New York State Court of Claims

New York State Court of Claims

CLARK v. THE STATE OF NEW YORK, #2003-009-14, Claim No. 106791, Motion Nos. M-66400, CM-66497


Synopsis


Defendant's motion to dismiss based upon untimely service was denied, as the limitation period was tolled because of claimant's infancy. Claimant's cross-motion for permission to serve and file a late claim was therefore denied as moot.

Case Information

UID:
2003-009-14
Claimant(s):
CARLA CLARK, as Natural Parent and Guardian of MICHAEL RIOS, an Infant over the age of Fourteen Years The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
CLARK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106791
Motion number(s):
M-66400
Cross-motion number(s):
CM-66497
Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
BRINDISI, MURAD & BRINDISI-PEARLMAN, LLP
BY: Stephanie A. Palmer, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
April 24, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought a motion (Motion No. M-66400) seeking an order dismissing the claim based upon untimely service. Claimant has responded with a cross-motion (Cross-Motion No. CM-66497) not only opposing the relief sought, but also, in the alternative, seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation, with Exhibits 1,2


Notice of Cross-Motion, Claimant's Affidavit, with Exhibits 3,4

Memorandum of Law 5

In this claim, claimant Carla L. Clark, as the natural parent and guardian of Michael Rios, seeks damages for injuries allegedly suffered by her son due to the intentional acts and/or negligence of the State. The incident forming the basis of this claim allegedly occurred on October 20, 2001 at the Louis Gossett Jr. Residential Center, where he was then residing.

This claim for damages was filed with the Clerk of the Court of Claims on October 15, 2002, and an amended claim was filed with the Clerk of the Court of Claims on December 9, 2002. The amended claim was served upon the Attorney General on January 15, 2003.

Based on these dates of service and filing, defendant now seeks an order dismissing the claim, contending that the claim was not filed with the Court or served upon the Attorney General within 90 days after accrual of the claim, as required by Court of Claims Act, § 10(3) and § 10(3-b).

It is well settled, however, that a child's infancy tolls all limitation periods (Court of Claims Act, § 10[5]; Barrett v State of New York, 161 AD2d 61, affd 78 NY2d 1111).

The Court notes, in passing, that the tolling provided by Court of Claims Act, § 10(5), does not extend to any derivative claims which may be presented. In this matter, however, no such derivative claim has been asserted.

Accordingly, based upon the foregoing, it is

ORDERED, that defendant's Motion No. M-66400, seeking an order dismissing the claim for untimely service, is hereby DENIED; and it is further

ORDERED, that claimant's Cross-Motion No. CM-66497, seeking permission to serve and file a late claim, is hereby denied as moot.


April 24, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims