Opinion
# 2017-029-010 Claim No. NONE Motion No. M-89773
03-17-2017
EVA ORDENTLICH AND SHLOMO ORDENTLICH v. THE STATE OF NEW YORK
HERZFELD & RUBIN, P.C. By: Howard L. Wexler, Esq. and Howard S. Edinburgh, Esq. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Kevin P. Ahrenholz, Assistant Attorney General
Synopsis
Claimant’s motion for leave to amend timely served notice of intention by adding a verification was granted pursuant to Court of Claims Act § 9(8) and CPLR 2001. The court found that the failure to verify a notice of intention or a pleading is not an incurable jurisdictional defect.
Case information
| UID: | 2017-029-010 |
| Claimant(s): | EVA ORDENTLICH AND SHLOMO ORDENTLICH |
| Claimant short name: | ORDENTLICH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-89773 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant’s attorney: | HERZFELD & RUBIN, P.C. By: Howard L. Wexler, Esq. and Howard S. Edinburgh, Esq. |
| Defendant’s attorney: | ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL By: Kevin P. Ahrenholz, Assistant Attorney General |
| Third-party defendant’s attorney: | |
| Signature date: | March 17, 2017 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants move for leave to amend a notice of intention to make a claim or, in the alternative, for leave to file a late notice of intention to make a claim pursuant to Court of Claims Act § 10(6). Defendant opposes.
The notice of intention (“Notice”) was served on defendant “on or about November 21, 2016” (Ahrenholz Aff., ¶ 6). That same day, defendant sent claimants’ counsel a letter rejecting the Notice as unverified, and electing to treat it as a nullity pursuant to CPLR 3020 and 3021 (Exh. G). The Notice had been signed by Eva and notarized, but did not contain a “statement under oath” (CPLR 3020[a]). On January 5, 2017, claimants served defendant a verified amended notice of intention as an exhibit to the motion (Exh. A; Ahrenholz Aff., ¶ 6). The only amendment that had been made to the Notice was the addition of a verification. The motion was served by certified mail.
The Notice and the Amended Notice allege that on August 24, 2016, while claimant Eva Ordentlich (“Eva”) was crossing State Road 59 in Ramapo with her sister Shaindy Mashinsky, the latter was struck and killed by a vehicle driven by Shlomo Lenchitz. The fatal incident occurred approximately 25 feet east of Augusta Drive at approximately 8:58 p.m. Attached exhibits included, inter alia, a lengthy pedestrian safety study for State Routes 59 and 45 prepared with the help of the New York State Department of Transportation (Exh. C). Claimants state their intention to file a claim against defendant for negligence and other causes of action arising from “known and long-standing conditions” respecting pedestrian safety (Exhs. A and B). Eva seeks damages for emotional and psychological injuries resulting from her being in the “zone of danger” and witnessing her sister being struck and killed. Claimant Shlomo Ordentlich (“Shlomo”), Eva’s husband, seeks damages for “loss of comfort, services, society and consortium” (id.).
Claimants argue that the initial Notice contained a “defective” verification, it should not have been rejected and the court “has routinely granted motions for leave to amend a notice of intention to make a claim, where, as here, that notice was rejected due to an improper verification” (Edinburgh Aff., ¶ 7). Defendant argues that a defectively verified pleading is treated as an unverified pleading, lack of a verification is a jurisdictional defect and claimant is not permitted to amend a claim to cure a jurisdictional defect.
The verification was absent from Eva’s Notice, not defective. Court of Claims Act § 11(b) provides, in relevant part, “The claim and notice of intention to file a claim shall be verified in the same manner as a complaint in an action in the supreme court.” The form and content of verifications of Supreme Court complaints (as well as other pleadings) are governed by CPLR 3020 and 3021. A verification is “a statement under oath that a pleading is true to the knowledge of the deponent, except as to those matters alleged on information and belief and that, as to those matters, he believes it to be true” (CPLR 3020[a]). The Notice claimant served on defendant contained only a notary’s certified “acknowledgment” of claimant’s signature, not a statement under oath.
The court disagrees that the failure to verify a pleading is an incurable jurisdictional defect. In Lepkowski v State of New York (1 NY3d 201, 210 [2003]) the Court of Appeals (in dicta) resolved the lower courts’ confusion over the consequences of a claimant submitting an unverified claim. The Court of Appeals concluded that section 11 (b) embraces not only the requirements of the CPLR as to the form of a verification, but also the remedy for lapses in verification (CPLR 3022), which provides:
A defectively verified pleading shall be treated as an unverified pleading. Where a pleading is served without a sufficient verification in a case where the adverse party is entitled to a verified pleading, he may treat it as a nullity, provided he gives notice with due diligence to the attorney of the adverse party that he elects so to do.
This is exactly what defendant did here. If defendant had failed to follow the procedure set forth in CPLR 3022, then any objection to the absence or deficiency of a verification would have been waived (see id.). Subsequent to the decision in Lepkowski, Court of Claims Act § 11 was amended to provide the State with a second opportunity to waive objections to the absence or deficiency of a verification. The amendment added language providing that any objection or defense based on a claimant’s failure to comply with “the verification requirements as set forth in subdivision b of this section and rule three thousand twenty-two of the civil practice law and rules” is waived unless raised, with particularity, in the answer or in a pre-answer dismissal motion (Court of Claims Act § 11[c][iii]; [L. 2005, Ch. 460 (eff Aug. 9, 2005)]; see Scott v State of New York, 18 Misc 3d 455 [Ct Cl 2006] [denying motion to dismiss for failure to verify claim where defendant failed to follow CPLR 3022]).
Defendant’s argument, that the court is without jurisdiction because the Notice lacked a verification, is also at odds with the purpose of the requirement of CPLR 3022 that a rejecting party give notice of the defect in the verification with due diligence and with “sufficient specificity” - to ensure that “the party whose pleading is rejected has a reasonable opportunity to cure the defect” (Matter of Steele of State of New York, 19 Misc 3d 766 [Ct Cl 2008] [denying motion to dismiss where letter rejecting verification did not specify what language was missing that rendered it defective]). Amendment seems to be an appropriate method for curing a defect like an absent verification. Indeed, if a notice of intention were a pleading, claimant would be permitted by statute to amend it once without leave of court within certain specified time periods (see CPLR 3025[a]).
The court concludes that granting the motion would be a proper and just exercise of its power under Court of Claims Act § 9(8) to amend or correct errors in pleadings and other filings “in furtherance of justice,” as well as its power under CPLR 2001 to permit an omission or defect to be corrected. Defendant has not been prejudiced as the extremely detailed Notice clearly provided “sufficient detail to enable the State to investigate,” which is what Court of Claims Act §11(b) requires for notices of intention (Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001]). As Judge Hard stated in Cannon v State of New York, 163 AD2d 623 (Ct Cl 1994), “A notice of intention which satisfies the purpose of the statute will be sufficient to obtain jurisdiction over the State” (id. at 626, citing Williams v State of New York, 77 Misc 2d 396 [Ct Cl 1974]).
It is not necessary for the court to decide claimants’ alternative request for leave to file a late notice of intention, or the merit of a claim that has not yet been filed. Accordingly, claimants’ motion for leave to amend their notice of intention to add a verification is granted nunc pro tunc.
March 17, 2017
White Plains , New York
STEPHEN J. MIGNANO
Judge of the Court of Claims Papers considered: Notice of Motion, Affidavit and Exhibits Affirmation in Opposition and Exhibits Reply Affidavit and Exhibit