Opinion
# 2012-029-004 Claim No. 119720 Motion No. M-80667
04-11-2012
DESTIN v. THE STATE OF NEW YORK
Synopsis
Claimants motion to strike affirmative defense of lack of verification is denied, claim was acknowledged instead of verified, but since defendant failed to move to dismiss, the defense is not jurisdictional and claimants submitted a meritorious application for late filing relief, claimants are directed to submit an amended, properly verified claim. Case information
UID: 2012-029-004 EDNA DESTIN, DANEEKA DESTINE, an infant under 18 years of Claimant(s): age, by her mother and natural guardian, EDNA DESTIN and TAHINAH CEUS Claimant short DESTIN name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote The court has amended the caption to properly reflect the (defendant name) defendant. : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119720 Motion number(s): M-80667 Cross-motion number(s): Judge: STEPHEN J. MIGNANO Claimant's REUVEN J. EPSTEIN, Esq. attorney: Defendant's ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL attorney: By: Rachel Zaffrann, Assistant Attorney General Third-party defendant's attorney: Signature date: April 11, 2012 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimants move for an order striking the Fifth Affirmative Defense - alleging that the "claim is defective for failing to include a verification, in accordance with Court of Claims Act Section 11 and Civil Practice Law and Rules 3020" - or in the alternative granting permission to late file. Defendant opposes the motion.
The claim arises from a January 14, 2011 automobile accident in which a vehicle owned and operated by Edna Destin was struck from behind, while stopped in traffic, by a vehicle owned by the defendant's Department of Motor Vehicles and driven by a DMV employee, allegedly the result of the DMV vehicle slipping on ice (Ex. C to Affirmation in Opposition, Police Accident Report). The Claim was served and filed on April 13, 2011. That same date, defendant returned the Claim to claimants' counsel with a covering letter stating: "Pursuant to CPLR Rule 3022, the defendant is electing to treat the enclosed document received on today's date as a nullity and is hereby rejecting and returning it to you for the following reasons: it is unverified [box checked]" (Ex. B to Notice of Motion). Counsel advises that his office was "perplexed" and he called and told someone at the Attorney General's office that "there must have been a mistake" (Affirmation in Support, ¶ 8).
Defendant's answer - containing the affirmative defense at issue - was served May 18, 2011. Some months later, in connection with preparing for pretrial disclosure, counsel learned from a conversation with the assistant attorney general what should have been apparent from the rejection letter and the affirmative defense; i.e., that defendant was "in fact rejecting our claim as unverified, as [it] deemed the language used in our verification as insufficient" (id., ¶ 9). The instant motion seeking an order striking the defense ensued.
Court of Claims Act § 11(b) requires that a claim "be verified in the same manner as a complaint in an action in the supreme court." In Lepkowski v State of New York (1 NY3d 201) the Court of Appeals held that "there is no basis for treating an unverified or defectively verified claim or notice of intention any differently than an unverified or defectively verified complaint is treated under the CPLR in Supreme Court. Section 11(b) therefore embraces CPLR 3022's remedy for lapses in verification." (1 NY3d 201, 210). Contrasted with the substantive pleading requirements of section 11(b) - the primary focus of the Lepkowski decision - compliance with which is a predicate to the court's subject manner jurisdiction and therefore may be raised at any point in the litigation,are not dependent on any action or inaction on the part of defendant and may not be waived, the Court held that "lapses in verification" in the Court of Claims are treated the same as in Supreme Court as set forth in CPLR 3022. An unverified or defectively verified claim is unrelated to the subject matter jurisdiction of the court but rather depends on defendant following a strictly defined course of conduct in response to an unverified claim or the defense is waived.
See Kolkacki v State of New York, 8 NY3d 277, where the issue of the court's subject matter jurisdiction, arising from the failure to comply with the substantive pleading requirements of section 11(b), was first raised by defendant at the commencement of trial, and where the formal dismissal motion based on the contention of lack of subject matter jurisdiction was not made until after the court had issued its decision finding liability (Kolnacki v State of New York, 10 Misc 3d 781).
See Lepkowski, 1 NY3d 201, 209-210, fn. 5. Compare D'Angelo v State Ins. Fund, 48 AD3d 400, 402: "a court's lack of subject matter jurisdiction may not be waived and may, in fact, be raised at any time"; Robinson v Oceanic Steam Nav. Co., 112 NY 315, 324).
CPLR 3022 provides that if a recipient who is entitled to a verified pleading is served with an unverified pleading, it may elect to treat it as a nullity "provided he [sic] gives notice with due diligence" of the intent to treat it as a nullity.Here, defendant returned the unverified claim the same day it was received, with the accompanying cover letter. Claimants, in support of their motion, do not contend that the pleading was not rejected with due diligence, they contend that the covering letter did not provide adequate notice of the reason for the rejection,; i.e., that it did not "state the defects relied upon with sufficient specificity that the party whose pleading is rejected has a reasonable opportunity to cure the defect (SLG Graybar v Hannaway Law Offs., 182 Misc 2d 217, 222 [Civ Ct, NY County 1999]; Westchester Life v Westchester Mag. Co., 85 NYS2d 34 [Sup Ct, NY County 1948])." (Matter of Steele v State of New York, 19 Misc 3d 766, 769).
