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Supreme Court, Appellate Division, Third Department, New York.

Richard T. LEPKOWSKI, et al., Respondents, v. STATE of New York, Appellant.

Decided: February 20, 2003

Before:  CREW III, J.P., PETERS, ROSE, LAHTINEN and KANE, JJ. Eliot Spitzer, Attorney General, Albany (Kathleen M. Treasure of counsel), for appellant. Law Office of William Seamon, Albany (Lisa M. King of counsel), for respondents.

Appeal from an order of the Court of Claims (Collins, J.), entered September 14, 2001, which denied defendant's motion to dismiss the claims.

Claimants in this consolidated action are former and current state employees who, by way of two separate claims (the Ableson claim and the Lepkowski claim), seek overtime compensation pursuant to the Fair Labor Standards Act (see 29 USC § 201 et seq.).   The Ableson claim was made on behalf of 390 employees, and the Lepkowski claim on behalf of 377 employees.   Each claim asserts that the relevant claimants are overtime eligible within the meaning of the Fair Labor Standards Act in that they have worked over 40 hours in work weeks since April 1994 (the Ableson claim) and July 1992 (the Lepkowski claim).   Each claim also is verified by a single claimant.

After the claims were answered and considerable discovery ensued, defendant moved to dismiss the action contending, inter alia, that the claims failed to meet the pleading requirements of Court of Claims Act § 11(b) and that they were not verified in accordance therewith.   The Court of Claims denied the motion finding that the claims substantially complied with the pleading requirements of the Court of Claims Act and the verification requirements were met inasmuch as the two claimants who verified the claims were “united in interest” with the remaining claimants.   Defendant has now appealed and we reverse.

 The Court of Claims Act provides, in pertinent part, that a claim shall state “the time when and place where such claim arose, the nature of same, * * * the items of damage * * * claimed to have been sustained and the total sum claimed” (Court of Claims Act § 11[b] ).  These requirements are jurisdictional and must be strictly construed (see Finnerty v. New York State Thruway Auth., 75 N.Y.2d 721, 722, 551 N.Y.S.2d 188, 550 N.E.2d 441).   While the claims at issue satisfactorily state the nature of the relief sought by claimants, they completely fail to provide the times when and the places where such claims arose, any items of damage or the total sum claimed.   Rather, the claims merely assert that claimants are overtime eligible in that they have worked over 40 hours in work weeks since April 1994 and July 1992, respectively.   It hardly can be asserted that such statement is sufficiently detailed to enable defendant to investigate the claims and promptly ascertain the existence of its liability (see e.g. Bowles v. State of New York, 208 A.D.2d 440, 442-443, 617 N.Y.S.2d 712).   Such claims should, at the very least, identify the place of claimants' employment within the state, the office where the overtime allegedly occurred, the weeks in which said overtime accrued and the number of hours worked in excess of 40 hours.

 Although claimants urge that the foregoing omissions are not significant inasmuch as the information required is a matter of public record easily discoverable by defendant, we disagree.   It is axiomatic that the sufficiency of a claim rests solely upon the assertions contained therein, and defendant is not required to go beyond the claim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act § 11 (see Cobin v. State of New York, 234 A.D.2d 498, 499, 651 N.Y.S.2d 202, lv. dismissed 90 N.Y.2d 925, 664 N.Y.S.2d 259, 686 N.E.2d 1353).   Moreover, the record before us belies a claim that claimants' work hours were a matter of public record readily ascertainable by defendant.   The record reflects that claimants were members of the Professional, Scientific and Technical Services Bargaining Unit holding positions with salary grade 23 or higher.   Pursuant to the collective bargaining agreements in effect at the time of the filing of the claims, all employees of the unit with allocated grades of 22 or below were deemed eligible to receive overtime compensation and, thus, were required to prepare time sheets that recorded actual hours worked.   Employees with allocated grades of 23 or higher, however, were considered ineligible for overtime compensation and, thus, were not required to record actual hours worked per week.   Indeed, it was not until the 1999-2003 collective bargaining agreement that employees with allocated grades of 23 or higher were required to keep daily time records showing actual hours worked.   Claimants maintain, however, that prior to 1999, grade 23 employees kept such records and, in support of such contention, have submitted two time records dated July 1, 1992 and September 21, 1994.   However, there are no affidavits by said claimants either affirming the authenticity of such records or asserting that they were required to be kept by the department for which they worked and that such records were prepared by them continually for the periods referred to in the claims.

 We also find merit in defendant's contention that the claims were not properly verified.   As noted previously, each of the claims was verified by only one of the claimants named therein.   The Court of Claims Act requires that a claim be verified in the same manner as a complaint in an action in Supreme Court (see Court of Claims Act § 11[b] ).  The CPLR provides that verification of a pleading “shall be made by the affidavit of the party, or, if two or more parties united in interest are pleading together, by at least one of them who is acquainted with the facts” (CPLR 3020[d] ).  While claimants here may be united in interest, there is no evidence that the two claimants who verified the claims are acquainted with the factual premises for the remaining 765 claimants' entitlement to overtime compensation (i.e., the weeks in which the other claimants worked in excess of 40 hours and the number of hours in excess thereof).   Accordingly, the underlying order is reversed and the claims are dismissed.

