New York State Court of Claims

New York State Court of Claims

PECK v. THE STATE OF NEW YORK, #2000-005-524, Claim No. 92487, Motion No. M-61901


State's Motion to Dismiss because wrongful death claim was filed before Claimant had been duly appointed as Administratrix and been issued Letters of Administration, regardless of Claimant's then-status as a Voluntary Administrator (SCPA Article 13, but see §1306). The personal injury claims are dismissed as untimely.

Case Information

SUSAN PECK, Individually and as Administratrix of the Estate of DALE N. MISENHEIMER, DAVID N. MISENHEIMER and WENDY E. MISENHEIMER
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Ballow, Braisted, O'Brien & RusinBy: F. David Rusin, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 21, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On July 19, 2000, the following papers, numbered 1 to 7, were read on motion by Defendant for an order dismissing the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed

3 Opposing Affirmation and Exhibit Annexed

4 Reply Affirmation

5, 6, 7 Filed Papers: Claim, Answer, Amended Answer

Upon the foregoing papers, this motion is granted.

The instant claim was filed as a result of a fatal motor vehicle accident occurring on April 29, 1995. The Defendant moves for dismissal of the wrongful death claim herein based primarily on the ground that said claim was served and filed by Claimant before she was duly appointed as the Administratrix of the estate of Dale Misenheimer. The papers do reflect that Dale Misenheimer was the ex-husband of the Claimant herein at the time of the fatal accident. The claim also alleges that David Misenheimer and Wendy Misenheimer are the children of the decedent. In the alternative, Defendant seeks leave to move for summary judgment, and then for summary judgment in its favor. It is not necessary for me to reach the question of summary judgment, as I am compelled, as harsh as it might appear, to dismiss the claim upon the grounds asserted by the Defendant.

Analysis of this question requires a review of the chronological history herein. The claim was served and filed on September 13, 1995, with the caption noted above. The Defendant's answer was filed on October 23, 1995, with an amended answer filed on February 26, 1996, both of which allege as the First and Third Affirmative Defenses, respectively, that Claimant Peck lacked the capacity to sue, and that the Claim was not filed and served within 90 days of the appointment of an administrator of the estate.

It is undisputed that Claimant was not issued Letters of Administration until March 24, 1997. The Defendant relies upon the unequivocal language of the Court of Appeals in Lichtenstein v State of New York (252 AD2d 921, affd 93 NY2d 911, 912 -3):

The appeal before us is governed by Dreger v New York State Thruway Auth. (81 NY2d 721, 724), in which we held that ‘[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed,' and that, accordingly, claimants who had not met the literal requirements of Court of Claims Act § 11 had not properly commenced their actions. Court of Claims Act §10 (2) and (3) contemplate that an executor or administrator be formally appointed before commencing an action against the State. Section 10 (2) specifically mandates that a wrongful death claim be brought ‘within ninety days after the appointment of such executor or administrator.' Section 10 (3) deals with personal injury claims. When, as here, the claim is a ‘survival' action on behalf of an intestate decedent, the proper claimant can be only a duly appointed personal representative in receipt of letters of administration (see, EPTL 11-3.2; see also, EPTL 1-2.13). Claimant, who started her action in the Court of Claims before receiving letters of administration, did not meet the requirements of the Court of Claims Act, and thus did not properly commence the action. (emphases supplied).

To be sure, Claimant filed this claim within 90 days of being named as voluntary administrator of decedent's estate pursuant to Article 13 of the Surrogate's Court Procedure Act. Claimant urges that this distinguishes her from the results in Lichtenstein, supra, and Liddell v State of New York, 182 Misc 2d 133, wherein neither Claimant had been appointed to represent the decedents' estates before the filing of the claims or the notice of intention. Again, harkening back to the unequivocal direction of the Court of Appeals in Lichtenstein, supra, a claim like the one before me may only be brought after an individual is formally and duly appointed, in receipt of letters of administration, with the Court specifically referencing EPTL § 11-3.2. It is inconceivable, given the precise language of the Court of Appeals, requiring a formal and duly appointed administrator, that it would wittingly open the door to a voluntary administrator, under an enabling statute that specifically excluded the power to enforce a claim for wrongful death or for personal injuries of the decedent (SCPA §1306). Claimant has also argued that any alleged defect in Peck's standing to bring the instant action was cured within two years of Misenheimer's death, as she was duly and formally issued Letters of Administration in March of 1997. It is clear that the Court of Appeals requires the issuance of such letters before the commencement of an action, not merely a post-filing adjudication empowering the Administrator to thereafter commence an action within 90 days (Court of Claims Act §10[2]).

While these matters were initially raised by the Defendant, it may be understandable that they were not necessarily resolved earlier because the accident, the filing of the claim and answers, and the issuance of the Letters of Administration all were concluded by March of 1997, and all of which preceded any judicial rulings in Lichtenstein, supra. The initial judgment by the trial judge in Lichtenstein was not filed in the Court of Claims until June 4, 1997; the Appellate Division, Third Department, did not affirm that decision until July 30, 1998, and the Court of Appeals did not render its affirmance until May 11, 1999. Indeed, it may be presumed that the Court of Appeals, when it granted permission to appeal, wanted to clarify earlier rulings and make a definitive statement as to the law. It did so, but in a decision that was rendered more than four years after the fatal accident herein, and long after any remedial motion practice was available to the Claimant pursuant to Court of Claims Act §10 (6), and obviously more than two years after the decedent's death (Court of Claims Act §10 [2]).

I am not unaware that the Claimant argues that significant pre-trial disclosure has taken place, that a note of issue has been filed, and that good faith settlement negotiations took place, albeit with a predecessor Assistant Attorney General. Counsel avers that he relied on good faith of the settlement negotiations at which times the issue of standing was never raised. Claimant also alludes to dilatory conduct on the part of the Defendant, but as has been observed, laches is not available against the State (Vernooy v State of New York, 135 Misc 2d 79, 83).

Accordingly, the motion to dismiss the wrongful death claim herein must be granted. With respect to the allegations of personal injury made on behalf of the decedent Dale Misenheimer and Claimants David Misenheimer and Wendy Misenheimer (both of whom brought this claim in their own names and have not disputed their status as adult children of the decedent), the Defendant has moved to dismiss those claims as untimely in that the claim herein was served and filed more than 90 days after the accrual of said causes of action in derogation of Court of Claims Act §§10(3) and 11(a). The Defendant has properly, and with particularity, preserved this defense in its Second Affirmative Defense, as required by Court of Claims Act §11 (c).

Under the circumstances it is not necessary for me to reach the Defendant's application for leave to pursue summary judgment, or, as contained in its reply papers herein, a request for permission to amend its bill of particulars.

Accordingly, based upon the above, I have no discretion, and must grant the motion and dismiss the claim.

July 21, 2000
Rochester, New York

Judge of the Court of Claims