Opinion
# 2016-030-618 Claim No. 126496 Motion No. M-88890 Cross-Motion No. CM-89223
12-06-2016
RAMIRO TORRES v. THE STATE OF NEW YORK
RAMIRO TORRES, PRO SE HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: J. GARDNER RYAN ASSISTANT ATTORNEY GENERAL
Synopsis
Defendant's cross-motion to dismiss based upon lack of verification denied. Although defendant rejected and returned unverified pleading, failed to timely move or assert defense in answer.
Case information
| UID: | 2016-030-618 |
| Claimant(s): | RAMIRO TORRES |
| Claimant short name: | TORRES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126496 |
| Motion number(s): | M-88890 |
| Cross-motion number(s): | CM-89223 |
| Judge: | THOMAS H. SCUCCIMARRA |
| Claimant's attorney: | RAMIRO TORRES, PRO SE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN ATTORNEY GENERAL OF THE STATE OF NEW YORK BY: J. GARDNER RYAN ASSISTANT ATTORNEY GENERAL |
| Third-party defendant's attorney: | |
| Signature date: | December 6, 2016 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered on the pending motions:
1, 2 Notice of Motion for Default Judgment, Affidavit for Entry of Default by Ramiro Torres, Claimant, and attached papers
3, 4 Notice of Motion, Affirmation by J. Gardner Ryan, Assistant Attorney General, and attached exhibits
5 (Untitled Reply) by Ramiro Torres, Claimant, and attached exhibits
6 Filed paper: Claim
Ramiro Torres, an inmate proceeding pro se, alleges in his filed claim that on April 18, 2015 defendant's agents at Fishkill Correctional Facility used excessive force amounting to an assault and battery while acting in the scope of their employment. More specifically, he asserts that a named correction officer "[struck] claimant in the back of his head as claimant was horse-playing with another inmate", who claimant also names, used "a closed clenched fist", "knocked claimant to the ground" and left him "in a semi-conscious state." [Claim No. 126496, ¶¶ 3, 4]. Thereafter, other officers responded to the scene while claimant was already on the ground "in a semi-conscious state", and secured claimant's hands behind his back with mechanical restraints. [Ibid., ¶ 7]. Claimant's initial assailant then allegedly punched claimant on the left side of his face, causing Mr. Torres' head to strike the ground, and continued to "kick[]" claimant "in the left side of the mid-section of his torso." [Ibid., ¶ 9, 10]. Other officers escorted claimant to the regional medical facility, where claimant alleges the examining nurse was pressured by correction officers into failing to completely record claimant's description of the incident. Additionally, claimant alleges he was denied timely and adequate medical treatment.
A verified claim [see Civil Practice Law and Rules § 3021 ] was filed in the office of the Chief Clerk of the Court of Claims on July 24, 2015. Defendant acknowledges receiving a copy of an unsigned, unverified claim on July 3, 2015, by certified mail, return receipt requested. [Ryan Affirmation, ¶ 2]. A copy of the claim received was made and retained. [Id.]. The claim was rejected and returned to claimant on the same day, with the indication that pursuant to Civil Practice Law and Rules § 3022, the defendant was electing to reject and return the document received as a nullity because it was unverified. [Ibid., ¶ 2, Exhibit A].
Rule 3021 provides: "The affidavit of verification must be to the effect that the pleading is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true . . ."
Thereafter, claimant served defendant with the last page of the claim filed with the Clerk's office - containing his signature and an appropriate verification - in correspondence dated July 12, 2015, that was received on July 20, 2015 by certified mail, return receipt requested. [Ibid., ¶ 3, Exhibit B]. In correspondence from the Clerk's office dated August 11, 2015, defendant received notice that a claim had been filed as of July 24, 2015, and thereafter obtained a copy of the claim from the Clerk's office (noting that the filed copy contained a verification). [Ibid., ¶ 4, Exhibits C, D].
Defendant did not serve and file an answer.
Not having received an answer, Mr. Torres served a motion for a default judgment on June 23, 2016. Defendant then served its motion to dismiss on September 15, 2016.
As an initial matter, claimant has not established that he is entitled to a default judgment on the proofs offered, thus his motion is denied. Civil Practice Law and Rules §3215(f).
Defendant's motion to dismiss, premised upon a failure to timely serve a verified claim upon the Attorney General's office and to timely file such claim in the Office of the Chief Clerk of the Court of Claims, is also denied.
