New York State Court of Claims

New York State Court of Claims

POWELL v.THE STATE OF NEW YORK, #2000-004-510, Claim No. 97315, Motion No. M-61159


Synopsis


State's motion to dismiss, granted.

Case Information

UID:
2000-004-510
Claimant(s):
VAUGHAN POWELL, the proposed Administrator of the Estate of HUGH POWELL
Claimant short name:
POWELL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97315
Motion number(s):
M-61159
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
VAUGHAN POWELL, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY-GENERAL
BY: JAMES E. SHOEMAKER,
Assistant Attorney-Generalof counsel
Third-party defendant's attorney:

Signature date:
May 19, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision



The following papers were considered by the Court:

Claim filed November 12, 1997 1

Notice of Motion, filed February 2, 2000 2


Affidavit of James E. Shoemaker, AAG, in support of motion,
sworn to January 31, 2000, with attached exhibit 3



The State moves to dismiss the claim pursuant to Court of Claims Act §§ 10 and 11.



The Claim, filed by the "proposed" administrator of the estate of Hugh Powell, seeks damages based on the alleged negligent care provided by State Correctional Facility employees that resulted in Hugh Powell's death on November 12, 1995. (Paper No. 1)


State's counsel avers in pertinent part:
9. Court of Claims Act § 10(2) provides:

A claim by an executor or administrator of a decedent who left him or her surviving a husband, wife or next of kin, for damages for a wrongful act, neglect or default, on the part of the state by which the decedent' death was caused, shall be filed within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after the death of the decedent. In any event such claim shall be filed within two years after the death of the decedent.

10. The claim was served on November 12, 1997 by personal service. The claim was served by Vaughan Powell, who is the mother of claimant's decedent Hugh Powell. Claimant's decedent died on November 12, 1995.

11. A claim can only be filed by a proper representative Jones v. State of New York, 69 AD2d 936, aff'd 51 NY2d 943. In other words, a claim must be filed by a court appointed executor/executrix or by a court appointed administrator/administratrix. See also Selesky v. State of New York, Court of Claims, Silverman, J., Claim No. 84463, Motion #M-45356 and Cross Motion #CM-45491.

12. The caption of the claim reads Vaughan Powell, the Proposed Administrator to the Estate of Hugh Powell v. State of New York.

13. Since Vaughan Powell, the deceased's mother, had not been appointed administratrix or executrix of the Estate of Hugh Powell, she was not (is not) a proper representative to serve and file the claim.

(Paper No. 3)


A "proposed" estate representative is not authorized to file a claim in this Court. (Lichtenstein v State of New York, 93 NY2d 911). Thus, this Court lacks jurisdiction over the Claim, and it must be dismissed.


The motion is unopposed.


In light of the forgoing, it is


ORDERED that Motion No. M-61159 is GRANTED and Claim No. 97315 is DISMISSED.



May 19, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims