,

...

STATE OF NEW YORK EDWARD NELSON,

COURT OF CLAIMS
STATE COURT OF CLAIMS ALBANY. NY

Claimant,

DECISION AND ORDER

-vTHE STATE OF NEW YORK, Defendant.

Motion No. M-70540

RECEIVED NYS OFFICE OF THE

BEFORE:

HON..THOMAS H. SCUCCIMARRA
Judge of the Court of Claims

NOV 1 5 2005"
ATfOANEY GENERAL

UTJGATION BUREAU APPEARANCES: For Claimant: EDWARD NELSON, PRO SE For Defendant: HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL BY: ELYSE J. ANGELICO, ASSISTANT ATTORNEY" GENERAL

The following papers numbered 1.to 6 were read and considered on Claimant's motion to vacate the prior Order of this Court pursuant to Civil Practice Law and Rules 5015: 1,2 Notice of Motion for Relief from Judgment upon Ground me Court Lacks Jurisdiction to Render Judgment, Affidavit by Edward Nelson, Claimant, and attached exhibits Letter from Assistant Attorney General dated September 7, 20051
.

"

Assistant Attorney General wrote to the Court on September 7, 2005 indicating that the office had not been served with this motion, and "leaves all legal conclusions to the Court." Thereafter, Claimant submitted an . additional Affidavit of Service dated September 9, 2005 - including a certified mail receipt that was file-stamped by the Office of Legal Records in the Attorney General's Office - attesting to receipt of papers by Attorney General's office on July 15, 2005. Additionally, the original Affidavit of Service Claimant filed in the Office of the Clerk of the Court of Claims indicates that he mailed the papers on July 13, 2005. Accordingly, the Court ~ satisfied that the Defendant

1 The

"

.-

Motion No. M-70540

Page 2

4
5,6

Affidavit of Service by Edward Nelson Filed Papers: Nelson v State of New York, Claim No. None, Motion No. M64828, Decision and Order (Scuccimarra, J., June 4,2002); Nelson v State of New York, Claim No, None, Motion No. M-66308, Decision and Order (Scuccimarra, J., April 10, 2003) In the present motion, Claimant asks that the Court ''vacate a default judgment" pursuant

to Civil Practice Law and Rules 50I5(a)(4).

A fair reading of his papers, and the filed papers

associated with two earlier motion decisions of this Court, indicates that what is really sought is renewal of the two prior Orders based upon a clarification of the applicable law. The underlying Decision and Order [M-64828] denied Claimant's motion for an Order allowing his unverified Notice of Intention to be treated as a claim, and the alternative prayer for late claim relief. The reargument motion Decision and Order [M-66308] was decided before the clarification by the Court of Appeals of the requirement that a Defendant reject an unverified pleading pursuant to Civil Practice Law and Rules 3022 or else waive any defense based upon a lack of verification. LfUJ~owski v State of New York, 1 NY3d 201 (2003). In Lepkowski v State of New York, supra, at 210, the Court of Appeals said: "Pursuant to CPLR 3022, 'when a pleading is required to be verified, the recipient of an unverified or defectively verified pleading may treat it as a nullity provided that the recipient 'with due diligence' returns the [pleading] with notification of the reason(s) for deeming the verification defective" (Matter of Miller v Board of Assessors, 91 NY2d 82, 86 [1997]) ....A defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification.[Court of Claims Act] Section 11 (b) requires the claim and notice of intention to be verified 'in the same manner as a complaint in an

was served.

.'

Motion No. M-70540

Page 3

action in the [S]upreme [Cjourt ....Because the Legislature had mandated that verification ...in the Court of Claims follow ... the same 'method of action' or 'mode of procedure' employed for an action in Supreme Court, there is no basis for treating an unverified or defective verified claim or notice of intention any differently than an unverified or defectively verified complaint is treated under the CPLR in Supreme Court. Section 11 (b) therefore embraces CPLR 3022's remedy for lapses in verification." In the decision denying Claimant's application to have the Court treat the served Notice of Intention as "aclaim pursuant to Court of Claims Act 10(8), the basis for denial had been the defective verification contained in the Notice of Intention. Had the law been settled concerning

..

waiver of defenses relative to verification, the motion to have the Court treat the Notice of Intention as a claim would have been granted. The Court had concluded therein that the Notice of Intention had been timely and properly served, that it sufficiently apprised the Defendant of the nature of the claim and when and where it arose, that the failure to specify a damage amount was not fatal, and that there was no prejudice to the State since it had been in possession of the basic facts of the claim since the Notice of Intention was served. [See Nelson v State of New York, Claim No. None, Motion No. M-64828, Pages 6-7, unreported Decision and Order (Scuccimarra, J.; June 4,2002)]. Accordingly, Claimant's motion to renew' and to vacate the underlying prior Decision and Order of the Court is hereby granted in the interests of justice and, upon renewal, the application to have the Court treat the Notice of Intention served upon the Attorney General on February 27,2001 as a Claim is hereby granted. Court of Claims Act 10(8).

2 Although applications for reargument contain a time constraint those for renewal do not. Civil Practice Law " and Rules 2221.

..

Motion No. M-r0540

Page 4

The Notice of Intention which was served upon the Attorney General on February 27, 200 I shall serve as the Claim in this action. The "clerk of the Court is directed to make a copy of the Notice of Intention - which is contained in the moving papers associated with motion number M-64828 - and designate it as a Claim. Claimant is directed to pay the filirig fee with the Clerk who shall assign an appropriate number upon receipt of the filing fee. Within 30 days from
, ,

the date this Decision and Order is filed with the Clerk of the Court, Claimant should file and
I

serve an Amended Claim setting forththe total sum claimed in a demand for relief, 'and separately numbering the paragraphs. Defendant shall have 40 days from the date of service of the Amended Claim to file and serve its answer. See 22 NYCRR 206.7(b).

White Plains, New York 'November 7,2005

6:... .... ,

THOMAS H.SCUCCIMARRA

Judge of tlie Court of Claims

I .