New York State Court of Claims

New York State Court of Claims

BRIGGS v. STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and NEW YORK STATE CANAL CORPORATION, #2003-015-348, Claim No. 107694, Motion No. M-66930


Synopsis


Absent a judicial limitation of the powers of a temporary administrator she is authorized by section 905 of the Surrogate Court Procedure Act to sue and be sued on behalf of the decedent's estate and was therefore a proper party to commence the instant action. Claimant's failure to specifically alleged her appointment as temporary administrator in the claim itself not found to be a jurisdictional defect. Defendant's motion to dismiss or to alternatively strike additional allegations of negligence in the claim is denied.

Case Information

UID:
2003-015-348
Claimant(s):
JANICE BRIGGS, as Administratrix of the Estate of DOUGLAS J. BESWICK, (Deceased)
Claimant short name:
BRIGGS
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK, NEW YORK STATE THRUWAY AUTHORITY and NEW YORK STATE CANAL CORPORATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107694
Motion number(s):
M-66930
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Conway & Kirby, LLPBy: Thomas A. Conway, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Belinda A. WagnerAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 4, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendants' motion for an order dismissing the claim pursuant to CPLR 3211 (a) (2) and (3) and sections 10 (2) and 11 (b) of the Court of Claims Act is denied. The instant claim filed May 2, 2003 seeks to recover damages for the wrongful death and conscious pain and suffering of Douglas J. Beswick as a result of an alleged accidental drowning in the Mohawk River which occurred at approximately 3:15 p.m. on February 3, 2002.

Defendants in this pre-answer motion seek an order dismissing the claim on the ground that Janice Briggs lacks capacity to maintain a wrongful death action absent an allegation in the body of the claim that she is the executrix or administratrix of the estate of Douglas J. Beswick citing, Liddell v State of New York, 182 Misc 2d 133, affd 278 AD2d 928 and Lichtenstein v State of New York, 93 NY2d 911. Defendants further allege that Janice Briggs was not the duly appointed administratrix of the estate of Douglas Beswick at the time she served and filed the claim and that therefore she lacked standing to bring the action.

In the alternative, the defendants assert that certain allegations contained in the claim but not set forth in the notices of intention should be stricken or dismissed. Specifically, defense counsel avers that paragraphs 22 [j] and 22 [k] of the claim contain factual allegations not alleged in the notices of intention served separately on the State of New York, the New York State Thruway Authority and the New York State Canal Corporation. The referenced paragraphs allege that the defendants negligently failed to provide a means for another individual to rescue the decedent (paragraph 22 [j]) or for the decedent to rescue himself (paragraph 22 [k]). The inclusion of allegations beyond the scope of the allegations set forth in the various notices of intention served in this action are claimed to have deprived the Court of subject matter jurisdiction requiring the claim's dismissal.

Claimant opposed the motion by affirmation of counsel, copies of a Schenectady County Surrogate's Court Decree dated April 29, 2003 appointing Janice Briggs Temporary Administrator of the Estate of Douglas Beswick and issuing temporary Letters of Administration (Claimant's Exhibit A) and a Schenectady County Surrogate's Court Decree dated May 13, 2003 appointing Ms. Briggs as Administrator and issuing Letters of Administration (Claimant's Exhibit B). Claimant's counsel alleges that Janice Briggs is the duly authorized and appointed administratrix of the estate of her late son Douglas Beswick, the decedent. He argues that Janice Briggs was appointed temporary administrator of her son's estate on April 29, 2003 and that the temporary letters issued in conjunction with her appointment extended all the powers of an administratrix to the claimant including the power to bring this action in the Court of Claims. Counsel further argues that claimant continues to possess the authority to maintain the action as a result of the permanent letters of administration issued on May 13, 2003 by the Hon. Barry D. Kramer, Surrogate of Schenectady County.

Claimant also disputes the defendants' assertion that the additional allegations set forth in the claim are an impermissible expansion of the allegations contained in the notices of intention. Claimant argues that the defendants' failure to provide any reasonable means to rescue an accident victim from the river or to provide a means which would allow a person to extricate him or herself from the river is inextricably entwined with the defendants' duty to prevent persons from being exposed to a dangerous condition. Claimant asserts that the purpose of a notice of intention is to provide the State with fair and timely notice of an incident by bringing the general nature of the claim to its attention.

The defendants' reliance upon Liddell v State of New York, 182 Misc 2d 133, affd 278 AD2d 928, supra and Lichtenstein v State of New York, 93 NY2d 911 is misplaced. While both of these cases point out that the formal appointment of an executor or administrator must precede the commencement of an action in this Court pursuant to Court of Claims Act § 10 (2) and (3) the instant case is distinguishable from Liddell and Lichtenstein.

