New York State Court of Claims

New York State Court of Claims

OUSLEY-WINTERS v. THE STATE OF NEW YORK, #2000-013-031, Claim No. 88454, Motion No. M-61804


Synopsis


Motion to substitute guardian of property of sole heir of deceased Claimant. Interim order entered to give guardian time to be appointed administrator and to submit proof of appointment.

Case Information

UID:
2000-013-031
Claimant(s):
OLEVIA OUSLEY-WINTERS
Claimant short name:
OUSLEY-WINTERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
88454
Motion number(s):
M-61804
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
GOLDSTEIN, GOLDSTEIN & RIKON, P.C.BY: MICHAEL RIKON, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 21, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On July 17, 2000, the following papers were read on the motion of Goldstein, Goldstein & Rikon, P. C. to permit Mr. Anthony Winters to be substituted as Claimant:

1. Notice of Motion

2. Affirmation in Support and Annexed Exhibits.


Claimant, Olevia Ousley-Winters, filed this claim in December 1993, seeking to recover damages for medical malpractice and medical neglect she alleged she endured while she was in the custody of the Department of Correctional Services. She died intestate on July 23, 1998. In the present application, her attorneys, Goldstein, Goldstein & Rikon, P. C., represent that Mrs. Winters' son, Anthony Curtiss Winters, a minor child, is Mrs. Winters' only heir. They seek to have Anthony Winters substituted as Claimant. Mr. Winters is alleged to have been "legally separated"[1] from Claimant at the time of Claimant's death, but has since been appointed the guardian of the property of Anthony Curtiss Winters (see, SCPA §1701 et seq.). Defendant has taken no position on this application.

An action for personal injury survives the death of the person in whose favor the cause of action existed, and may be brought or continued by the "personal representative" of the decedent (EPTL §11-3.2[b]; Court of Claims Act §15). A "personal representative" is someone who has received letters to administer the estate (EPTL §1-2.13). Status as a "committee, conservator, curator, custodian, [or] guardian..." is not sufficient to make one a personal representative and does not give one the right to bring or continue an action of behalf of a decedent (EPTL §§11-3.2[b] and 1-2.13; Court of Claims Act §15; Lichtenstein v State of New York, 93 NY2d 911, 913; Smith v State of New York, 41 NY2d 1063, 1065).

Letters of administration are ordinarily granted to the highest ranking eligible distributee of the intestate's estate (see, SCPA §1001). A person who has had a "final decree of separation" from the decedent rendered against him is not considered a distributee under the law of intestate descent (EPTL §§4-1.1 and 5-1.2[a][4]). However, he or she may serve as the administrator of the estate and receive letters of administration to the extent that he or she is acting as a guardian of the property of an infant who is the sole distributee (see, SCPA §1001[2]; Matter of Resnick, 76 Misc 2d 541).

Mr. Winters did not submit proof that he had qualified as administrator and received letters of administration from the Surrogate's Court in Westchester County, the county in which Claimant resided at the time of her death. His separation from Claimant would apparently preclude him from being a distributee (EPTL §§4-1.1 and 5-1.2[a][4]). However, his status as the guardian of the property of Anthony Curtiss Winters, who is alleged to be the sole heir of Claimant's estate, would give him standing to apply to serve as the administrator of Claimant's estate (see, SCPA §1001[2]; Matter of Resnick, 76 Misc 2d 541, supra). This matter is therefore adjourned until December 20, 2000 to give Mr. Winters time to obtain and submit proof that he has qualified to serve as the administrator of Claimant's estate.


September 21, 2000
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




[1]
In an earlier application to withdraw, Claimant's counsel stated that Mr. Winters was "legally separated" from the Claimant. It was never made clear whether that separation was pursuant to a final decree of separation or a separation agreement; however, Claimant's counsel represented that Mr. Winters' marital status precluded him from being appointed administrator without first obtaining letters of guardianship for Anthony Curtiss Winters.