New York State Court of Claims

New York State Court of Claims

SANTOS v. THE STATE OF NEW YORK, #2003-009-52, Claim No. 107126, Motion No. M-66359


Synopsis


Defendant's motion to dismiss the claim was granted, upon the Court finding that claimant lacked the requisite legal capacity to sue the State, since she has not been appointed administrator of decedent's estate.

Case Information

UID:
2003-009-52
Claimant(s):
ANNA SANTOS, Individually and as Administratrix of the Estate of JUAN ALMODOVAR, Deceased
Claimant short name:
SANTOS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107126
Motion number(s):
M-66359
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
ANDREW F. PLASSE, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Heather R. Rubinstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 22, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim. Defendant contends that the Court lacks jurisdiction over the claim based upon the failure of claimant to comply with § 10 and § 11 of the Court of Claims Act; that claimant has failed to state a cause of action against the State; that the claim is barred by applicable statutes of limitation; that claimant lacks standing to bring this claim; and that claimant has failed to file a certificate of merit as required by CPLR § 3012-a.

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


Answering Affirmation 3

Supplemental Answering Affirmation 4


Filed Papers: Claim

On December 27, 2002, this claim was filed with the Clerk of the Court of Claims seeking damages for the alleged wrongful death of decedent Juan Almodovar. Two causes of action were asserted in the claim, both sounding in wrongful death.[1] This claim was served upon the Attorney General on December 24, 2002.[2]

The jurisdictional requirements for instituting a claim alleging wrongful death against the State are governed by Court of Claims Act § 10(2). This section requires that such a claim be filed and served by an executor or administrator within 90 days of the appointment of such executor or administrator. The section further provides that in any event, a wrongful death claim must be filed and served within two years from the death of the decedent.

In this matter, it is not disputed that the filing and service of the claim herein was made prior to any appointment of the claimant as administratrix. Furthermore, to this date it does not appear that claimant has received her appointment as administratrix. The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State, and therefore they must be strictly construed (see, Dreger v New York State Thruway Auth., 81 NY2d 721, 724).

Since claimant commenced this action prior to and without receiving letters of administration, she lacked the requisite legal capacity to sue the State, and did not properly commence her action. Her claim is therefore considered a nullity, and must be dismissed (Lichtenstein v State of New York, 252 AD2d 921; affd 93 NY2d 911; Davis v State of New York, 22 AD2d733).

Based on the foregoing, it is not necessary to address defendant's other contentions seeking dismissal of this claim.

Accordingly, it is

ORDERED, that Motion No. M-66359 is hereby GRANTED; and it is further

ORDERED, that Claim No. 107126 is hereby DISMISSED.


October 22, 2003
Syracuse, New York

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




[1] Although the caption of this claim makes reference to an individual claim of Anna Santos, such a claim has not been asserted. Furthermore, the Court notes that the claim was signed by Anna Santos "as Administratrix of the Estate of JUAN ALMODOVAR".
[2] As set forth in defendant's moving papers, a notice of intention to file a claim was previously served upon the Attorney General on March 30, 2001 (see Exhibit A to Items 1,2).