Opinion
Claim No. 133547
11-08-2023
Angel Valverde, Claimant, v. The State of New York, Defendant.
For Claimant: ARANDA LAW FIRM, PLLC By: Sofia Aranda, Esq. For Defendant: LETITIA JAMES, New York State Attorney General By: Dian Kerr McCullough, Assistant Attorney General
For Claimant:
ARANDA LAW FIRM, PLLC
By: Sofia Aranda, Esq.
For Defendant:
LETITIA JAMES, New York State Attorney General
By: Dian Kerr McCullough, Assistant Attorney General
ZAINAB A. CHAUDHRY, Judge of the Court of Claims
The issue presented in this claim involves the verification requirement of Court of Claims Act (CCA) § 11 (b), and whether the remedy of a nunc pro tunc amendment may be available to a claimant who has served a defectively verified paper which was properly rejected by the defendant in accordance with CPLR 3022.
Claimant Angel Valverde, an incarcerated individual in the custody of the New York State Department of Corrections and Community Supervision, filed this claim on August 28, 2019, alleging that claimant was assaulted by multiple corrections officers at Sing Sing Correctional Facility on August 29, 2018. The claim asserts causes of action for: (1) assault and battery; (2) negligent hiring, training, and retention; (3) intentional infliction of emotional distress; (4) negligent infliction of emotional distress; and (5) violations of claimant's due process rights under the New York Constitution resulting in wrongful confinement. Before filing and serving the claim, claimant's attorney served a Notice of Intention to File a Claim (Notice of Intention or Notice) upon the Attorney General, on November 26, 2018. Because the Notice was verified by the attorney and the verification page attached to the Notice did not indicate why it was verified by the attorney rather than claimant, defendant returned the Notice the same day it was received. Defendant's letter indicated that the Notice was being rejected as a nullity because "the verification [did] not say why it [was] not being made by the party; as required by CPLR 3020" (McCullough Affirm, Exh A). Thereafter, on January 25, 2019-149 days after the claim's accrual-claimant served defendant with a document entitled "Corrected Notice of Intention to File a Claim," which contained a corrected verification page but was otherwise identical to the initial Notice (id., Exh B).
Defendant now moves to dismiss the claim as untimely (Motion No. M-98465), arguing that no valid Notice of Intention was ever timely served upon it. Defendant argues that the first Notice, although served on defendant within the requisite 90 days of accrual, was defectively verified, promptly rejected by defendant as a nullity, and returned to claimant as required by CPLR 3022. Defendant further asserts that claimant's Corrected Notice-although properly verified-was not served within 90 days of accrual as required by CCA §§ 10 and 11 and, thus, did not extend the time to serve and file the claim, rendering it untimely. Finally, defendant also argues that even if the initial Notice of Intention was proper, thereby extending claimant's time to file and serve the claim, all intentional tort-based causes of action asserted in the claim are time-barred because claimant did not serve the claim upon the Attorney General until September 3, 2019, beyond the one-year statute of limitations (see CPLR 215 [3])
Defendant preserved all of these defenses with particularity in its answer, as required by CCA § 11 (c).
Claimant opposes defendant's motion and simultaneously moves for permission to file a late claim pursuant to CCA 10 (6) with respect to the causes of action for assault and battery, and intentional infliction of emotional distress (Motion No. M-98745). Regarding the defective verification, the gravamen of claimant's argument is that an irregular or defective verification does not rise to the level of a jurisdictional defect and should be disregarded. Claimant further contends that, except for a single sentence in the verification, the initial Notice of Intention provided all of the relevant information required by CCA § 11 (b) and was sufficient to allow defendant to investigate the allegations set forth therein. Citing CPLR 2001, claimant thus asserts that defendant was not prejudiced by the defective verification and that amendment of the Notice of Intention nunc pro tunc should be permitted, as it was in Ordentlich v State of New York (173 A.D.3d 885 [2d Dept 2019])-and claimant expressly asks for such relief.
