Williams v. State
| Decision Date | 19 March 1974 |
| Docket Number | No. M--16114,M--16114 |
| Citation | 77 Misc.2d 396,353 N.Y.S.2d 691 |
| Parties | Anthony WILLIAMS, Claimant, v. The STATE of New York, Defendant. Motion |
| Court | New York Court of Claims |
In this motion claimant seeks an order declaring valid a previously filed Notice of Intention or, in the alternative, waiving the time limitations for filing a Notice of Intention.
This latter relief is outside the scope of the Court's authority, since filing requirements are jurisdictional and must be adhered to strictly. Unless a claimant falls within one of the specific provisions dispensing with filing of a Notice of Intention or excusing timely filing, the statutory 90 day period cannot be extended.
In the instant proceeding, claimant filed a Notice of Intention with the Clerk of the Court and served a copy upon the Attorney General within the designated filing period. Prior to the expiration of said period and simultaneous with the filing the State elected to treat claimant's Notice of Intention as a nullity pursuant to Rule 3022 of the CPLR because the document was not appropriately verified in accordance with Section 11 of the Court of Claims Act.
A subsequently verified Notice of Intention was filed, however, two days beyond the statutory period.
The State opposes the motion on the grounds claimant has not tendered a reasonable excuse for the failure to file timely.
The issue before this Court is whether the failure to timely file a Verified Notice of Intention must be excused in accordance with the criteria enumerated in subdivision 5 of section 10 of the Court of Claims Act before claimant may be permitted to file a claim.
The Court is not persuaded the requirements of the aforesaid statutory provision must be satisfied in order to grant the relief requested, although leave of the Court may nevertheless be necessary.
Requirements for filing, as has often been stated, are jurisdictional requisites and must be strictly construed. (Modern Transfer Co. v. State of New York, 37 A.D.2d 756, 322 N.Y.S.2d 948; Bommarito v. State of New York, 35 A.D.2d 458, 317 N.Y.S.2d 581; Olson v. State of New York, 71 Misc.2d 1009, 338 N.Y.S.2d 198.) This does not mean, however, that every element of a Notice of Intention must be set forth with formalistic rigidity provided notice is conveyed to the State and the purpose of the statute is not perverted. (Harper v. State of New York, 34 A.D.2d 865, 310 N.Y.S.2d 786.)
The recognized purpose of the requirements for filing is to give the State notice and an opportunity to investigate and defend. (Harvey Chalmers & Son, Inc. v. State of New York, 271 App.Div. 699, 68 N.Y.S.2d 827, affd 297 N.Y. 690, 77 N.E.2d 8; De Castello v. State of New York, 23 Misc.2d 939, 202 N.Y.S.2d 766.)
The Notice of Intention filed by claimant prior to the expiration of the statutory ninety days period contained, and the State does not contend otherwise, all the elements required by law except that the signed verification was followed by a blank jurat. The affidavit submitted in support of the motion avers that claimant's signature was executed in the presence of his attorney, a notary public, but that the latter inadvertently omitted the proper attestation.
It is clear that an irregular verification is not a fatal jurisdictional defect, since any omission may be waived by the party upon whom service is made. (People ex rel. Fifth Avenue & 37th St. Corp. v. Miller, 261 App.Div. 550, 26 N.Y.S.2d 219, affd 286 N.Y. 628, 36 N.E.2d 682; Canizio v. State of New York, 8 Misc.2d 943, 169 N.Y.S.2d 185.)
A defective verification in any event should never result in irreparable injury to a party's ability to prosecute his cause of action (Weinstein, Korn, and Miller, Vol. 3, § 3022.04, p. 30--523) and irregularities or defects in form should be...
To continue reading
Request your trial
-
Schwartzberg v. State
...meeting is not fatal. (See, generally,Sheinbaum v. State of New York, 101 Misc.2d 250, 252, 420 N.Y.S.2d 855; Williams v. State of New York, 77 Misc.2d 396, 353 N.Y.S.2d 691; see, also,Conklin v. State of New York, 46 A.D.2d 936, 361 N.Y.S.2d 743, affd. 38 N.Y.2d 726, 381 N.Y.S.2d 37, 343 N......
-
Schaeffer v. State
...the Court (CPLR 2001; see, e.g., Calabrese v. Springer Personnel of New York, 141 Misc.2d 566, 534 N.Y.S.2d 83; Williams v. State of New York, 77 Misc.2d 396, 353 N.Y.S.2d 691) where preserved, jurisdictional ones may not. (See, e.g., Reed v. State of New York, 147 A.D.2d 767, 537 N.Y.S.2d ......
-
Catrice W., Matter of
...agency contends the respondent has waived any right to object to the validity of the verification. Williams v. The State of New York, 77 Misc.2d 396, 353 N.Y.S.2d 691 (Ct.Cl.1974). and the impression of a Notary stamp showing Ellen R. Greenb......
-
Cannon v. State
...intention which satisfies the purpose of the statute will be sufficient to obtain jurisdiction over the State (Williams v. State of New York, 77 Misc.2d 396, 353 N.Y.S.2d 691). The state argues that the notice of intention does not provide adequate information to conduct an investigation. A......