Court of Claims, November 8, 2023

Letitia James, Attorney General (Dian Kerr McCullough of counsel), for defendant.

Aranda Law Firm, PLLC (Sofia Aranda of counsel) for claimant.

The issue presented in this claim involves the verification requirement of Court of Claims Act § 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 correction 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 affirmation, exhibit 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. exhibit B).{**83 Misc 3d at 285}

Defendant now moves to dismiss the claim as untimely (mot No. M-98465), arguing that no valid notice of intention was ever timely served upon it. Defendant argues that the first [*2]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 Court of Claims Act §§ 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]).^[FN1]

Claimant opposes defendant's motion and simultaneously moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6) with respect to the causes of action for assault and battery, and intentional infliction of emotional distress (mot 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 Court of Claims Act § 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 AD3d 885 [2d Dept 2019])—and claimant expressly asks for such relief.

Beginning with the applicable statutory provisions, Court of Claims Act § 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{**83 Misc 3d at 286} 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 N.Y., 46 NY2d 743, 745 [1978]). As further relevant here, the Court of Appeals has stated in dicta that Court of Claims Act § 11 (b) "embraces CPLR 3022's remedy for lapses in verification" (Lepkowski v State of New York, 1 NY3d 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 NY3d at 210, citing Matter of Miller v Board of Assessors, 91 NY2d 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 affirmation, exhibits 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 (Court of Claims Act § 11 [c] [iii]; see also [*3]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 AD3d 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, Ct Cl, Jan. 10, 2022, Liccione, J., UID No. 2022-059-002 [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{**83 Misc 3d at 287} 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 AD3d 234, 243-244 [2d Dept 2013] [discussing broad judicial discretion in application of CPLR 2001]). Court of Claims Act § 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" (Court of Claims Act § 9 [8]). In granting the relief requested in Ordentlich, the underlying Court of Claims decision relied on both CPLR 2001 and Court of Claims Act § 9 (8) (see Ordentlich v State of New York, Ct Cl, Mar. 17, 2017, Mignano, J., UID No. 2017-029-010, 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 NY3d 277, 280-281 [2007]; see also Sacher v State of New York, 211 AD3d 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 Court of Claims Act § 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 AD3d 1724, 1726 [3d Dept 2019]; see Graham v Goord, 301 AD2d 882 [3d Dept 2003]; Givens v State of New York, Ct Cl, Aug. 2, 2005, Sise, P.J., UID No. 2005-028-557 [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, Ct Cl, Oct. 5, 2020, DeBow, J., UID No. 2020-038-555; see also Buonincontro v State of New York, Ct Cl, Apr. 12,{**83 Misc 3d at 288} 2023, Liccione, J., claim No. 131678, UID No. 2023-059-012; Caldwell v State of New York, Ct Cl, June 4, 2021, Collins, J., UID No. 2021-015-061; Dinkins v State of New York, Ct Cl, Nov. 7, 2022, Martin, J., claim No. 121207, UID No. 2022-051-061; Nunez-Perez v State of New York, Ct Cl, Mar. 22, 2021, W. Rivera, J., UID No. 2021-054-008; accord Hogan v State of New York, 59 AD3d 754, 755 [3d Dept 2009] [holding that jurisdictionally defective claim that failed to set forth the total sum claimed as [*4]required under Court of Claims Act § 11 (b) "cannot be cured through an amendment"]).^[FN2] 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.^[FN3]

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 AD3d at 885). Here, the information missing from the verification was in fact contained within the notice of intention to file a 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.{**83 Misc 3d at 289}

"Claimant is represented by Sofia Aranda Esq., Aranda Law Firm PLLC, 11 Broadway, Suite 615, New York, NY 10004" (McCullough affirmation, exhibit 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 AD3d at 886), nor was it required to "ferret out or assemble [this] information" (Lepkowski, 1 NY3d at 208), which was apparent on the face of the notice (see Giambra, 46 NY2d 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][*5][ignoring defect in answer's verification by the defendant's attorney where "affirmation-verification failed to state the reason why 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 [the claimant and verifying attorney were both located in Kings County]; Buonincontro [the claimant and verifying attorney were both located in Nassau County]).^[FN4]{**83 Misc 3d at 290}

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 Court of Claims Act § 9 (8) because, as discussed below, the claim would nevertheless be time-barred notwithstanding any amendment.^[FN5] 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 AD3d 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 AD3d at 243).

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 [*6]file the claim by August 29, 2019, in order to comply with Court of Claims Act § 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 affirmation, exhibit C), rendering the claim untimely to this extent (see Court of Claims Act § 11 [a] [i] [both the act of filing and act of service must occur within the{**83 Misc 3d at 291} applicable time period, and service is not complete until the claim is received by the Attorney General]).^[FN6] Indeed, claimant concedes that so much of the claim is untimely (see Aranda affirmation in support of mot to file a late claim at 3).

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 Court of Claims Act § 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 AD3d 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 AD3d 1165, 1168 [3d Dept 2003], citing Phillips v State of New York, 237 AD2d 590, 590 [2d Dept 1997], and Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 [1989]; see Czynski v State of New York, 53 AD3d 881, 883 [3d Dept 2008] [comparing Court of Claims Act § 11 (b) with Court of Claims Act § 11 (c)], lv denied 11 NY3d 715 [2009]).

Claimant's bare factual description in the notices of an alleged intentional assault by correction 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, Ct Cl, Oct. 13, 2020, Sampson, J., UID No. 2020-053-538; see also Smith v State of New York, Ct Cl, June 15, 2018, Hard, J., UID No. 2018-032-033; Thompson v State of New York, Ct Cl, Sept. 20, 2022, McCarthy, J., claim No. 137651, UID No. 2022-040-054). The same is true for the allegations in the claim sounding in wrongful confinement (see Nelson v State of New York, 67 AD3d 1142,{**83 Misc 3d at 292} 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 AD3d at 882-883; see also Bowles v State of New York, 208 AD2d 440, 443 [1st Dept 1994]; Cendales, 2 AD3d 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 [*7]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 (mot 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]" (Court of Claims Act § 10 [6]). As noted above, since this claim accrued on August 29, 2018, when the alleged assault by correction 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 AD3d 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.^[FN7] But even if it had, such claims would also be beyond the remedial reach of Court of Claims Act § 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 AD3d 917, 918 [2d Dept 2023], citing Brash v Richards, 195 AD3d 582 [2d Dept 2021]).{**83 Misc 3d at 293}

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.