Beginning with the applicable statutory provisions, CCA § 11 (b) states that a claim or notice of intention to file a claim "shall be verified in the same manner as a complaint in an action in the supreme court." Complaints filed in Supreme Court are governed by CPLR 3020 and 3021. And as relevant here, where a claimant is not in the county where the claimant's attorney has an office, the verification may be made by the attorney instead of the claimant (see CPLR 3020[d] [3]). Under CPLR 3021, however, such a verification must state "the reason why it is not made by the party," among other requirements (CPLR 3021; see Matter of Giambra v Commissioner of Motor Vehs. of State of NY, 46 N.Y.2d 743, 745 [1978]). As further relevant here, the Court of Appeals has stated in dicta that CCA § 11 (b) "embraces CPLR 3022's remedy for lapses in verification" (Lepkowski v State of New York, 1 N.Y.3d 201, 210 [2003]). Thus, as in Supreme Court practice, the remedy for a defendant in receipt of a defectively verified claim or notice of intention to file a claim in a Court of Claims action is to follow the procedures of CPLR 3022 by rejecting the document as a nullity and giving the opposing party notice of such rejection and the reasons therefor, with due diligence (see Lepkowski, 1 N.Y.3d at 210, citing Matter of Miller v Board of Assessors, 91 N.Y.2d 82, 86 [1997]).
Here, there is no dispute that the verification page of the initial, timely Notice of Intention did not indicate-as the later-served Corrected Notice did-that it was made by the attorney in lieu of claimant because "claimant [was] not in the county where [the attorney] has her office" (McCullough Affirm, Exhs A & B). Nor is there any dispute that defendant promptly rejected the initial Notice with an explanation of its reason for doing so, as required by CPLR 3022, and preserved the defense with particularity in its Answer (CCA § 11 [c] [iii]; see also Gillard v State of New York, 28 Misc.3d 1139, 1142 [Ct Cl 2010]). The question not answered by Lepkowski's limited guidance, however, is how a claimant may rectify such a deficiency in verification.
In Ordentlich v State of New York, the Second Department held that an unverified notice of intention to file a claim that had been treated as a nullity and rejected by the defendant could subsequently be corrected, and that the Court of Claims had properly granted the claimants' motion to amend the notice nunc pro tunc (173 A.D.3d at 885-886). In its brief decision, the Second Department cited Lepkowski and CPLR 2001, and noted the trial court's finding that the defendant had not been prejudiced by the omission of the verification (see id. at 886; see also Keen v State of New York, UID No. 2022-059-002 [Ct Cl, Jan. 10, 2022] [Liccione, J.] [citing Ordentlich in allowing amendment of a notice of intention to file a claim nunc pro tunc to add previously missing verification]). Under CPLR 2001, a court may, in the exercise of its discretion, permit litigants to correct "a mistake, omission, defect or irregularity... upon such terms as may be just, or if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded" (CPLR 2001; see also Grskovic v Holmes, 111 A.D.3d 234, 243-244 [2d Dept 2013] [discussing broad judicial discretion in application of CPLR 2001]). CCA § 9 (8) similarly provides that the Court of Claims has the power to "amend, correct, or modify any process, claim, order or judgment, in furtherance of justice for any error in form or substance" (CCA § 9 [8]). In granting the relief requested in Ordentlich, the underlying Court of Claims decision relied on both CPLR 2001 and CCA § 9 (8) (see UID No. 2017-029-010 [Ct Cl, March 17, 2017] [Mignano, J.], citing Williams v State of New York, 77 Misc.2d 396 [Ct Cl 1974]).
However, Ordentlich 's holding appears to be at odds with the well-established principle that, unlike papers commencing actions in Supreme Court which are to be afforded a liberal construction (see CPLR 3026), the statutory requirements of the Court of Claims Act conditioning the right to maintain an action against the State are jurisdictional and must be strictly construed (see Kolnacki v State of New York, 8 N.Y.3d 277, 280-281 [2007]; see also Sacher v State of New York, 211 A.D.3d 867, 873-874 [2d Dept 2022]). Indeed, in contrast to the Second Department's approach in Ordentlich, the case law regarding missing or defective verifications in the Third Department, as well as the majority of decisions in the Court of Claims, has been unforgiving and in line with how other pleading deficiencies under CCA § 11 (b) are treated-i.e., as defects "depriv[ing] the Court of Claims of subject matter jurisdiction" and requiring dismissal of a claim, and which cannot be cured by an untimely amendment or correction (Flowers v State of New York, 175 A.D.3d 1724, 1726 [3d Dept 2019]; see Graham v Goord, 301 A.D.2d 882 [3d Dept 2003]; Givens v State of New York, UID No. 2005-028-557 [Ct Cl, Aug. 2, 2005] [Sise, P.J.] [noting that a claimant's "only remedy" in the case of a properly rejected verification "is to commence a new claim, which necessarily includes obtaining a new claim number, filing the properly verified claim, paying the filing fee and making proper service of same upon the (d)efendant"]; Rivera v State of New York, UID No. 2020-038-555 [Ct Cl, Oct. 5, 2020] [DeBow, J.]; see also Buonincontro v State of New York, UID No. 2023-059-012 [Ct Cl, April 12, 2023] [Liccione, J.]; Caldwell v State of New York, UID No. 2021-015-061 [Ct Cl, June 4, 2021] [Collins, J.]; Dinkins v State of New York, UID No. 2022-051-061 [Ct Cl, Nov. 7, 2022] [Martin, J.]; Nunez-Perez v State of New York, UID No. 2021-054-008 [Ct Cl, Mar. 22, 2021] [W. Rivera, J.]; accord Hogan v State of New York, 59 A.D.3d 754, 755 [3d Dept 2009] [holding that jurisdictionally defective claim that failed to set forth the total sum claimed as required under CCA § 11 [b] "cannot be cured through an amendment"). Ordentlich did not grapple with this inherent tension or the departmental conflict, and further clarification on the question from the appellate courts of this State-particularly in light of the limited practical guidance provided by Lepkowski -appears needed.
