New York State Court of Claims

New York State Court of Claims

A.L. v. THE STATE OF NEW YORK, #2005-016-017, Claim No. 104368, Motion Nos. M-69191, CM-69313


Synopsis


Motion to vacate dismissal was granted and cross-motion for summary judgment dismissing the claim was denied as moot.

Case Information

UID:
2005-016-017
Claimant(s):
A.L., an infant by his mother and natural guardian J.L. and J.L., individually
Claimant short name:
A.L.
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104368
Motion number(s):
M-69191
Cross-motion number(s):
CM-69313
Judge:
Alan C. Marin
Claimant's attorney:
Scott Baron & Associates, P.C.By: Thomas G. Panettiere, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Gail P. Pierce-Siponen, Esq., AAG
Third-party defendant's attorney:

Signature date:
February 28, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is claimants' motion for an order vacating the Court's September 20, 2004 Order dismissing this claim and compelling completion of outstanding discovery. Defendant cross-moves, in the event the claim is restored, for summary judgment dismissing it. In the underlying claim, it is alleged that the infant claimant was sexually assaulted on June 5 and 6, 1999 at the Rosedale Group Home in Queens.

The Court's September 20, 2004 Order dismissing the claim read as follows:

On August 3, 2004, the Court sent counsel for claimants a letter by certified mail, return receipt requested, which stated as follows:

In a Stipulation and Order entered into on January 29, 2004, it was directed that the note of issue in this case be served and filed by June 15, 2004. Our file contains no such document. Please advise as to the status of this case. If a response is not provided within thirty (30) days of your receipt of this letter, the claim will be subject to dismissal.

Such letter was delivered on August 5, 2004. Counsel failed to respond in the thirty days thereafter. Accordingly, IT IS ORDERED that claim no. 104368 be dismissed pursuant to §19.3 of the Court of Claims Act.


Claimants' attorney explains that the note of issue was not filed as directed because discovery was not completed. He further states that he sent an August 24, 2004 letter in response to the Court's August 3, 2004 letter, although no such letter was received by the Court.

Defendant states that since the claim was filed on June 4, 2001, "claimant[s] [have] not served a single demand for discovery upon the State of New York, nor [have] the claimant[s] ever sought to schedule a State witness for deposition," and that claimants have been waiting for the outcome of their case in Queens County Supreme Court, where they have sued the Rosedale Group Home, its owner Beverly Francis and the City of New York. See ¶¶4 and 5 of the November 8, 2004 affirmation of Gail P. Pierce-Siponen (the "Pierce-Siponen Aff.").

Defendant previously moved to dismiss on the ground that the State of New York does not own, operate or maintain the Rosedale Group Home. That motion was denied by the Hon. Alton R. Waldon, Jr. in an April 25, 2002 Decision and Order. Judge Waldon noted that while the State had submitted an affidavit indicating that its records showed that the site of the assault was not owned, operated or maintained by the State Office of Mental Retardation and Developmental Disabilities, it did not indicate whether "another State Agency [was] responsible for this facility and, if not, what entity actually owns, operates and maintains the premises." Judge Waldon denied the motion to dismiss "without prejudice to [the State's] ability to bring a summary judgment motion . . ."

The State has now submitted documentation indicating that the Rosedale Group Home is owned by Beverly Francis, and maintains that the only State connection is that the State licenses the Rosedale Group Home. See ¶19 of the Pierce-Siponen Aff. and exhibit G thereto. Licensing, without more, is insufficient to implicate State liability. See, e.g., Thomas v State of New York, Ct Cl dated February 13, 2002 (unreported, claim no. 96750, motion nos. M-58161, M-59717 and CM-58459, Marin, J., UID #2002-016-015[1]). Claimants have submitted nothing on this summary judgment motion to suggest any State nexus beyond licensing.

In view of the foregoing, having reviewed the submissions[2], IT IS ORDERED that motion no. M-69191 be denied and that cross-motion no. CM-69313 be denied as moot.




February 28, 2005
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]This and other decisions of the Court of Claims may be found on the Court's website:
  2. [2]The following were reviewed: claimants' notice of motion with affirmation in support and exhibits A through I; defendant's notice of cross-motion with attached affirmation and exhibits A through J; claimants' "Affirmation in Opposition to Cross-Motion and in Reply to Defendant's Opposition" with exhibits A through C; and defendant's "Affirmation in Opposition to Claimant's Motion to Vacate Dismissal by Court and in Support of Summary Judgement Motion."