New York State Court of Claims

New York State Court of Claims

WELCH v. THE STATE OF NEW YORK, #2004-019-538, Claim No. 108407, Motion No. M-68279


Claimant's motion for an order of discontinue without prejudice is granted.

Case Information

EVELYN WELCH, Individually and as Legal Guardian of ISABELLA RENE WELCH, an infant The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
THE LAW FIRM OF SCARZAFAVA & BASDEKISBY: Theodoros Basdekis, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Carol A. Cocchiola, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
May 4, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for an order directing this claim be discontinued without prejudice pursuant to CPLR 3217 (b). The State of New York (hereinafter "State") does not oppose the discontinuance, but requests the claim be discontinued with prejudice.

This claim was commenced by Evelyn Welch, individually, and as legal guardian of the infant, Isabella Rene Welch, regarding abuse allegedly suffered by the infant while enrolled in a State licensed day care facility operated by Kerry J. Loucks-Eldred in Oneonta, New York sometime from April 2001 through July 2003. The claim alleges that said day care facility was recommended by third parties, but that Ms. Welch selected the day care facility because the State "[h]ad issued and renewed the operating license of the aforesaid day care facility." (Claim, ¶ 6). The claim asserts a negligence cause of action on behalf of the infant, as well as a derivative claim on behalf of the legal guardian. The claim was filed with the Clerk of the Court on October 16, 2003. The State filed a Verified Answer on November 17, 2003.

Claimant requests this "[a]ction be discontinued a [sic] this time without prejudice because numerous questions on liability and damages exist." (Affidavit of Evelyn Welch, ¶ 7; emphasis in original). Moreover, claimant argues that a dismissal without prejudice is proper in light of CCA 10 (5) which states that "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." Here, the infant, born on January 23, 2001, is currently 3 years old. The State urges this court to conclude that a discontinuance without prejudice "[s]o that [the infant] can theoretically present the claim 17 years from now...would prejudice the State." (Affirmation of Carol A. Cocchiola, AAG, ¶ 7). Despite the State's arguments to the contrary, the court finds that the infant claimant is entitled to a discontinuance without prejudice pursuant to CCA 10 (5).

That having been said, however, claimant does not separately address the stated individual derivative claim of the legal guardian, Evelyn Welch. Claimant has not presented any argument that Ms. Welch is also entitled to the tolling provision afforded infants under CCA 10 (5). In any event, the court will permit Ms. Welch's derivative claim to be discontinued without prejudice, although such dismissal is subject to all applicable limitations periods.

In view of the foregoing, the court need not address claimant's attorney's alternative form of relief requested for the first time in a reply affirmation for an order permitting him to withdraw as counsel.

Accordingly, for the reasons stated above, it is ordered that claimant's motion, Motion No. M-68279, for an order discontinuing Claim No. 108407 is GRANTED WITHOUT PREJUDICE in accordance with the terms of this Decision & Order.

May 4, 2004
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Claim, filed October 16, 2003.
  2. Verified Answer, filed November 17, 2003.
  3. Notice of Motion No. M-68279, dated March 31, 2004, and filed April 2, 2004.
  4. Affidavit of Evelyn Welch, in support of motion, sworn to March 30, 2004, with attached exhibits.
  5. Affirmation of Theodoros Basdekis, Esq., in support of motion, dated March 31, 2004.
  6. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated April 21, 2004, and filed April 23, 2004.
  7. Reply of Theodoros Basdekis, Esq., in support of motion, dated April 22, 2004, and filed April 26, 2004.