack of a verification as an affirmative defense in its answer. The answer to the instant claim, dated and filed in the Office of the Clerk of the Court of Claims on September 15, 2017, bears the correct claim number but contains no such affirmative defense. According to defense counsel, a properly verified version of the same claim was served on the Attorney General's Office on August 7, 2017 and was filed in the Office of the Clerk under claim No. 130103 on August 10, 2017. An answer which contains an affirmative defense relating to the lack of verification is dated September 1, 2017 but contains no claim number (defendant's Exhibit B). The Court has reviewed the pleadings relating to claim number 130103 and has confirmed that the answer which raises the defense of the improper verification was filed in relation to that claim. It appears, therefore, that defendant may have inadvertently filed its answer to the verified claim under the claim number assigned to the unverified claim. Having failed to raise lack of a proper verification as an affirmative defense to the instant claim, defendant waived its objection to the unverified claim.
Accordingly, defendant's motion is denied.
March 16, 2020
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims