New York State Court of Claims

New York State Court of Claims

SCHETTINI v. THE STATE OF NEW YORK, #2001-014-512, Claim No. 101225, Motion No. M-62578


Defendant's motion to dismiss an appropriation claim, pursuant to Court of Claims Act §15, is denied.

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):

S. Michael Nadel
Claimant's attorney:
Flower, Medalie & MarkowitzBy: Alan Wasser
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Martin Rowley, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 14, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the defendant's motion to dismiss the claim pursuant to Court of Claims Act §15: Notice of Motion, Affirmation and Exhibits annexed; Affirmation in Opposition.

Subsequent to the filing of this claim for the appropriation of property, a creditor of the claimant, "Gillespie Holdings Co., Inc. and/or Frank Gillespie, individually," succeeded to the claimant's interest in this claim, pursuant to an Order of the United States Bankruptcy Court for the Eastern District of New York (Exhibit B to the defendant's submission). A little less than seven months later, the defendant served the motion herein, which seeks dismissal of the claim pursuant to Court of Claims Act §15.

The pertinent provisions of Court of Claims Act §15 are:
[I]n the event that by assignment . . . , some person other than the claimant named in [the] claim has succeeded to the interest of one of the claimants named in [the] claim, it shall be the duty of . . . the person who succeeded claimant in interest to said claim or any interest therein within six months after he becomes invested with the title to said claim or any interest therein, to secure from the court of claims and serve upon the attorney-general an order substituting him as party to said claim instead of the party named in said claim, . . . , and in the event that he fails so to do, the court of claims on motion of the attorney-general, on such notice as the court may require, to all parties who have appeared in said action or proceeding or to the assignee or successor of the claimant may dismiss said claim.
Upon the record before the Court, the claimant's successor has not sought any order from the Court; nor is there any indication in the defendant's submission that the successor o the claimant's interest in this claim has been notified of the instant motion to dismiss the claim. While the language of the statute can be understood to permit the Court, upon proper application by the Attorney General, to dispense with notice to the successor in interest to a claim, no such application has been made, nor has counsel for the defendant offered any reason why the Court should entertain a motion to dismiss this claim without first notifying the successor to the claimant's interest. The defendant's motion is denied.

February 14, 2001
New York, New York

Judge of the Court of Claims