Of further note with respect to this conflict in the existing case law, in support of its holding permitting an amendment to cure the verification defect, the Court of Claims in Ordentlich relied on Epps v State of New York (199 A.D.2d 914 [3d Dept 1993]), stating that a notice of intention to file a claim "should be treated with less stringent standards than the claim itself" (Ordentlich v State of New York, UID No. 2017-029-010 [Ct Cl, March 17, 2017] [Mignano, J.]). However, the Second Department has recently repudiated Epps' reliance on such a distinction in another CCA § 11 (b) context (see Sacher, 211 A.D.3d at 873-874).
Curiously also, the Third Department in Flowers cited Ordentlich in support of a general proposition about CCA § 11 (b)'s substantive conditions upon the State's waiver of sovereign immunity, but without addressing Ordentlich's contrary holding (see Flowers, 175 A.D.3d at 1725).
Even without such available guidance, on the one hand, the Court notes that the case at bar involves more compelling circumstances than those presented-and excused-in Ordentlich, where there was a failure to include a verification altogether (see 173 A.D.3d at 885). Here, the information missing from the verification was in fact contained within the notice of intent to file the claim. Although the explanation regarding why the original Notice of Intention had been verified by the attorney in this case rather than the incarcerated claimant was not expressly memorialized in the verification, the reason was plainly provided in the Notice's introductory paragraphs. These first couple of paragraphs informed defendant that claimant was incarcerated at Downstate Correctional Facility and that claimant's attorney was located in the City of New York:
The post office address of the claimant herein is: Angel Valverde #11 A 5718 Downstate Correctional Facility, P.O. Box F, Fishkill, NY 12524-0445.
Claimant is represented by Sofia Aranda Esq., Aranda Law Firm PLLC, 11 Broadway, Suite 615, New York, NY 10004(McCullough Affirm, Exh A). These statements, part of the same document as the verification, unquestionably informed defendant that claimant was not-and, indeed, could not-be "in the county where the attorney [had her] office" and, as such, why the verification would have been made by the attorney rather than by claimant (CPLR 3020[d] [3]). Although the verification contained in the original Notice of Intention was technically deficient by not including the requisite sentence reiterating the point in the Notice's verification page, defendant does not claim it was prejudiced by this oversight (see Ordentlich, 173 A.D.3d at 886), nor was it required to "ferret out or assemble [this] information" (Lepkowski, 1 N.Y.3d at 208), which was apparent on the face of the Notice (see Giambra, 46 N.Y.2d at 745 [stating in dicta that verification of petition by an attorney complied with mandate of CPLR 3021 to the extent that "the attorney properly explained in the petition the reasons why he rather than petitioners was verifying it" (emphasis added)]; see also Kreiling v Jayne Estates, 51 Misc.2d 895, 897 [Sup Ct, Suffolk County 1966] [ignoring defect in answer's verification by the defendant's attorney where "affirmation-verification failed to state the reason it was not made by the party," but court could "tell simply by looking at the address given for the defendant in an allegation of the complaint admitted by the attempted answer that defendant's offices are in a county other than where its attorney has his office"]). Thus, the Notice of Intention initially served upon the Attorney General in this case was unlike other instances where a notice of intention would raise a concern or question as to why the verification was not made by the party (see Caldwell, supra [the claimant and verifying attorney were both located in Kings County]; Buonincontro, supra [the claimant and verifying attorney were both located in Nassau County]).
