Martin v. State of New York

In Martin v. State of New York, 185 Misc 2d 799, the defendant advised the claimant in an affirmative defense that it was treating the claim as a nullity because it was not verified. The issue came before Judge Corbett on the eve of trial when the claimant sought to overcome the affirmative defense by moving to amend the claim nunc pro tunc, and the defendant cross-moved to dismiss the claim because it was jurisdictionally defective (see, Martin v. State of New York, 185 Misc 2d, at 804-805, supra). Judge Corbett intimated that since the failure to verify impacted the court's jurisdiction, it did not have to be pleaded with particularity in the answer and could be raised at any time. The State did not comply with CPLR 3022 by rejecting the unverified claim as a nullity but raised lack of verification as an affirmative defense in its answer. In that case, the State's motion to dismiss for lack of verification was not made until after considerable discovery had been completed, after a trial date had been set, and after the time in which the claimant could move for permission to late file had expired. While acknowledging that in CPLR practice the deficiency would be deemed waived in these circumstances, the Court stated that with respect to practice in the Court of Claims it is immutable that the requirements of Court of Claims Act 11(a) and (b) are jurisdictional in nature and must be strictly construed. In Martin (supra), the Court reasoned that if the Legislature had wanted to make verification a waivable requirement along with the time and manner of service requirements, section 11(c) would have been written to include a parallel provision that any defense based on lack of verification had to be raised in the answer or a pre-answer motion or deemed waived.