To be timely, a claim alleging intentional tort, negligence or medical malpractice causes of action, must be served and filed within 90 days of its accrual. Court of Claims Act §§ 10(3), (3-b). Assuming an accrual date of April 18, 2015, to have been timely, a verified claim should have been served and filed by July 17, 2015. Here it appears that the verified claim was not timely served and filed, although a claim missing the last page containing the verification was timely served by the proper method on July 3, 2015.
Defendant completed the first step of establishing the waiveable defense that it was not served with the verified claim that it is entitled to, by rejecting and returning the claim to Mr. Torres. Defendant did not, however, complete the second step of preserving its defense by either asserting the defense in an answer, or moving within the 40 day period within which an answer would be required to dismiss the claim. See Civil Practice Law and Rules §3022.
Civil Practice Law and Rules §3022 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."
In Court of Claims practice, however, certain omissions are jurisdictional, while others are subject to waiver. Court of Claims Act §11(b), setting forth the requirements for the claim, provides:
"The claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed. A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall include an inventory or itemized statement of fixtures, if any, for which compensation is claimed. The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated. 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."
As applicable here, Court of Claims Act §11(c) very specifically provides:
"Any objection or defense based upon a failure to comply with (i) the time limitation contained in section ten of this act, . . . or (iii) the verification requirements as set forth in subdivision b of this section 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, and if so waived the court shall not dismiss the claim for such failure."
In Lepkowski v State of New York, 1 NY3d 201, 207 (2003), the Court of Appeals made clear that some provisions of Court of Claims Act §11(b) are viewed as "jurisdictional" in that "section 11(b) places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) 'the nature of [the claim]'; (2) 'the time when' it arose; (3) the 'place where' it arose; (4) 'the items of damage or injuries claimed to have been sustained'; and (5) 'the total sum claimed'."
The Court of Appeals also found that the recipient of an unverified pleading waives objection to an absent or defective verification and may not "treat it as a nullity" if the pleading is not returned with notification of the reasons for the defect with due diligence in accordance with Civil Practice Law and Rules §3022. See Lepkowski, at 209-210. See Scott v State of New York, 46 AD3d 664 (2d Dept 2007) affg 18 Misc 3d 455 (Ct Cl 2006), Rister v City University of New York, 20 Misc 3d 195 (Ct Cl 2008), see also Malik v State of New York, 52 AD3d 1235 (4th Dept 2008). Raising the issue in a pre-answer motion, or setting forth the defense in the answer, without the requisite return and notice, does not alone avoid waiver. See Rister v City University of New York.
There is a corollary to that requirement of rejection and return, however, provided under the Court of Claims Act as noted above. See Court of Claims Act §11(c). Thus,
"the procedure for preserving an objection to an unverified claim or a defectively verified claim is . . . [that] the defendant is required to both notify the claimant of its rejection of an unverified or improperly verified claim with due diligence and assert the failure as an affirmative defense in the answer or by pre-answer motion to dismiss. "Failure to comply with either requirement will result in a waiver of the verification objection and/or defense" (Bill Jacket, Laws of 2007, Chapter C223, Letter of Michael Colodner dated June 11, 2007 in Support of Bill 5855), citing Myers v State of New York, . . . [UID 2004-015-444 (Ct Cl, Collins, J., Dec. 1, 2004)]; see also Ramos v State of New York . . . [UID No. 2007-015-158 (Ct Cl, Collins, J., Mar. 9, 2007)]." Gillard v State of New York, 28 Misc 3d 1139, 1142 (Ct Cl 2010).
From the papers presented herein, while it appears defendant has rejected the pleading by returning it as required with due diligence - the first requirement when a party is in receipt of an unverified pleading which it intends to treat as a nullity - defendant did not then move to dismiss the claim, or serve and file an answer containing the defense as required by Court of Claims Act §11(c).
Indeed, as is often a strategic practice, defendant waited to move to dismiss until it was served with Mr. Torres' motion for a default judgment, well after the time period within which Mr. Torres would have been able to timely make application for late claim relief with regard to any intentional tort cause of action. See generally Court of Claims Act §10(6); Civil Practice Law and Rules §215.
Based on the foregoing, defendant has failed to properly preserve any defense premised on the lack of verification, as well as the timeliness defense, since it failed to either serve an answer containing such defenses or to promptly move for dismissal based upon those grounds. Court of Claims Act §§ 10, 11(b), 11(c). Those defenses have therefore been waived.
Accordingly, both pending motions are denied, and defendant is directed to serve and file its answer within 40 days of the filing date of this decision and order, omitting the waived defenses of a lack of timeliness and a lack of verification.
December 6, 2016
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims