Opinion
# 2019-040-009 Claim No. 131704 Motion No. M-92956
01-25-2019
KATRINA WESTON v. THE STATE OF NEW YORK
SIMON & SIMON, P.C. By: David Roer, Esq. LETITIA JAMES Attorney General of the State of New York By: William E. Arnold, IV, Esq., AAG
Synopsis
That portion of the State's Motion to Dismiss the Claim for lack of verification denied. That portion of the State's Motion to Dismiss based upon lack of standing granted.
Case information
| UID: | 2019-040-009 |
| Claimant(s): | KATRINA WESTON |
| Claimant short name: | WESTON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131704 |
| Motion number(s): | M-92956 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | SIMON & SIMON, P.C. By: David Roer, Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: William E. Arnold, IV, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 25, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the portion of Defendant's Motion to dismiss the Claim based upon lack of subject matter jurisdiction, pursuant to CPLR 3211(a)(2), for failure to comply with the verification requirements of Court of Claims Act § 11, is denied, and the portion of the Motion to dismiss the Claim based upon lack of standing, pursuant to CPLR 3211(a)(3), is granted.
This Claim, which was filed with the office of the Clerk of the Court on July 12, 2018, alleges that the Claim accrued on April 15, 2018 at 9:12 a.m. on the State Street ramp "from Rt 12 SB" in Utica, New York (Claim, ¶¶ 2, 3). It is further alleged that, due to a buildup of ice on the roadway, a vehicle driven by Anthony Johnson slid and struck a concrete barrier (id., ¶ 2). Ms. Weston was a passenger in the vehicle and sustained multiple injuries (id., ¶¶ 2, 5). The Claim was "filled out by Liberty Mutual [Insurance Company], carrier for the [D]efendant[,] Anthony Johnson" (id., p. 2). In addition, the Claim states that Liberty Mutual "is putting the State on notice of a [C]laim" (id., ¶ 2). The Claim was verified by Kelly Cyktich, "Claims Adjuster for Liberty Mutual/Defendant" (id., p. 2).
The State of New York seeks to dismiss the Claim on the basis that the Claim was not verified by Claimant or her authorized representative as required by Court of Claims Act § 11(b) and CPLR 3021. The failure to satisfy a pleading requirement of Court of Claims Act § 11(b) constitutes a jurisdictional defect that requires dismissal of the claim (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Finnerty v New York State Thruway Auth., 75 NY2d 721, 722 [1989]). 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 [S]upreme [C]ourt." 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 as to those matters he [or she] believes them to be true" (CPLR 3020). In order to avert waiver of an objection to an unverified or improperly verified claim under Court of Claims Act § 11(c)(iii), Defendant is required both to notify Claimant of the asserted defect with due diligence, and to raise its objection either in a pre-Answer motion to dismiss, or as an affirmative defense in its Answer (Gillard v State of New York (28 Misc 3d 1139, 1142 [Ct Cl 2010]; see 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]). Here, Defendant did not establish that it notified Claimant of the asserted defect with due diligence by returning the Claim, together with a notice of the nature of the defect (see Buckley v State of New York, UID No. 2017-040-117 [Ct Cl, McCarthy, J., Sept. 11, 2017]). Therefore, this portion of the Motion is denied.
The Court now addresses Defendant's argument that the Claim should be dismissed on the basis that the party that served and filed the Claim lacks standing to assert a Claim on behalf of Ms. Weston. The Court has not received any papers in opposition to Defendant's Motion.
In the cover letter sent to the Attorney General and filed with Court as an exhibit to the Claim, Liberty Mutual identified Simon & Simon, PC, as Ms. Weston's counsel. The Motion papers were served upon that firm's New York City office.
" 'Standing is a threshold issue requiring an actual legal stake in the outcome of the action, namely an injury in fact worthy and capable of judicial resolution' " (Matter of Ferran v City of Albany, 116 AD3d 1194, 1195 [3d Dept 2014], quoting Aiardo v Town of E. Greenbush, 64 AD3d 849, 851 [3d Dept 2009]). Here, it is without question that Ms. Weston could have served and filed a Claim against the State of New York for her injuries. However, she has not yet done so. Kelly Cyktich, on behalf of Liberty Mutual, has no standing to bring a Claim on behalf of Ms. Weston against the State of New York, as there is no indication that either Kelly Cyktich or Liberty Mutual is a duly authorized representative of Ms. Weston. Therefore, the Court finds and concludes that this action cannot be maintained (see Lichtenstein v State of New York, 93 NY2d 911, 913 [1999], affg 252 AD2d 921 [3d Dept 1998]). Here, the Claim was not properly commenced and, therefore, it is, hereby, dismissed (Thomas v State of New York, 57 AD3d 969, 970 [2d Dept 2008]).
January 25, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion to dismiss: Papers Numbered Notice of Motion, Affirmation in Support, and Exhibits Attached 1 Filed Papers: Claim, Answer