New York State Court of Claims

New York State Court of Claims

PERRY v. THE STATE OF NEW YORK, #2004-016-068, Claim No. 96563, Motion No. M-68907


Motion for permission to withdraw claim without prejudice was denied.

Case Information

PAUL PERRY, an alleged incompetent, by his Mother and Guardian Ad Litem, DOROTHY PERRY The caption has been amended to reflect that the sole proper defendant in this case is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant in this case is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Brand Brand & BurkeBy: Ronald C. Burke, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Victor J. D'Angelo, Esq., AAG
Third-party defendant's attorney:

Signature date:
October 22, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Dorothy Perry as Mother and Guardian Ad Litem for Paul Perry, seeking an Order permitting her to execute a stipulation of discontinuance without prejudice. In the underlying claim, it is alleged that on July 13, 1995, Paul Perry was attacked by another patient at Kingsboro Psychiatric Center, causing permanent injury to his right eye. It is also alleged that because of a delay in medical treatment, Mr. Perry subsequently lost his right eye. In its answer, defendant asserted a counterclaim pursuant to Mental Hygiene Law §43.03 in the amount of $1,202,679. Counsel for claimant estimates that in the approximately 87 months since the time of the answer, additional charges of $2,201,757 have accrued, bringing the State's counterclaim to more than $3,000,000, to date.

Dorothy Perry makes this motion because on the advice of counsel, "even if we prevail at trial, the amount awarded by the Court may be much less than the counterclaim." See ¶1 of Ms. Perry's affidavit, annexed as exhibit C to claimant's motion papers.

Counsel points out that "statutory authority and case law, including this Court's decisions, support the State's right to set-off any amounts awarded to a claimant . . ." However, claimant seeks to discontinue the action "without" prejudice so that the claim could be recommenced "[i]n the event that the law is changed to permit a recovery by a patient such as Mr. Perry, without being subject to the State's right to a set-off . . ."[1] See ¶5 of the August 3, 2004 affirmation of Ronald C. Burke.

Defendant states that it "does not object to the instant claim being discontinued but does object to it being discontinued without prejudice to re-file in the event of a change in the law . . . To permit the re-filing of this claim at some unspecified date in the future would only serve to prejudice the defendant caused by the fading memory and disappearance of witnesses." See ¶2 of the August 19, 2004 affirmation of Victor J. D'Angelo.

Claimant has submitted no authority which supports permitting a discontinuance without prejudice to re-file at some unknown future date, and thus having reviewed the submissions,[2] the requested relief must be denied. Accordingly, IT IS ORDERED that motion no. M-68907 be denied.

October 22, 2004
New York, New York

Judge of the Court of Claims

  1. [1]Counsel notes that time limitations ordinarily applicable are tolled here because of Mr. Perry's mental incompetency.
  2. [2]The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A-D; and defendant's affirmation in opposition.