We respectfully dissent.  “[P]ublic policy * * * seeks to reduce rather than increase the obstacles to recovery of damages, whether defendant is a private person or a public body” (Brown v. State of New York, 89 N.Y.2d 172, 180, 652 N.Y.S.2d 223, 674 N.E.2d 1129).   The requirements regarding the contents of the claim, as set forth in Court of Claims Act § 11, “should receive a reasonable construction and not one that unjustly deprives a suitor of the right to recover” (Chalmers & Son v. State of New York, 271 A.D. 699, 701, 68 N.Y.S.2d 827, affd 297 N.Y. 690, 77 N.E.2d 8).   The contents of a claim are sufficiently definite if the allegations are “specific enough so as not to mislead, deceive or prejudice the rights of the State.   In short, substantial compliance with section 11 is what is required” (Heisler v. State of New York, 78 A.D.2d 767, 767, 433 N.Y.S.2d 646;  see Santos v. State of New York, 291 A.D.2d 851, 737 N.Y.S.2d 756;  Ferrugia v. State of New York, 237 A.D.2d 858, 859, 655 N.Y.S.2d 174).   The claim must provide adequate information so that defendant can conduct an investigation, but “[a]ll elements of the claim need not be set out with formalistic rigidity” (Harper v. State of New York, 34 A.D.2d 865, 865, 310 N.Y.S.2d 786).

Here, the claims alleged, inter alia, that claimants were employees of defendant, they all were in the Professional, Scientific and Technical Services Bargaining Unit, they were all assigned to grades 23 or higher, they worked overtime, they were not paid for overtime and they were required to be paid overtime pursuant to the Fair Labor Standards Act. In addition, in the Lepkowski claim, the names and addresses of each of the claimants are provided and, in the Abelson claim, claimants provide such information as well as the particular agency of each employee.   Claimants allege the general time frame implicated and state that they are seeking damages equal to the amount of unpaid overtime worked at a rate of 1 1/212 times their regular pay.   This is not a case of inadequately apprising defendant where a slip and fall occurred, or when a purported malpractice occurred, or how defendant was vicariously liable for negligence in an automobile accident, all of which would deprive defendant of the ability to conduct a meaningful investigation.   Here, the rudimentary and proverbial where, when and how are alleged.   Moreover, the primary issue implicated by these claims is legal in nature, i.e., whether the Fair Labor Standards Act applies to these employees.   We believe that the allegations in the claims put defendant on sufficient notice to conduct a meaningful investigation regarding its potential liability under the Fair Labor Standards Act (see Speers v. State of New York, 183 Misc.2d 907, 914, 705 N.Y.S.2d 858, affd. in part, revd. in part 285 A.D.2d 872, 728 N.Y.S.2d 302).   The specific overtime hours allegedly worked by each claimant can certainly be elicited via a bill of particulars or the use of other disclosure devices.   We agree with the Court of Claims that defendant failed to show that it has been “prejudiced, misled or disadvantaged” by the contents of the claim (see Heisler v. State of New York, supra ).

We do not read Finnerty v. New York State Thruway Auth. (75 N.Y.2d 721, 551 N.Y.S.2d 188, 550 N.E.2d 441) as compelling a contrary conclusion.   To be sure, Finnerty strictly construed the manner of service requirement of Court of Claims Act § 11.1  Finnerty did not, however, explicitly modify the established precedent regarding the analysis of the contents of the claim, which had consistently been interpreted as having an elastic quality.2

Nor do we believe that the lack of a separate verification by each of the claimants rises to the level of a jurisdictional defect.  Court of Claims Act § 11(b) provides that the verification shall be “in the same manner as a complaint in an action in the supreme court” and, thus, the provisions of CPLR 3020, 3021, 3022 and 3023 are relevant to the issue.   We agree with the Court of Claims that the parties are united in interest (see CPLR 3020[d] ) and that the verifying claimant-while perhaps not knowing the particulars supporting each of the claimants-indicated a sufficient knowledge of the overriding legal issue common to all claimants (see Betzler v. Carey, 109 Misc.2d 881, 886, 441 N.Y.S.2d 206 affd 91 A.D.2d 1116, 458 N.Y.S.2d 338, lv denied 59 N.Y.2d 601, 463 N.Y.S.2d 1025, 450 N.E.2d 250).   Moreover, even assuming, arguendo, that the verification was defective, defendant's remedy was to elect to treat the pleading as a nullity, and notice of such election must be given with “due diligence” (CPLR 3022;  but see Martin v. State of New York, 185 Misc.2d 799, 801-804, 713 N.Y.S.2d 831).   Due diligence in such regard has been interpreted as requiring notice within a period of time as short as 24 hours (see Air N.Y. v. Alphonse Hotel Corp., 86 A.D.2d 932, 448 N.Y.S.2d 795, cf.  Matter of Miller v. Board of Assessors, 91 N.Y.2d 82, 86 n. 3, 666 N.Y.S.2d 1012, 689 N.E.2d 906).   No such timely action was taken by defendant and, thus, any objection regarding the verification was waived.

We would therefore affirm the order of the Court of Claims.

ORDERED that the order is reversed, on the law, without costs, and claims dismissed.


1.   Interestingly, the Legislature subsequently amended Court of Claims Act § 11 to provide that the manner of service-which had been held to be a nonwaivable defect-as well as the time limitations of Court of Claims Act § 10, could, in fact, be waived (see L 1990, ch 625).

2.   The parallel with Supreme Court practice is palpable, i.e., statutes regarding service of process and time limitations require exacting compliance, whereas an analysis of the sufficiency of the allegations of the complaint incorporates a degree of flexibility.


ROSE and KANE, JJ., concur.

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