New York State Court of Claims

New York State Court of Claims

HASSETT v. THE STATE OF NEW YORK and THE NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION, #2003-031-002, , Motion No. M-65865


Synopsis


Claimant's motion for permission to file a late claim is denied as unnecessary.

Case Information

UID:
2003-031-002
Claimant(s):
DIANE HASSETT AS PARENT AND NATURAL GUARDIAN of SEAN HASSETT (Minor)
Claimant short name:
HASSETT
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and THE NEW YORK STATE OFFICE OF PARKS, RECREATION AND HISTORIC PRESERVATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-65865
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
BARRY S. DOLGOFF, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: PAUL VOLCY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 23, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers, numbered 1 to 5, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed September 30, 2002;
2. Affidavit of Barry S. Dolgoff, Esq., sworn to September 24, 2002, with attached exhibits;
3. Affidavit of Diane Hassett, sworn to September 24, 2002;
4. Affirmation (denominated affidavit) of Paul Volcy, Esq., affirmed November 8, 2002, with attached exhibits;
5. Defendant's Memorandum of Law, dated November 8, 2002. This is the motion of Diane Hassett, as parent and natural guardian of Sean Hassett, for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). The proposed claim alleges that, on June 29, 2001, Sean Hassett was injured while playing in the playground area at Woodlawn Beach State Park, a facility owned and operated by Defendant. This playground area is actually on the beach and Claimant's son impaled his right foot when he stepped on what was apparently a piece of metal rod buried in the sand.

Defendant correctly points out that, as Sean Hassett is still a minor, his time within which to file a claim has not yet elapsed. For this reason, and out of caution and prudence, Defendant opposes Claimant's motion to the extent that it attempts to assert a derivative cause of action on behalf of Diane Hassett. I do not believe that Claimant has attempted to assert such a derivative claim, however, to the extent that Claimant has, I find that the proposed claim fails to adequately set forth the merits of such a derivative claim.

The proposed claim does not state Sean Hassett's current age, however, the motion papers do allege that he is a minor. Additionally, the State Park Police report attached to the motion papers indicate that Sean was seven years old at the time of the accident, which would make him, at most, nine at this time. As a minor, Claimant is under a legal disability as defined by CPLR § 208. Pursuant to CCA § 10(5): "If the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." The Court of Appeals determined in Henry v City of New York (94 NY2d 275, 279) that an infant Claimant's time to file and serve a claim is tolled during that child's infancy, and that this tolling is not terminated by the acts of a guardian or legal representative in taking steps to pursue the infant's claim.

Based upon the foregoing, Claimant's motion is denied as unnecessary. To the extent that Claimant's motion intended to assert a derivative claim on behalf of Diane Hassett, the motion is denied, as the proposed claim fails to adequately set forth such a cause of action.

January 23, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims