Claimant's motion for default judgment. Defendant's motion to dismiss due to lack of verification and improper cause of action.
|Claimant short name:||RAMIREZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-95175, M-95176|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Jonathan Ramirez, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 13, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on these motions: Claimant's Notice of Motion with attachments; Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibit 1 and Defendant's Affirmation in Support of Motion and in Opposition with annexed Exhibits 1-3.
Claimant, Jonathan Ramirez, pro se, has brought this motion seeking an order of default judgment stating that the Office of the New York State Attorney General did not timely reject his claim for lack of verification and there was no provision to remedy the defect. Defendant, the State of New York, opposes the motion and brings this pre-answer motion to dismiss pursuant to CPLR 3211 (a) (2) and Court of Claims Act § 11(b) seeking an order dismissing the claim. Claimant did not oppose defendant's motion.
Defendant states that on December 12, 2019, the Office of the New York State Attorney General was served with a unverified claim in this matter. Defendant rejected the claim on December 12, 2019 because the verification accompanying the claim was not notarized pursuant to CPLR 3022.
Claimant alleges in his claim that the Fishkill Correctional Facility will not honor his request to release his private person. He also states that he is exercising his rights of personal liberty, privacy and his right to be protected from governmental interference. Although a verification was attached, it was not notarized.
Defendant argues that the claim must be dismissed, inter alia, since it was not properly verified.
Court of Claims Act § 11 (b) states in pertinent part that "[t]he claim and notice of intention to file a claim shall be verified in the same manner as a complaint . . . in the supreme court." Claimant's failure to strictly comply with the statutory requirements set forth in Court of Claims Act § 11 deprives this Court of jurisdiction over the claim (Lepkowski v State of New York,1 NY3d 201 ; Weaver v State of New York, 82 AD3d 878 [2d Dept 2011]). Accordingly, the Court must dismiss the claim.
Defendant also argues that the claim must be dismissed, inter alia, as it was improperly brought in the Court of Claims. To the extent claimant's request for the restoration of his personal liberty can be seen as a valid cause of action, it implicates a violation of his federal constitutional rights which is a claim outside the jurisdiction of the Court of Claims (see Court of Claims §9).
Therefore, for the foregoing reasons, claimant's motion (M-95175) is denied. Additionally, defendant's motion (M-95176) is granted and the claim is dismissed.
May 13, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims