Kilpatrick v State of New York

[*1] Kilpatrick v State of New York 2005 NY Slip Op 51786(U) [9 Misc 3d 1125(A)] Decided on October 3, 2005 Ct Cl Scuccimarra, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 3, 2005
Ct Cl

VICTOR KILPATRICK, Claimant(s),

against

THE STATE OF NEW YORK, Defendant(s)



110599



Claimant's attorney: VICTOR KILPATRICK, PRO SE

Defendant's attorney: HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL

BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL

Thomas H. Scuccimarra, J.

Claimant alleges in Claim Number 110599 that Defendant's agents negligently or intentionally lost and damaged his personal property when it was packed up for temporary storage while he was transferred between housing units at Green Haven Correctional Facility (hereafter Green Haven). In its Answer, in addition to general denials, Defendant asserts nine affirmative defenses.

As an initial matter, and after further investigation, Defendant withdrew its second, third, fourth, seventh and eighth affirmative defenses. [Affirmation in Opposition by Barry Kaufman, ¶5]. Its first, fifth, sixth and ninth defenses, however, were not withdrawn. [id. ¶6][FN1].

An affirmative defense is raised in an Answer to provide adequate notice to the Claimant of issues of law or fact that the Defendant may raise at trial or in later motion practice. Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983). Indeed, Civil Practice Law and Rules §3018(b), concerning responsive pleadings, provides in pertinent part that a ". . . party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading such as . . . collateral estoppel, culpable conduct . . . or statute of limitation. The application of this subdivision shall not be confined to the instances enumerated."

A motion to dismiss such defenses may be made on the ground that ". . . a defense is not stated or has no merit." Civil Practice Law and Rules §3211(b). When evaluating such a motion, all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the proof submitted. Capital Telephone Co. v Motorola Communications and Electronics, Inc., 208 AD2d 1150 (3d Dept 1994); Grunder v Recckio, 138 AD2d 923 (4th Dept 1988); cf. 182 Fifth Avenue, LLC v Design Development Concepts, Inc., 300 AD2d 198 (1st Dept 2002).

Claimant has shown that the ninth affirmative defense[FN2] asserted in the Answer lacks merit, but has not shown how the other remaining affirmative defenses lack merit or are otherwise deficient.

With respect to the first defense, Claimant merely argues that he did own and rightfully possess the property in question in this bailment claim, in accordance with applicable New York State Department of Correctional Services (hereafter DOCS) directives, and attaches I-64 inventory forms, local permits and package room receipts in connection with this assertion. [*2][Affidavit in Support by Victor Kilpatrick, Exhibits A, B, C]. Since the Defendant disputes this claim, there is a factual dispute requiring a plenary trial.

With regard to the fifth defense, concerning limitation of State liability premised upon Claimant's acceptance of any payments for the alleged loss, Claimant argues that no settlement offer was made or accepted and that this alone forecloses the issue. [Affidavit in Support by Victor Kilpatrick, ¶5, Exhibit E]. To the contrary, the defense is properly asserted - although marginally - even if no administrative payment has been made, since the claim here is still pending and in theory an offer could be made by the agency without counsel's knowledge.

The sixth affirmative defense alleges culpable conduct by the Claimant or a third party, and related reduction of any award. Claimant merely raises factual disputes. [Affidavit in Support by Victor Kilpatrick, ¶6]. This is properly pled pursuant to Civil Practice Law and Rules Article 14-A .

Finally, with regard to the ninth affirmative defense - asserting that Claimant served and filed an unverified Claim, that was duly rejected - Claimant argues that the Defendant was thereafter served with a verified claim within the prescribed 120 day period for service of a bailment claim [See Court of Claims Act §10(9)], and that this concludes the issue. [See Affidavit in Support by Victor Kilpatrick,¶9]. The Defendant acknowledges that the Attorney General's Office was ultimately served with a verified claim, but argues that the defense includes the assertion that a verified claim was not filed with the Clerk of the Court, after the original, unverified claim was rejected by Defendant. [Affirmation by Barry Kaufman, ¶11].

When a Claimant serves an unverified claim upon the Attorney General, that is rejected with due diligence pursuant to Civil Practice Law and Rules §3022, and then fails to correct the defect by timely serving a verified claim, the action has not been timely commenced and is subject to dismissal on jurisdictional grounds.[FN3]

The Court is satisfied that a duly verified Claim was properly and timely served upon the Office of the Attorney General, Claimant having cured the defect in verification by serving same [*3]upon the adverse party as required.

From a review of the file maintained by the Office of the Chief Clerk of the Court of Claims, a copy of the unverified claim was filed there in the first instance on March 7, 2005. The Affidavit of Service filed thereafter, attesting to proper service of a verified claim upon the Attorney General's Office, contains a notation indicating that this was a "2d filing", and that the "Defendant refused to accept original process on 3/14/05 because Claim was witnessed by 2 people not notarized . . ." The Affidavit of Service is accompanied by a separate sheet containing a proper verification [See Civil Practice Law and Rules §3021], clearly referring to the other, already filed, unverified claim. Indeed, the Clerk's Office acknowledged that the verification was received by its office on March 25, 2005, indicating "Said verification has been attached to the claim, subject to whatever legal objections may apply thereto." [Letter to Victor Kilpatrick from the Chief Clerk, dated April 8, 2005].

Just when it appears all the factual variations on the verification theme have been exhausted, another one insinuates itself. In this case however, it would exalt form over substance to make this minor variation achieve jurisdictional dimension. The adverse party has been properly served within the appropriate limitations period with a duly verified claim. The identical claim that was served upon the adverse party - albeit originally disengaged from its verification - is on file with the Clerk's Office, and a verification sent separately has made its way to the proper file there and has been attached to the claim. To absolutely require that a Claimant file an additional verified claim - with all of its parts attached - in order for the Court to retain jurisdiction would be absurd under these circumstances. Defendant has not specified how there is any prejudice.

Accordingly, Claimant's application to dismiss the ninth affirmative defense is hereby granted.

Resolution of the factual elements of this bailment claim await the trial of the matter.

Accordingly, Motion number M-70355 is denied in part and granted in part as set forth above and, as to those defenses withdrawn - Defendant's second, third, fourth, seventh, and eighth affirmative defenses - the motion is denied as moot. Footnotes

Footnote 1: Defendant indicates that the eighth affirmative defense is both withdrawn and preserved in two successive paragraphs of the Affirmation in Opposition. [See ¶¶5 and 6]. From the context of the arguments presented, however, it appears that counsel intended to withdraw the eighth affirmative defense asserting jurisdictional defects premised upon failure to serve a notice of intention.

Footnote 2: Misnumbered as a seventh affirmative defense.

Footnote 3: In Lepkowski v State of New York, 1 NY3d 201, 209, n. 5, 210 (2003), the Court of Appeals reaffirmed that the requirements of Court of Claims Act §11(b) should be adhered to, but more importantly provided that the recipient of an unverified pleading - generally the Defendant - 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. Thereafter the Court of Claims has additionally explored just how actively and quickly the Defendant must reject an unverified claim, and whether and when it must both raise such a defense in its answer or move to dismiss. In one decision dismissing a claim both because the copy served upon the Attorney General was unverified and duly rejected as a nullity, and because a subsequently served verified claim was untimely, Judge Hard noted that the claim filed with the Clerk's office was verified, and further noted in a footnote "the Chief Clerk's office does not make a practice of returning unverified claims as nullities, for the language of CPLR 3022 gives only the 'adverse party' the right to reject an unverified pleading." Newman v State of New York, UID#2004-032-068, Claim No. 109088, Motions Nos. M-68407, M-68408, M-68457, M-68561, M-68562 (Hard, J. September 21, 2004).