Motion to dismiss Claim on the ground that the original Claim served on the Attorney General was not verified denied; Defendant waived defense by failing to reject the Claim with due diligence in accordance with CPLR 3022; in light of the wavier of the defense, Claimant's motion to amend the Claim to add a properly executed verification page denied as moot; Claimant's motion to amend otherwise denied, without prejudice, as the proposed amended verified claim failed to clearly show the proposed additions/changes to the factual allegations contained in the initial Claim as required by CPLR 3025 (b).
|Claimant short name:||WRIGHT|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Etido Udousoro, Esq.|
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Ray A. Kyles, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||June 24, 2021|
|See also (multicaptioned case)|
Claimant Leon Wright, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), filed this Claim on December 31, 2020 alleging that DOCCS failed to protect him from an assault perpetrated by a fellow inmate at Auburn Correctional Facility on April 17, 2020. The Claim also alleges that Defendant failed to treat Claimant's injuries following the incident. Claimant moves to amend the Claim to, among other things, add an executed verification page to his Claim (M-96727). Defendant cross moves to dismiss the Claim on the ground that the original Claim served upon the Attorney General's Office is unverified (CM-96829). Because Defendant's motion implicates this Court's jurisdiction and is potentially dispositive, it will be addressed first.
Court of Claims Act § 11 (b) requires that notices of intention and claims "be verified in the same manner as a complaint in an action in the supreme court." Verification of a complaint in 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 that as to those matters he believes it to be true" (CPLR 3020 [a]). CPLR 3022 provides that "when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient 'with due diligence' returns the [pleading] with notification of the reason(s) for deeming the verification defective" (Lepkowski v State of New York, 1 NY3d 201, 210 ; citing Matter of Miller v Board of Assessors, 91 NY2d 82, 86 ). Although the Court of Appeals has "never specified a uniform time period by which to measure due diligence" (Lepkowski, 1 NY3d at 210, citing Matter of Miller, 91 NY2d at 86 n 3 ), other courts have held "due diligence" under CPLR 3022 requires notice within 24 hours or immediately (see e.g. Matter of Lentlie v Egan, 94 AD2d 839, 840 [3d Dept 1983], affd 61 NY2d 874 ; Air N.Y. v Alphonse Hotel Corp., 86 AD2d 932, 932 [3d Dept 1982]; Matter of Ladore v Mayor & Bd. of Trustees of Vil. of Port Chester, 70 AD2d 603, 604 [2d Dept 1979]; Matter of O'Neil v Kasler, 53 AD2d 310, 315 [4th Dept 1976]; but see Rodriguez v Westchester County Bd. of Elections, 47 Misc 3d 956, 962 [Sup Ct, Westchester County 2015] [holding "24 hours has never been, nor should it be, a strict deadline for determining due diligence" and suggesting courts "examine the facts and circumstances surrounding the service and rejection of the pleading"]).
The failure to satisfy a pleading requirement of Court of Claims Act § 11 (b) constitutes a jurisdictional defect requiring dismissal of a claim (see Kolnacki v State of New York, 8 NY3d 277, 281 , rearg denied 8 NY3d 994 ; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 ). However, Court of Claims Act § 11 (c) states that any objection or defense based upon the failure to comply with (i) the time limitations contained in section 10 of the Court of Claims Act, (ii) the manner of service requirements, or (iii) the verification requirement 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. Thus, to preserve the jurisdictional defense of an unverified claim, a defendant is required to "both notify the claimant of its rejection of the unverified claim with due diligence and assert the failure to verify as a defense in the answer or by pre-answer motion to dismiss" (Gillard v State of New York, 28 Misc 3d 1139, 1141 [Ct Cl 2010]; see Flowers v State of New York, 175 AD3d 1724, 1726 [3d Dept 2019]; Cannon v State of New York, UID No. 2019-040-090 [Ct Cl, McCarthy, J., Sept. 12, 2019]; Torres v State of New York, UID No. 2016-030-618 [Ct Cl, Scuccimarra, J., Dec. 6, 2016]; Lee v State of New York, UID No. 2016-015-172 [Ct Cl, Collins, J., Oct. 27, 2016]). "Failure to comply with either requirement will result in a waiver of the verification objection and/or defense" (Gillard, 28 Misc 3d at 1142 [internal quotation marks and citations omitted]).
