New York State Court of Claims

New York State Court of Claims

GRIST v. THE STATE OF NEW YORK, #2005-032-025, Claim No. N/A, Motion No. M-69209


Motion for permission to file a late claim is denied where his aunt, the person moving for permission to commence the action, has not been appointed representative of the decedent's estate and where more than two years have elapsed since the death of the decedent.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
Adrienne Daniel Grist, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
February 25, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's proposed claim alleges that on September 19, 2002, employees of the Department of Correctional Services (DOCS) failed to take appropriate action to prevent the death of movant's nephew, Mark Rogers, who was incarcerated at Clinton Correctional Facility. She alleges that he had asked to see mental health workers but his request was denied. Early on the morning of September 19, 2002, he hung himself in his cell. Movant further alleges prison guards observed him hanging in his cell but made no attempt to cut him down for approximately one hour and that no medical personnel arrived until twenty minutes after he was cut down.

In her reply papers, movant states that she was granted custody of her nephew in 1981 after her mother, Mark Rogers' grandmother, passed away. Her sister, Mark's mother, had died sometime earlier. She was also listed as his next of kin in DOCS records. Movant does not, however, provide any letters of administration or other documents to establish that she has been appointed the personal representative for her nephew. Such appointment is necessary before an individual can commence an action for wrongful death of the person whom they represent (EPTL

§5-4.1; Court of Claims Act §10[2]).

In addition, the statute of limitations applicable to a cause of action for wrongful death is two years (EPTL §5-4.1; see also Court of Claims Act §10[2][requiring that a claim for wrongful death be filed within two years after the death of the decedent under all circumstances]). Any cause of action for wrongful death based on the death of Mark Rogers would have to be commenced by September 19, 2004, and before such an action could be commenced, movant or some other individual would have to be appointed as executor or administrator of his estate. In short, it is too late for movant to be able to maintain this action, even if she were to obtain letters of administration.

Movant's allegations are quite tragic. However, she does not have standing to pursue an action for wrongful death on behalf of her nephew and such action would be time barred. The motion is denied.

February 25, 2005
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim:

1. Notice of Motion and Supporting Affidavit of Adrienne Daniel Grist, with annexed Exhibits;

2. Affidavit in Opposition of Michael C. Rizzo, Esq., AAG;

3. Reply Affidavit of Adrienne Daniel Grist, with annexed Exhibits;

Filed papers: None