Although exceedingly rare, it would not be the only time technical defects implicating CCA 11 § (b) have been allowed to be cured via amendment (see Matter of O'Shea v State of New York, 36 A.D.3d 706 [2d Dept 2007] [holding that, on the unique facts presented, denial of State's motion to dismiss premised on section 11 (b) pleading deficiencies and trial court's allowance of an amended claim to cure such deficiency was proper where-although claim failed to set forth the nature of the injury or the particulars of the alleged negligence-proposed claim on prior late claim motion provided defendant with timely notice of all relevant facts and allegations]; Balkis v City Univ. of NY, UID No. 2014-049-043 [Ct Cl, July 25, 2014] [Weinstein, J.] [allowing amendment of claim to cure section 11 (b) deficiency upon State's motion to dismiss where claim contained wrong address of place of accrual, but correct information regarding address was set forth at other places within the claim]; see also Lockley v State of New York, 41 A.D.3d 439 [2d Dept 2007] [allowing amendment of claim under CCA § 9 (8) to cure inconsistencies in claim when amount of damages stated and allegations of negligence differed from proposed claim court had previously given the claimant permission to file, notwithstanding fact that court could not allow filing of a new claim at that time for statute of limitations reasons]).
On the other hand, although these circumstances appear on the surface to present a strong case for granting claimant a nunc pro tunc amendment as in Ordentlich, allowing such an amendment here would serve no purpose in furtherance of the interests of justice under either CPLR 2001 or CCA § 9 (8) because, as discussed below, the claim would nevertheless be time-barred notwithstanding any amendment. To be sure, Ordentlich is the governing appellate precedent in this Department and, thus, the remedy of a nunc pro tunc amendment to correct a missing or defective verification may theoretically be available to a claimant in this jurisdiction. However, the Second Department's decision in Ordentlich makes clear that the question of whether a nunc pro tunc amendment regarding verification may be warranted in a particular case is governed by CPLR 2001 (see 173 A.D.3d at 886), which grants the trial court "a broad[ ] degree of judicial discretion" in considering an application to correct such a mistake (Grskovic v Holmes, 111 A.D.3d at 243).
In Ordentlich, the claim had not yet been filed, and the claimants' application for leave to amend their notice of intention to file a claim nunc pro tunc was made less than two months after the defendant rejected the notice on the same day it had been received (see 173 A.D.3d at 885).
Here, even with a nunc pro tunc amendment to the verification of the initial Notice of Intention, which was served on November 26, 2018, claimant would still have had to serve and file the claim by August 29, 2019 in order to comply with CCA § 10 (3-b) as to the causes of action premised upon intentional tort that were included in the Notice-namely, the assault and intentional infliction of emotional distress causes of action. Although the filing of the claim with the Court on August 28, 2019 met this requirement, the Attorney General was not served with the claim until September 3, 2019 (see McCullough Affirm, Exh C), rendering the claim untimely to this extent (see CCA § 11[a][i] [both the act of filing and act of service must occur within the applicable time period, and service is not complete until the claim is received by the Attorney General]). Indeed, claimant concedes that so much of the claim is untimely (see Aranda Affirm in Supp of Mot to File a Late Claim, at 3).
Any cause of action sounding in intentional infliction of emotional distress against the State would also be barred as a matter of public policy (see Augat v State of New York, 244 A.D.2d 835, 837 [3d Dept 1997], lv denied 91 N.Y.2d 814 [1998]; see also Ellison v City of New Rochelle, 62 A.D.3d 830, 833 [2d Dept 2009]).
