New York State Court of Claims

New York State Court of Claims

BRITTON v. THE STATE OF NEW YORK, #2001-001-035, Claim No. 96836, Motion No. M-63323


Claimant's motion to amend the caption is granted and a trial date certain is set.

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):

Susan Phillips Read
Claimant's attorney:
Joshua J. Effron, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Martin Rowley, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
June 22, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant's motion to amend the caption: Notice of Motion, dated March 28 and filed March 30, 2001; Affirmation of Joshua J. Effron, Esq., dated March 28 and filed March 30, 2001, with annexed Exhibits 1-7; Affirmation in Opposition of Martin Rowley, Esq., AAG, dated April 6 and filed April 10, 2001; Britton v State of New York, Ct Cl, unreported decision filed July 5, 2000, Read, P. J., Motion No. M-60240; and the claim, undated and filed August 21, 1997.

The underlying facts of this appropriation claim are set forth in the Court's prior motion decision (Britton v State of New York, Ct Cl, unreported decision filed July 5, 2000, Read, P. J., Motion No. M-60240 ["prior decision and order"]) and need not be repeated for purposes of resolving the limited issue presented here. In relevant part, the prior decision and order directed claimant Todd M. Britton ("'claimant") to amend the caption of the claim to substitute the proper legal representative for deceased claimant Randall S. Britton within 30 days of the filing date of the order.

This motion to amend the caption was not filed until March 30, 2001, well beyond the

30-day time period set by the Court. By way of excusing this apparent lapse of diligence, counsel for claimant explains, among other things, that on July 6, 2000 he conferred with counsel for the State and forwarded for signature a stipulation to amend the caption. Counsel for claimant included a copy of the documents from the Surrogate's Court of Albany County, which granted claimant limited letters of administration for the estate of Randall S. Britton, Sr. (Affirmation of Joshua J. Effron, Esq., dated March 28 and filed March 30, 2001 ["Effron Aff."], ¶ 10, Exh. 2-3). The limitation applied "only as to the settlement of a cause of action" (Effron Aff., Exh. 3). It appears that both parties were aware that the limitation referred to an unrelated wrongful death action at one time contemplated by the estate (Effron Aff., ¶¶ 5-6, 12, Exh. 6 [letter from Martin Rowley to Joshua J. Effron, dated August 1, 2000]); however, the State refused to sign the stipulation based on this limitation.

The Court can find no impediment to amending the caption in the documents from Surrogate's Court: both parties agree that the limitation does not apply to this appropriation cause of action and, on its face, the limitation applies only to "settlement of a cause of action"--not to the commencement or prosecution of one. While the Court acknowledges claimant's delay in bringing this motion, the parties should have been able to work out such a simple matter without resort to motion practice. In particular, motion practice ultimately became necessary, it would seem, only because of the State's baffling unwillingness to enter into what certainly appears to have been a straightforward and timely submitted stipulation to amend the caption. For this reason, the Court declines to suspend the interest as requested by defendant.

Based on the foregoing, the Court grants claimant's motion to amend the caption to read "Todd M. Britton, Individually and as Administrator of the Estate of Randall S. Britton, deceased v The State of New York." In addition, the Court sets this claim for trial commencing Monday, October 1, 2001, at 10:00 a.m. in the Justice Building, 7th floor, Courtroom 4, Albany, New York. This trial date is firm; the parties are referred to 22 NYCRR 206.15 and 22 NYCRR 206.17.

June 22, 2001
Albany, New York

Judge of the Court of Claims