Defendant's motion to dismiss claim in lieu of answer is granted where Court lacks jurisdiction over unverified claim and further lacks jurisdiction over claim alleging negligent acts/omissions of officers/employees of the counties of Albany and Schoharie, respectively, rather than the State of New York.
|Claimant short name:||GUARNERI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 4, 2020|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim, in lieu of answering, for lack of jurisdiction because the claim was not verified and because the claim alleges negligent acts and/or omissions of officers/employees of the counties of Albany and Schoharie, respectively, rather than the State of New York.
Claimant has not appeared in opposition to the defendant's motion to dismiss.
The claim alleges various negligent acts and/or omissions of the "Albany County Correctional Facility" and the "Schoharie County Social Service."
The claim was served on the Attorney General on April 9, 2020, during the period covered by the Governor's COVID-19 Executive Order 202 providing for, among other things, tolling of "any specific time limit" for the "service of any legal action, notice, motion, or other process."
On or about July 20, 2020, while the Executive Order 202 tolling provision remained in effect, the defendant notified claimant in writing that it was rejecting and returning the claim and advised claimant that the unverified claim was being treated as a nullity pursuant to CPLR 3022.
Court of Claims Act 11 (b) provides that the "claim . . . shall be verified in the same manner as a complaint in an action in the supreme court." The Court of Appeals has interpreted the provisions of Section 11 (b) as "'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 instructed that "[t]he failure to satisfy any of the conditions is a jurisdictional defect" (Kolnacki at 281).
"Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he [or she] may treat it as a nullity, provided he gives notice with due diligence to the . . . adverse party that he elects so to do" (CPLR 3022).
The court finds that, in view of the circumstances underlying and addressed by the Governor's COVID-19 Executive Order 202, the defendant exercised due diligence in notifying the claimant that it was treating the claim as a nullity for lack of verification, as required by the provisions of CPLR Rule 3022 and Court of Claims Act 11 (b).
The unverified claim served on the Attorney General on April 9, 2020 is insufficient to obtain jurisdiction over defendant.
Additionally, the Court of Claims is a court of limited jurisdiction, charged with "exclusive jurisdiction over actions for money damages against the State," based upon the acts or omissions of its agencies or employees, where the State is the real party in interest (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; Woodward v State of New York, 23 AD3d 852, 855-856 , lv dismissed 6 NY3d 807 ; NY Const., Art. VI, § 9; Court of Claims Act § 9).
Consequently, the Court lacks jurisdiction over the claim alleging tortious acts by county officers neither employed by, nor acting on behalf of, the State of New York (Morell v Balasubramanian, 70 NY2d 297 ).
The defendant's motion to dismiss the claim is granted. The claim is dismissed.
November 4, 2020
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion to Dismiss, filed October 7, 2020;
2. Affirmation of Glenn C. King, dated October 7, 2020, and annexed exhibits.