New York State Court of Claims

New York State Court of Claims

NIGHTINGALE v. THE STATE OF NEW YORK, #2004-109-536, Claim No. 108410, Motion No. M-68254


Synopsis


Case Information

UID:
2004-109-536
Claimant(s):
HOLLY A. NIGHTINGALE, Individually and as Parent and Natural Guardian of AUTUMN HAYLEE SHEMWELL, 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:
NIGHTINGALE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
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):
108410
Motion number(s):
M-68254
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
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:
April 15, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 asks the claim be discontinued with prejudice.

This claim was commenced by Holly A. Nightingale, individually, and as parent and natural guardian of her infant daughter, Autumn Haylee Shemwell, regarding abuse allegedly suffered by the infant while enrolled in a State licenced day care facility from September 2002 to August 2003. Ms. Nightingale alleges that she selected the day care facility operated by Kerry J. Loucks-Eldred in Oneonta because the State "[h]ad issued and renewed the operating license of the aforesaid day care facility." (Claim, ¶ 5). The claim asserts a negligence cause of action on behalf of the infant, as well as a derivative claim on behalf of the mother. This 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 a dismissal without prejudice because "[n]umerous questions on liability and damages exist." (Affidavit of Holly Ann Nightingale, ¶ 7). 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." The State urges this court to conclude that granting 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). 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 parent, Holly A. Nightingale, whom would not be entitled to the tolling provision of CCA 10 (5). As such, the derivative claim of Ms. Nightingale will be discontinued without prejudice, subject however to all applicable limitations periods.


Accordingly, for the reasons stated above, it is ordered that claimant's motion, Motion No. M-68254, for an order discontinuing Claim No. 108410 is GRANTED without prejudice in accordance with the terms of this Decision & Order.


April 15, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
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-68254, dated March 23, 2004, and filed March 26, 2004.
  4. Affidavit of Holly Ann Nightingale, in support of motion, sworn to March 19, 2004, with attached exhibits.
  5. Affirmation of Theodoros Basdekis, Esq., in support of motion dated March 23, 2004.
  6. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated April 7, 2004, and filed April 9, 2004.