CPLR 3022 New York
In Lepkowski v. State of New York (1 NY3d 201, 802 NE2d 1094, 770 NYS2d 696 ) the Court of Appeals held that Court of Claims Act 11 (b), which requires that a claim be "verified in the same manner as a complaint in an action in the supreme court," embraces the remedy set forth in CPLR 3022 which provides that an insufficiently verified pleading may be treated as a nullity "provided [the recipient] gives notice with due diligence" that he elects to do so.
Following Lepkowski, Court of Claims Act 11 (c) (iii) was added to resolve divergent opinions among Court of Claims Judges regarding whether prompt notice of a party's intention to treat the unverified claim as a nullity sufficed, or whether the objection must nonetheless be raised in either a pre-answer motion to dismiss the claim or the answer (compare Lake v. State of New York, Ct Cl, Nov. 18, 2004, Minarik, J., claim No. 109345, M-68779, and Myers v. State of New York, Ct Cl, Dec. 1, 2004, Collins, J., claim No. 109325, motion Nos. M-69072, M-69135, UID No. 2004-015-444 [unreported]). Section 11 (c) (iii), as initially written, stated that:
"Any objection or defense based upon failure to comply with ... the verification requirements as set forth in subdivision b of this section and rule three thousand twenty-two of the civil practice law and rules is waived unless raised, with particularity, either by a motion to dismiss made before service of the responsive pleading is required or in the responsive pleading."
Although it was recognized that the reference to CPLR 3022 was "imprecise" because that rule does not set forth a "verification requirement" but, rather, the remedy for a defective verification, this court previously held that the mere reference to it made clear that the amendment was intended to require that the defendant both notify the claimant of its rejection of the unverified claim with due diligence and assert the failure to verify as a defense in the answer or by pre-answer motion to dismiss (see Ramos v. State of New York, Ct Cl, Mar. 9, 2007, Collins, J., claim No. 111636, motion Nos. M-72398, CM-72500, UID No. 2007-015-158 [unreported]).