Preservation of the verification defense in the Court of Claims requires assertion of the defense in the answer in addition to compliance with the prompt rejection requirements of CPLR 3022 in order to avoid a waiver, pursuant to amendment of Court of Claims Act § 11(c) subsequent to Lepkowski (Scott v State of New York, 46 AD3d 664; Rister v City University of New York, 20 Misc 3d 195). The statute requires that the defense be set forth "with particularity" in the answer or a pre-answer motion or it is waived.
Claimants maintain that defendant "deemed the language used in our verification as insufficient" and that the notice should have stated "it is not properly verified" and should have "state[d] with specificity what verification language was missing" (Affirmation in Support, ¶¶ 9, 15). Defendant's position, as set forth in its letter of rejection, is that the claim was simply not verified and that the notice stating that fact was therefore sufficient.
The Claim consists of four pages. The first two pages contain claimants' substantive allegations and conclude with the date of the pleading, April 12, 2011. Page three consists, in its entirety of the signature of Edna Destin, a notary's acknowledgment of the signature, a second signature of Edna Destin and a second acknowledgment of the signature. Page four contains the signature of Tahinah Ceus and a notary's acknowledgment of the signature. There is no verification whatsoever, the words verified or verification do not appear and there is no indication whatsoever in the language of the acknowledgments (as there never is) of the hallmark of a verification: that the person signing understands that she is under oath and swearing to the truth of the allegations of the pleading. The only person under oath in an acknowledgment, as in the acknowledgments appended to this Claim, is the notary, swearing as to the identity of the person signing the document in question. Identity is the issue addressed by an acknowledgment, truth is the issue addressed by a verification. They are totally distinct things, having in common only the fact that a notary is involved. There was no requirement that defendant notify counsel of how the purported verification was deficient, because there was no verification whatsoever. Simply typing irrelevant words at the end of a pleading does not create a "defective verification" requiring specification and instruction from defendant as to how to cure the defect, as claimants contend. It is not, as contended by counsel, that defendant had a problem with the language used, it is that the Claim was not verified, as alleged in defendant's notice. As the defense was adequately preserved by prompt rejection with due diligence accompanied by an adequate notice of the defect, there is no basis to strike it from the answer and the motion is denied insofar as it seeks that relief.
Actually, counsel titled the document a Notice of Claim and ended it with the statement that it was presented "for adjustment and payment" and that if such was not done, claimants intended to commence an action. Apparently, counsel confused Court of Claims pleading and procedure with that applicable in other courts in actions against municipalities, a precursor to further confusion.
Notwithstanding the above, defendant has not moved or cross-moved to dismiss the Claim and since the issue does not implicate the court's jurisdiction over this Claim, it continues. Nevertheless, the court will address claimants' alternate request for relief pursuant to § 10(6), even though this Claim is still active, because the lack of a verification combined with adequate preservation of the defense means that this claim would be subject to dismissal if and when defendant elects to so move.
Court of Claims Act § 10 (6) grants the court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including whether claimants' delay in properly proceeding was excusable, whether defendant had timely notice of and the opportunity to investigate the pertinent allegations, whether defendant would suffer substantial prejudice should the motion be granted, whether the claim has the appearance of merit and whether claimants have an alternate remedy.
The court agrees with defendant that claimants' delay in properly proceeding - occasioned by counsel's failure to appreciate the difference between an acknowledgment and a verification - is not excusable. The existence of an alternate remedy in the form of an action against the driver of defendant's vehicle does not militate against their election to instead proceed in the Court of Claims and is not a relevant factor to the court's decision. The balance of the statutory factors strongly weigh in favor of granting the application. Under the circumstances of this case, where a State driver allegedly drove into the rear of a vehicle stopped in traffic and a claim (albeit unverified) was served and filed within 90 days, defendant's assertion that the claim clearly lacks merit is absurd. The police report supports claimants' factual allegations, notwithstanding that the officer was not aware of any injuries, and defendant, thankfully, does not contend that service of an acknowledged claim rather than a verified claim prejudiced its ability to investigate. Denial of late filing under these circumstances would be a clear abuse of discretion. Issues relating to the extent of claimants' injuries are properly addressed by motion practice following the conclusion of disclosure.
To summarize, Claim No. 119720 is, at this point, properly before the court and there is no basis for the court to sua sponte dismiss the claim, relief that defendant does not request and which is not required as subject matter jurisdiction is not involved. The claim is, however, subject to the defense of lack of verification which has been preserved, but not acted upon. Defendant may or may not elect to "perfect" that defense by moving to dismiss on such ground. Claimants have properly addressed this situation by moving for relief pursuant to § 10 (6), an application that the court finds meritorious and is granted. Accordingly, claimants are directed to serve and file an Amended Claim, identical to the original Claim but duly verified, within 30 days of the filing date hereof.
April 11, 2012
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion, Affirmation and Exhibits
Affirmation in Opposition and Exhibits
Reply (titled "Sur-Reply") Affirmation