In addition, to the extent the claim contains other causes of action, they also are untimely, and claimant provides no argument otherwise. Neither the negligence-based causes of action or the claim sounding in wrongful confinement were alleged with any particularity in either the original or corrected Notices of Intention (see CCA § 11 [b] [claim or notice of intent to file a claim must include, among other substantive pleading requirements, description of the "nature of the claim"]; Martinez v State of New York, 215 A.D.3d 815, 817 [2d Dept 2023] [stating that claim or notice should indicate "how the State was negligent, or enough information so that how the State was negligent can be reasonably inferred" (internal quotation marks omitted)]). Although neither party addresses this issue, "claimant's failure to sufficiently particularize a notice of intention to file a claim is a nonwaivable, jurisdictional defect," and the Court must thus address it sua sponte (Cendales v State of New York, 2 A.D.3d 1165, 1168 [3d Dept 2003], citing Phillips v State of New York, 237 A.D.2d 590, 590 [2d Dept 1997] and Finnerty v New York State Thruway Auth., 75 N.Y.2d 721, 722-723 [1989]; see Czynski v State of New York, 53 A.D.3d 881, 883 [3d Dept 2008] [comparing CCA § 11 (b) with CCA § 11 (c)], lv denied 11 N.Y.3d 715 [2009]).
Claimant's bare factual description in the Notices of an alleged intentional assault by corrections officers was insufficient to put the State on notice that the hiring, training, retention, and supervision of its employees would be called into question, or of the existence of any other possible negligence cause of action (see Peterson v State of New York, UID No. 2020-053-538 [Ct Cl, Oct. 13, 2020] [Sampson, J.]; see also Smith v State of New York, UID No. 2018-032-033 [Ct Cl, June 15, 2018] [Hard, J.]; Thompson v State of New York, UID No. 2022-040-054 [Ct Cl, Sept. 20, 2022] [McCarthy, J.]). The same is true for the allegations in the claim sounding in wrongful confinement (see Nelson v State of New York, 67 A.D.3d 1142, 1143 [3d Dept 2009]). Because these additional causes of action asserted in the claim were not preserved by the Notices, claimant's time to file and serve a claim alleging such causes of action beyond the 90-day period normally afforded under the Court of Claims Act was not extended (see Czynski, 53 A.D.3d at 882-883; see also Bowles v State of New York, 208 A.D.2d 440, 443 [1st Dept 1994]; Cendales, 2 A.D.3d at 1167-1168).
In sum, in view of the totality of the circumstances presented in this case, the Court declines to exercise its discretion to grant claimant's request to amend the attorney verification nunc pro tunc because it would be an exercise in futility to do so.
Finally, claimant's application, in the alternative, for late claim relief (Motion No. M-98745) is unavailing. Such relief is not available to resurrect any of the intentional tort-based causes of action because a motion for permission to file and serve a late claim must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the [CPLR]" (CCA § 10 [6]). As noted above, since this claim accrued on August 29, 2018, when the alleged assault by corrections officers took place, any application for relief premised upon intentional tort would have had to be filed within one year of such time as set forth in CPLR 215 (3). Claimant's motion was filed on November 9, 2022, well beyond that one-year statute of limitations and, therefore, must be denied (see Hernandez v State of New York, 39 A.D.3d 709 [2d Dept 2007]). Notably, claimant's late claim application does not purport to seek such relief with respect to the negligence-based causes of action. But even if it had, such claims would also be beyond the remedial reach of CCA § 10 (6) because they were outside the three-year limitations period of CPLR 214 at the time the motion was made-even accounting for the time added by the Executive Orders providing for the Covid-19 toll (see Williams v Ideal Food Basket, LLC, 219 A.D.3d 917, 918 [2d Dept 2023], citing Brash v Richards, 195 A.D.3d 582 [2d Dept 2021]).
Nor does claimant's motion for late claim relief make mention of the wrongful confinement claim. Notably, it appears that this claim, as well as a failure to train claim, have been resolved in defendant's favor in claimant's related federal action (see Valverde v Folks, 2023 WL 2439876 [2d Cir 2023], affg 2020 WL 5849515 [SDNY 2020] and 2022 WL 836310 [SDNY 2022]).
Accordingly, it is hereby
ORDERED that defendant's motion to dismiss (M-98465) is GRANTED, and the claim is DISMISSED in its entirety; and it is further
ORDERED that claimant's motion for permission to file a late claim (M-98745) is DENIED.
Albany, New York
Papers Considered:
1) Notice of Motion to Dismiss;
2) Affirmation of Assistant Attorney General Dian Kerr McCullough, with Exhibits A-D;
3) Affirmation of Sofia Aranda, Esq., in Opposition and in Support of Application for Leave to Amend the Notice of Intention Nunc Pro Tunc;
4) Notice of Motion to File a Late Claim;
5) Affirmation of Sofia Aranda, Esq., in Support of Motion to File a Late Claim, with Exhibits 1-2;
6) Claim, filed August 28, 2019; and
7) Answer, filed October 9, 2019.