New York State Court of Claims

New York State Court of Claims

PETTERSON v. New York, #2000-015-023, Claim No. 096989, Motion No. M-61207


Attorney General can be directed to have a representative appointed for a deceased claimant.

Case Information

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):

Claimant's attorney:
Eduardo Petterson, Pro SeNo Appearance
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, Esquire,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 29, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant for an order pursuant to Court of Claims Act § 15 dismissing the claim upon the ground that the claimant is deceased and no order of substitution has been secured and filed substituting a representative of the estate as the claimant is denied and the Attorney General is directed to take proceedings in the appropriate Surrogate Court to have Eduardo Petterson, Sr., or Gloria Perez Petterson appointed as the representative of claimant's estate. This is a claim to recover for personal injuries allegedly sustained by the decedent when he fell while crossing the Western Gateway Bridge between Scotia and Schenectady, allegedly due to a defective sidewalk owned and maintained by the State of New York. In a decision and order filed on February 3, 1999, Judge King granted the motion of claimant's counsel to withdraw as the attorney of record upon the ground that claimant had not been in communication with his counsel. In his decision and order Judge King stated, "[e]very indication suggests that claimant has decided to abandon this claim". By this motion, the Attorney General seeks dismissal of the claim upon the basis that, in fact, claimant passed away on March 2, 1999, and more than six months have elapsed without an order of substitution.

Court of Claims Act § 15 directs that a motion of this nature shall be brought "on such notice as the court may require". The statute contemplates the use of an order to show cause so that a judge of this Court may determine who should be given notice of the motion, and in what manner. The failure of the Attorney General to secure such a direction from the Court will result in the denial of the dismissal motion (Cawthorn v State of New York, 205 Misc 234). It appears from the obituary annexed to the motion papers that the claimant is survived by his parents, as well as an infant son residing on Long Island. Under the circumstances of this case, the appropriate procedure is for the Attorney General to secure an order appointing a representative of the estate and thereafter apply for an order of substitution (see, De Rijdt v Straile Co., 58 Misc 2d 543).

The Clerk of the Court is directed to serve a copy of this decision and order upon Eduardo Petterson Sr. and Gloria Perez Petterson at the address of 204 South Reynolds Street, Scotia, New York 12302.

March 29, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers

  1. Notice of motion dated February 8, 2000;
  2. Affirmation of Michael C. Rizzo dated February 8, 2000, with exhibits.