First, in both of the cases cited by defense counsel the claims at issue were filed before the issuance of any Letters of Administration, in Lichtenstein the claim was filed before an application for Letters of Administration had been submitted. In addition, the powers of a temporary administrator were changed significantly in 1993 to make them the same as those of a preliminary executor except for the power to distribute the estate to beneficiaries. Under current law the surrogate can limit the temporary administrator's powers but absent such a restriction by the Court the temporary administrator is vested with all powers granted by the Estates, Powers and Trusts Law (EPTL) § 11-1.1 (see, Turano, Practice Commentaries, McKinney's Cons Laws of NY Book 58A, Surrogate's Court Procedure Act (SCPA) at 681). A temporary administrator's general powers are set forth in section 903 of the SCPA and the specific power of a temporary administrator to sue or be sued on a decedent's behalf is set forth in section 905 of the SCPA.

The instant claimant was appointed temporary administrator of her late son's estate and received temporary letters of administration on April 29, 2003. She served and filed the instant claim on May 2, 2003. Claimant's failure to include in the claim a specific averment that she had been appointed and was, in fact, the temporary administratrix at the time she filed the claim is not a jurisdictional defect requiring dismissal. Nor was claimant's appointment as temporary administratrix so limited as to deprive her of authority to commence this action. Since the instant claim was served and filed within 90 days of claimant's appointment as temporary administrator the Court need not address the issue of whether claimant was authorized to serve the aforementioned notices of intention as they relate to a wrongful death cause of action. Insofar as the notices of intention relate to a cause of action arising from the decedent's conscious pain and suffering, Court of Claims Act § 10 (3) merely requires that a notice of intention to file a claim be served within 90 days after the claim's accrual (see, Pelnick v State of New York, 171 AD2d 734). On the motion defense counsel has conceded that the notices of intention served on April 30, 2002 were timely based on an accrual date of February 3, 2002.

Since neither the Decree Appointing a Temporary Administrator nor the Temporary Letters of Administration issued to claimant on April 29, 2003 contain a judicial limitation of the temporary administrator's power to commence the instant claim it must be deemed to have been properly commenced pursuant to the powers granted under SCPA § § 903 and 905 and defendants' motion to dismiss the claim for lack of capacity is denied.

As noted above defendants also seek dismissal on the ground that the claim contained specific factual averments not included in the notices of intention. The notices of intention served by the claimant state the date, time and location of the occurrence complained of and that the decedent "was caused to slip and fall down the embankment and fall into the river" resulting in his death. The notices go on to allege that the State was negligent in its design and maintenance of the Mohawk Hudson Bikeway such that the area constituted a dangerous condition, noting particularly the failure to fence or otherwise protect against falls such as that suffered by the decedent.

It is well settled that the purpose of a notice of intention "is to provide the State with fair and timely notice by bringing the general nature of the claim to its attention" (Schwartzberg v State of New York, 121 Misc 2d 1095; Hood v State of New York, 113 Misc 404). The Appellate Division, Fourth Department in Schmidt v State of New York, 279 AD2d 62 recently observed (at pp. 65-66):
In our view, the notice of intention serves two purposes: it extends the time for claimants to file a claim from 90 days to two years from the accrual of the claim (see, Court of Claims Act § 10 [3]; Hodge v State of New York, 213 AD2d 766, 767) and it enables the State to conduct a prompt investigation of a possible claim in order to ascertain the existence and extent of the State's liability (see, Sega v State of New York, 246 AD2d 753, 755, lv denied 92 NY2d 805).

It is further well settled that "[b]ecause the notice of intention does not serve the same purpose as the claim itself, it does not have to meet the 'more stringent requirements imposed upon the latter' (Epps v State of New York, 199 AD2d 914). As long as the notice of intention sufficiently sets forth the general nature of the claim with enough detail to enable the State to investigate, it is unnecessary that a cause of action be stated" (Ferrugia v State of New York, 237 AD2d 858, 859).

The notices of intention adequately set forth a potential cause of action against the State for creating and/or maintaining a dangerous condition on the Mohawk Hudson Bikeway and Park near Lock 8. The fact that the notices of intention referenced the existence of an icy condition which caused a fall and that there existed no means for restraining or preventing the decedent's ultimate slide into the frigid water is not determinative of the contours of the claim ultimately filed. A notice of intention is not a necessary prerequisite to suit in this Court and has not been found to establish immovable parameters into which a claimant must pour all of the allegations he or she intends to include in the claim. The inclusion in the claim of an allegation that the State was negligent not only in allowing an icy condition to exist and failing to erect proper barriers but also by providing no means of rescue once the slip and fall into the waters had occurred is only a logical extension of the allegations of which the notices of intention had provided the State both notice and an opportunity to investigate. The inclusion of these additional allegations of negligence in the claim, arising from the same incident addressed in the notices of intention, were not an inappropriate expansion of the notices of intention and the defendants' motion must be denied.

Defendants' motion to dismiss the claim for lack of capacity to sue or to strike the factual allegations set forth in paragraphs 22 (j) and 22 (k) of the instant claim is hereby denied.


September 4, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims

The court considered the following papers:
  1. Notice motion dated June 6, 2003;
  2. Affirmation of Belinda A. Wagner dated June 6, 2003 with exhibits
  3. Affirmation of Thomas A. Conway dated June 30, 2003 with exhibits;
  4. Affirmation of Belinda A. Wagner dated July 1, 2003