New York State Court of Claims

New York State Court of Claims

DENARDO v. THE STATE OF NEW YORK, #2005-028-555, Claim No. 109944, Motion No. M-69581


Synopsis


Upon the Court's Order to Show Cause - the Court grants claimant's application to withdraw the Claim. Claimant's guardian attempted to commence the Claim on behalf of her incompetent son prior to her appointment.

Case Information

UID:
2005-028-555
Claimant(s):
JAMES DENARDO
Claimant short name:
DENARDO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109944
Motion number(s):
M-69581
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
KEEGAN, KEEGAN & STRUTT, LLPBY: John W. Keegan, Jr., Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Katharine S. Brooks, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read upon the Court's Order to Show Cause:


1) Order to Show Cause filed January 12, 2005;


2) Affirmation of John W. Keegan, Jr., Esq., (Keegan Affirmation) and Affidavit of Diane Denardo (Denardo Affidavit) filed March 3, 2005.


3) Affidavit of Catherine Naveed (Naveed Affidavit) filed March 3, 2005.


Filed Papers: Claim filed October 12, 2004.

In Lepkowski v State of New York, 1 NY3d 201, the Court of Appeals, in dicta, indicated that Court of Claims Act § 11(b) "embraces CPLR 3022's remedy for lapses in verification" and, pursuant to CPLR 3022, "[a] defendant who does not notify the adverse party's attorney with due diligence waives any objection to an absent or defective verification." In the aftermath of Lepkowski, this Court has encountered a number of claims, including the instant Claim, that are filed with the Clerk of the Court (see Court of Claims Act § 11) but remain unanswered having been rejected as a nullity.

James Denardo was grievously injured in a single car accident on July 16, 2004. As a result of the accident and the depth of his injuries, James Denardo's mother, Diane Denardo petitioned the Westchester County Supreme Court to be appointed his guardian. While that petition was pending, Diane Denardo executed, served and filed a Claim seeking compensation for her son's injuries and did so in his name. The Claim was rejected by the Attorney General. Thereafter, Diane Denardo was appointed guardian of her son and his affairs. Counsel, cognizant of the defect, attempted to remedy same by entering into a stipulation of discontinuance with Defendant, indicating that a claim by Ms. Denardo in her representative capacity would be served and filed.

Against this backdrop, the Court issued the instant Order to Show Cause aware only that the Claim had been rejected as a nullity.

In response to the Order to Show Cause, Claimant requests permission to withdraw the instant Claim and again indicates a claim by the guardian in her representative capacity will be filed pursuant to the authority of Court of Claims Act § 10(5) (see DeStefano v State of New York, Ct Cl, O'Rourke, J., Claim No. None, UID #2001-017-615, [unreported]; see also Henry v City of New York, 94 NY2d 275). Defendant's only response is that an unverified Claim was served (Naveed Affidavit ¶ 4).

The request is granted and the Clerk of the Court is directed to mark the Claim withdrawn (see CPLR 3217).


August 2, 2005
Albany, New York

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