The following electronically filed papers were read upon these motions: Notice of Motion/Order to Show Cause 7-10 Answering Papers 12-19 Reply DECISION AND ORDER Claimant initiated this action pursuant to the Adult Survivors Act (ASA) (CPLR 214-j). The defendant moves this Court pursuant to CPLR 3211 for an Order dismissing the Claim in its entirety based on the grounds that the Claim was improperly verified, that the Claim was untimely served and filed on December 5, 2023, and that this Court lacks jurisdiction to determine the alleged constitutional violations.1 The claimant opposes the requested relief, asserting that the Claim was properly verified, but if the Court determines that the verification was defective, the defendant did not properly reject the Claim as required pursuant to CPLR 3022, and so the defendant’s motion to dismiss is untimely and it also lacks particularity as to the claimed defect in verification. Moreover, the claimant asserts that this Court has jurisdiction over claims against the State based upon alleged violations of the State Constitution. The Verification and Rejection of Claim CPLR 3020 (d)(3) permits the attorney representing a party to verify a pleading if the party “is not in the county where the attorney has his office.” It is undisputed that the Claim is dated November 15, 2023 and that it was electronically filed on that same day. Paragraph 6 of the Claim states in relevant part that, “Claimant, LAKENYA SMITH (hereinafter referred to as ‘Claimant’), is a citizen of the United States and a resident of Kings County, New York.” It is further undisputed that claimant’s attorney’s office is located in New York County. The verification page, signed by claimant’s attorney, states that “[t]he reason Claimant did not make this verification is that she resides outside of the county where her attorney has her office. Claimant resides in New York County” (emphasis added). Section 11 (b) of the Court of Claims Act provides that a claim shall be verified in the same manner as a complaint in supreme court. If a pleading is not verified, a party “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” (CPLR 3022). Objections based upon a party’s failure to comply with the verification requirements of section 11 (b) are waived unless raised with particularity in an answer or a motion to dismiss made before a responsive pleading is required (Court of Claims Act §11[c]). The Claim was personally served on the Office of the Attorney General on behalf of the State on November 16, 2023. The defendant acknowledges receipt of the Claim on that date. Five days later, by letter dated November 21, 2023, the defendant rejected the Claim, treating it as a nullity because, “[t]he verification states ‘The reason the Claimant did not make this verification is that she resides outside of the county where her attorney has her office. Claimant resides in New York County.’” That is the sum total of the reasoning set forth by the defendant. Here, claimant’s counsel maintains that the Claim is properly verified because in paragraph 6 thereof, it is stated that the claimant resides in Kings County. Claimant’s counsel further asserts that the portion of the verification stating that the “[c]laimant resides in New York County” was a typographical error, and since the Claim itself provided information permitting counsel, whose office is in New York County, to make the verification instead of the claimant, then the defendant was not permitted to reject the claim on the basis of an alleged defective verification. The ASA filing deadline/statute of limitations expired at midnight on November 23, 2023. Claimant’s counsel received defendant’s rejection letter on Monday, November 27, 2023. There is no dispute that the defendant sent the rejection letter via the United States Postal Service (USPS), first class mail, on Tuesday, November 21, 2023. In addition, the Thanksgiving holiday fell on Thursday, November 23, 2023. The Court takes judicial notice of the fact that Thanksgiving is a federal holiday on which USPS facilities are closed and there is no regular mail delivery, including for items sent by ordinary first class mail. After claimant’s attorney received the rejection letter from defendant on November 27, 2023, claimant’s attorney filed an “AMENDED ATTORNEY VERIFICATION” to NYSCEF on November 30, 2023 stating that “[t]he reason Claimant did not make this verification is that she resides outside of the county where her attorney has her office,” thereby attempting to correct the typographical error contained in the initial verification accompanying the Claim. The defendant received the “AMENDED ATTORNEY VERIFICATION” on December 5, 2023, and so the defendant maintains that the Claim was not timely served and filed within the applicable statute of limitations. Given that the Claim filed and served on the defendant in this matter was verified, albeit with what is said to be a typographical error, the Claim is not unverified, but it is defectively verified. In any event, because Section 11 (b) of the Court of Claims Act provides that a claim shall be verified in the same manner as a complaint in supreme court, “there is no basis for treating an unverified or defectively 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” (Lepkowski v. State, 1 NY3d 201, 210 [2003]). Accordingly, the fact that a claim is not verified, or as in this case is defectively verified, does not end the analysis as defendant suggests. The Court of Appeals has differentiated nonconformity with Section 11 (b)’s substantive pleading requirements that would render a claim jurisdictionally defective, from the verification requirement (id. at 209). Moreover, Court of Claims Act §11(c) was amended in 2005 to make clear that a defense based on verification requirements is waivable if not timely raised. Thus, pursuant to CPLR 3022, the recipient of a defectively verified claim may treat the claim as a nullity, “provided he gives notice with due diligence to the attorney of the adverse party that he elects to do so.” So, the defendant in this matter was under the obligation to properly notify the claimant’s attorney of the rejection, and to do so with due diligence. “We have never specified a uniform time period by which to measure due diligence. A defendant who does not notify the adverse party’s attorney with due diligence waives any objection to an absent or defective verification” (Lepkowski, supra at 210). There is no statutory time period delineated for “due diligence” although several courts have interpreted that requirement to mean that rejection should take place within twenty-four (24) hours (e.g., Theodoridis v. American Transit Insurance Co., 210 AD2d 397 [2d Dept 1994]; Air New York v. Alphonse Hotel Corp., 86 AD2d 932 [3d Dept 1982]). Since there is no rigid “rule” defining “due diligence” as a 24-hour period, it is important to consider “the amount of time elapsed between service of the faulty pleading and the return; reasons for, and reasonableness of time elapsed; whether the party rejecting the pleading already had counsel or is an attorney; whether the issue was raised at the first opportunity, whether in writing or in court; whether a statute of limitations or other deadline has expired during the time elapsed; and the credibility of the party in its pleadings and testimony given, if any. Ultimately, due diligence requires prompt attention, no undue delays, and no whiff of gamesmanship (Rodriguez v. Westchester County Board of Elections, 47 Misc3d 956, 962 [Sup Ct Westchester County 2015]) (emphasis added). Here, the defendant admits having received the Claim on November 16, 2023, a Thursday, and prior to the expiration of the deadline for filing ASA claims. It is incontrovertible that the defendant waited five days, until November 21, 2023, to date and send its rejection letter via first class mail. Even if the Court were to have considered the defendant’s reply papers, the defendant has failed to provide any reason for the delay in rejecting the Claim. Claimant’s counsel did not receive the rejection until Monday, November 27, 2023. Recognizing that an ordinary mailing such as was made here can take five days to reach its destination (see CPLR 2103 [b][2]), and considering that the deadline to file an ASA claim expired in the interim (November 23, 2023), plus the fact that a federal holiday without USPS mail delivery also intervened during the ensuing five days from November 21, 2023, this Court finds that by waiting five days to send its letter rejecting the defectively verified claim as a nullity, the defendant failed to act with due diligence. Accordingly, the failure to act with due diligence constitutes a waiver of the defect, “and if so waived the court shall not dismiss the claim for such failure” (Court of Claims Act, §11 [c]). So, there is no legal basis for dismissal of the claim on the grounds that the Claim was improperly verified, or that it was untimely served and filed. Inasmuch as the ASA was enacted in May 2022 in order to provide a one-year lookback period within which victims of sexual offenses would be able to revive claims that would otherwise be time-barred by the applicable statute of limitations (CPLR 214-j), the defendant’s assertion that the Claim is untimely because it was not filed and served within ninety days after the accrual of the Claim, nor was a notice of intention served within ninety days after accrual, is inapposite under these circumstances. Furthermore, the defendant’s rejection letter, as well as its Affirmation in Support of the instant motion to dismiss, each fail to specify why the Claim verification was defective aside from simply cutting and pasting the language from the attorney verification; therefore, the defendant’s objection in this regard is not stated with particularity as required by Court of Claims Act §11 (c) (see Rister v. City Univertisy of New York, 20 Misc3d 195 [Ct CI 2008]; Matter of Steele v. State of New York, 19 Misc3d 766 [Ct CI 2008]). Dismissal is also denied on this ground. Defendant’s Motion is Untimely The defendant’s motion to dismiss is also untimely made. 22 NYCRR 206.7 provides in relevant part that “[e]xcept as extended by CPLR 3211 (subd. (f)), service of all responsive pleadings shall be made within 40 days of service of the pleading to which it responds.” Here, the Claim was personally served on the defendant on November 16, 2023; therefore, the defendant had forty days from November 16, 2023 to file its motion to dismiss or its responsive pleading alleging improper verification. Although the defendant opted to reject the Claim, it did not file its motion to dismiss until January 12, 2024, seventeen days after expiration of the fortieth day (December 26, 2023). Accordingly, the instant motion is also denied as untimely. Inasmuch as the defendant’s motion to dismiss is untimely and in view of this Court’s determination that the defense based upon alleged improper verification is waived, the Court need not address the remainder of defendant’s substantive arguments concerning constitutional violations. The defendant’s motion to dismiss is denied, and it is ORDERED that the defendant shall have ten (10) days from the service of this Decision and Order with notice of entry to serve a responsive pleading (CPLR 3211 [f]). The foregoing constitutes the Decision and Order of this Court. Dated: February 23, 2024
