Defendant's motion to dismiss for lack of jurisdiction and failure to state a cause of action granted.
|Claimant short name:||RIVERA|
|Footnote (claimant name) :|
|Defendant(s):||THE 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: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 5, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for injuries sustained as a result of a wrongful confinement at Green Haven Correctional Facility (CF) for eleven days beginning on August 13, 2019. Defendant now moves to dismiss the claim for lack of jurisdiction and failure to state a cause of action. Claimant has not responded to the motion.
The claim alleges that on August 11, 2019, claimant was issued an inmate misbehavior report (IMR) alleging that a urine sample that he had submitted for urinalysis testing the previous day had tested positive for THC (see Claim No. 134517, ¶ 3). The claim alleges that following a Tier II disciplinary hearing on August 13, 2019, claimant received eleven days of keeplock confinement and seven days loss of privileges (see id. at ¶ 4). The claim further alleges that on January 23, 2020, claimant received correspondence from the Department of Correction and Community Supervision (DOCCS) "Special Housing" informing him that the August 13, 2019 disciplinary determination had been administratively reversed due to a " 'cross reactivity issue that existed regarding the cannaboid assay used in testing' " (id. at ¶ 5). The claim alleges that claimant "suffered a deprivation of protected liberty interests, mental anguish, and anxiety and depression" as a result of "defendants [sic] negligence" and seeks $3,400 in damages (id. at ¶ 6). As relevant here, the claim is appended with a verification indicating that it was "sworn to" on February 19, 2020 and bearing the signature of an individual named Brett Insogna with the following statement:
"I, Brett Insogna being duly sworn, depose and state that on todays [sic] date, Albert Rivera, personally known to me and residing at the Greenhaven [sic] Correctional Facility with me, hereto signed his name before me and that due to limited access to notary service; that this court deems this just and proper"
(id., Verification, "sworn to" February 19, 2020).
Turning first to defendant's jurisdictional ground for dismissal, defendant moves to dismiss the claim due to claimant's failure to properly verify the claim as required by Court of Claims Act § 11 (b) and CPLR 3021 (see Rubinstein Affirmation, ¶ 21). Defendant states that the Office of the Attorney General (OAG) rejected and returned the claim on March 9, 2020, the same day it was received, on the ground that the verification bore an "improper/invalid notarization" (id.), as permitted pursuant to CPLR 3022 (see id., ¶ 22).(1) In the accompanying rejection letter, the OAG informed claimant that it was "electing to treat the [claim] . . . as a nullity" due to the fact that the verification was not notarized (id., Exhibit A [OAG Correspondence, dated Mar. 9, 2020]). Defendant argues that the failure to verify the claim as required by Court of Claims Act § 11 (b) renders the claim jurisdictionally defective, and that because the OAG promptly rejected the unverified claim and identified the defect with sufficient particularity, the claim must be dismissed for lack of jurisdiction (see id. at ¶¶ 23-25).
Court of Claims Act § 11 (b) mandates, as relevant here, that a claim "shall be verified in the same manner as a complaint in an action in the supreme court." Pursuant to the CPLR, "[a] defectively verified pleading shall be treated as an unverified pleading," and "where the adverse party is entitled to a verified pleading, he may treat [an unverified pleading] as a nullity" (CPLR 3022), provided that it is returned with due diligence and accompanied by notification of the absence of the verification or the defect within it (see Matter of Miller v Board of Assessors, 91 NY2d 82, 86 ; Lepkowski v State of New York, 1 NY3d 201, 210 ). The Court of Claims Act provides that an objection or defense based on the lack of proper verification "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, and if so waived the court shall not dismiss the claim for such failure" (Court of Claims Act § 11 [c]). It is well established that the requirements of Court of Claims Act § 11 (b) are jurisdictional conditions to lawsuits against the State (see Lepkowski v State, 1 NY3d at 206-207), and that "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 the requirement that claimant personally verify the claim (see Long v State of New York, 7 NY3d 269, 276 ). The jurisdictional defect of lack of verification can be cured only "by serving a verified claim within the applicable time period contained in" Court of Claims Act § 10 (Newman v State of New York, 5 Misc 3d 640, 642 [Ct Cl 2004]).
Here, the verification appended to the claim was not notarized, but rather includes a statement by another inmate at Green Haven CF stating that claimant signed the claim in his presence in the absence of a notary. While the Court is not unmindful of the difficulties that inmates can sometime encounter in obtaining notary services while incarcerated, the CPLR clearly defines a verification as "a statement under oath that the pleading is true to the knowledge of the deponent" (CPLR 3020 [a] [emphasis added]), and the statement of claimant's fellow inmate is not a proper substitute for a validly notarized verification (see Tafari v State of New York, UID No. 2016-038-501 [Ct Cl, DeBow, J., Jan. 14, 2016] [unsworn verification jurisdictionally defective even in the absence of notary services]). Because the OAG promptly rejected and returned the claim to claimant with a letter clearly indicating the reason for the rejection and then promptly moved to dismiss the claim for lack of verification,(2) defendant has satisfied its obligations under the Court of Claims Act and the CPLR and has demonstrated that the claim was not verified as required under those statutes. The lack of verification is a jurisdictional defect requiring dismissal of the claim, and defendant's motion must therefore be granted.
Inasmuch as the Court has granted that branch of defendant's motion to dismiss on jurisdictional grounds, defendant's remaining arguments need not be addressed.
Accordingly, it is
ORDERED, that defendant's motion number M-95598 is GRANTED, and claim number 134517 is hereby DISMISSED.
October 5, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 134517, filed February 24, 2020;
2. Notice of Motion to Dismiss, dated April 28, 2020;
3. Affirmation of Heather R. Rubinstein, AAG, in Support of Motion to Dismiss, dated April 28, 2020, with Exhibit A;
4. Affidavit of Service of Francine Broughton, sworn to April 30, 2020.
1. Defendant's affirmation of counsel erroneously states that the claim was received on March 9, 2019 (see Rubinstein Affirmation, ¶ 21).
2. The OAG rejected the unverified claim on March 9, 2020, and defendant served his motion to dismiss for lack of verification on April 30, 2020, beyond the 40-day period to answer the claim (see Broughton Affidavit of Service, sworn to Apr. 30, 2020; see also 22 NYCRR 206.7 [a]). However, on March 20, 2020, in response to the Coronavirus pandemic, the Governor issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8]). That directive has been extended through successive Executive Orders, including most recently Executive Order No. 202.67, which extends the directive through November 3, 2020, and states that the toll will not be further suspended (see Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67]). Pursuant to the Executive Orders, therefore, defendant's time to serve the responsive pleading has not yet expired, and thus the motion to dismiss for lack of verification was timely filed and served.