Initially, the Court notes that although Defendant states that it received the unverified Claim on February 5, 2021 (see Affirmation of Ray A. Kyles, Esq., Assistant Attorney General ¶ 4), the certified mail return receipt tracking information indicates the New York State Attorney General's Office received this Claim on February 2, 2021 (see id. Ex A at 9). Defendant notified Claimant of its rejection of the Claim for lack of a proper verification by returning the Claim, together with a rejection letter on February 8, 2021 (see id. Ex B). Even assuming Defendant received the unverified Claim, as it states, on February 5, 2021, courts have held that a three-day delay in providing notice of rejection of an unverified pleading does not constitute due diligence under CPLR 3022 and results in a waiver of the defense (see e.g. Air N.Y., 86 AD2d at 932; Schaap Moving Sys., Inc., UID No. 2012-015-350 [Ct Cl, Collins, J., Aug. 15, 2012]; K.K. v State of New York, UID No. 2007-039-025 [Ct Cl, Ferreira, J., July 17, 2007]; see also Stewart v State of New York, UID No. 2007-028-521 [Ct Cl, Sise, J., Jan. 18, 2007] [holding the defendant waived any objection to the verification of the claim by delaying two days in rejecting and returning the claim]). Defendant has failed to provide any explanation for its delay in rejecting and returning the unverified Claim. Consequently, the Court concludes that Defendant failed to act with due diligence in rejecting the unverified Claim and, as such, waived the defense.
Turning to Claimant's motion, since the defense of lack of proper verification has been waived, Claimant's motion to amend the Claim for the purpose of adding a verification is unnecessary and should be denied as moot (see Bell v State of New York, UID No. 2007-009-009 [Ct Cl, Midey, Jr., J., Mar. 27, 2007]). To the extent the proposed amended claim seeks to add or change factual allegations, CPLR 3025 (b) provides that the proposed amending must "clearly show the changes or additions made to the pleading." Short of providing a verification page (which is not executed) (see Affirmation of Etido Udousoro, Esq., Ex A at 8), the proposed "Amended Verified Claim" submitted by Claimant does not clearly show the proposed additions or changes to the factual allegations contained in the initial claim. Accordingly, Claimant's motion to amend the Claim is otherwise denied without prejudice (see Vasquez v State of New York, UID No. 2019-038-603 [Ct Cl, DeBow, J., Nov. 16, 2019]; Torres v State of New York, UID No. 2017-040-089 [Ct Cl, McCarthy, J., July 14, 2017]).
In light of the foregoing, it is hereby:
ORDERED that to the extent Claimant's Motion M-96727 seeks to add a verification page to the Claim, it is DENIED as unnecessary and moot; and it is further
ORDERED Claimant's Motion M-96727 to amend the Claim is otherwise DENIED without prejudice; and it is further
ORDERED Defendant's Cross Motion CM-96829 is DENIED.
June 24, 2021
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court considered the following papers in deciding these motions:
(1) Notice of Motion, dated April 9, 2021.
(2) Affirmation of Etido Udousoro, Esq., in Support of Motion to Amend Claim, dated April 9, 2021, with attachments.
(3) Affidavit of Leon Wright, in Support of Motion to Amend Claim, sworn to on March 31, 2021.
(4) Notice of Cross Motion to Dismiss, dated May 27, 2021.
(5) Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, in Support of Defendant's Motion to Dismiss the Initial Claim and Deny Proposed Amended Claim as Moot, dated May 27, 2021, with attachments.