New York State Court of Claims

New York State Court of Claims

LIPSON v. JILL A. DUNN, #2004-028-538, Claim No. NONE, Motion No. M-67919


Synopsis


Motion is denied without prejudice. Movant may not proceed by power of attorney on behalf of another.


Case Information

UID:
2004-028-538
Claimant(s):
DR. STEVEN M. LIPSON
Claimant short name:
LIPSON
Footnote (claimant name) :

Defendant(s):
JILL A. DUNN
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-67919
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
DR. STEVEN M. LIPSON, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Michele M. WallsAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 10, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on the Movant's application for permission to late file a claim pursuant to Court of Claims Act §10(6):


1) Notice of Motion and Supporting Affidavit of Steven M. Lipson filed

January 14, 2004 (Lipson Affidavit) with annexed Exhibits 1-7;

2) Affirmation in Opposition of Assistant Attorney General Michele M. Walls filed February 17, 2004 (Walls Affirmation) with annexed Exhibits A-B;

3) Reply Affirmation of Steven M. Lipson filed March 8, 2004 (Lipson Reply) with annexed Exhibits A-B


Movant, proceeding pro se, seeks permission to late file a Claim arising from damages to an automobile owned by his daughter, Tracy Lipson. Defendant opposes the application. Movant, in an attempt to address the primary deficiency raised by Defendant, namely, Movant's lack of standing, has submitted a proposed Amended Claim naming his daughter as Claimant and a "power of attorney" (Lipson Reply Exhibit A), whereby she authorizes her father to act on her behalf.

The instant application is denied without prejudice. The initial application, made by Movant Steven Lipson, may not be amended to substitute a different Claimant. In reviewing the application as made by Steven Lipson, and in accordance with the statutory factors (see Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees' Retirement System, Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981), it is clear that the most important factor - the appearance of merit (see Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1) - can not be met as Mr. Lipson is not the record owner of the damaged vehicle.

Assuming arguendo that the Court were able to permit the motion to be amended to reflect a new Claimant, that application must likewise be denied as Mr. Lipson, a non-lawyer, may not appear on his daughter's behalf and prosecute either the motion or the claim (see CPLR 321; Judiciary Law §§ 478, 484; Matter of Maldonado v New York State Board of Parole, 102 Misc 2d 880). The Court makes no determination with regard to the merits of a proper application by Ms. Lipson.

Accordingly, upon consideration of the statutory factors, and for the foregoing reasons, the motion is denied.


June 10, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims