New York State Court of Claims

New York State Court of Claims
HORETH v. THE STATE OF NEW YORK, # 2007-031-020, Claim No. 112731, Motion No. M-72407, Cross-Motion No. CM-72450


Notice of Intention served before Claimant was appointed executrix of decedent's estate was valid. Claimant's motion to strike affirmative defense granted. Claimant's motion for leave to file a late claim denied as moot. Defendant's motion to dismiss claim as untimely denied.

Case information

UID: 2007-031-020
Claimant(s): HILDA HORETH as Executrix of the Estate of RONALD P. ALBRIGHT
Claimant short name: HORETH
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 112731
Motion number(s): M-72407
Cross-motion number(s): CM-72450
Claimant's attorney: BURKE, ALBRIGHT, HARTER & REDDY, LLP
Defendant's attorney: HON. ANDREW M. CUOMO
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 30, 2007
City: Rochester
Official citation: 15 Misc 3d 1129(A)
Appellate results:
See also (multicaptioned case)


The following papers, numbered 1 to 8, were read on motion by Claimant to strike the fifth affirmative defense asserted in Defendant's answer or, alternatively, for permission to file a late claim, and on cross-motion by Defendant for dismissal of the claim:

1. Claimant's Notice of Motion (M-72407), filed October 16, 2006;

2. Affidavit of Johnson S. Albright, II, Esq., sworn to October 12, 2006, with attached exhibits;

3. Defendant's Notice of Cross-Motion (CM-72450), filed October 25, 2006;

4. Affirmation of Thomas G. Ramsay, Esq., dated October 23, 2006, with attached exhibit;

5. Reply Affidavit of Johnson S. Albright, II, Esq., sworn to November 3, 2006, with attached exhibits;

6. Reply Affirmation of Thomas G. Ramsay, Esq., dated November 10, 2006, with attached exhibit;

7. Affidavit of Albert Carmichael, sworn to November 9, 2006;

8. Filed Documents: Claim and Verified Answer.


Claimant's decedent, Ronald P. Albright, was killed in a motorcycle accident on November 11, 2004. At the time of the accident Mr. Albright was eastbound on Route 104 on the Route 590 overpass, just west of the Irondequoit Bay Bridge in the town of Irondequoit, New York. Mr. Albright crashed his motorcycle and then, tragically, while he was lying in the road, he was run over and killed by another vehicle.

A notice of intention to file a claim was served upon Defendant on January 28, 2005, less than 90 days after the accident. Claimant was appointed as the executrix of Mr. Albright's estate on April 19, 2005. In the underlying claim in this matter, filed on September 11, 2006, Claimant alleges that Mr. Albright lost control of his motorcycle when he encountered a large manure spill on the roadway. Claimant alleges that the manure spill constituted a dangerous condition. According to Claimant, Defendant had notice of this dangerous condition and yet either failed or refused to clean the spill or to warn motorists of its presence within a reasonable amount of time. Claimant also alleges that Defendant negligently failed to repair several overhead lights at the scene of the accident, which impaired the vision of motorists and, therefore, contributed to the accident.


In its verified answer, filed on September 26, 2006, Defendant asserts as its fifth affirmative defense that the claim is untimely. With motion M-72407, Claimant requests an order striking this affirmative defense, or alternatively, granting permission to file a late claim. With its cross-motion (CM-72450), Defendant seeks dismissal of the claim as untimely. In addition to the documents identified above, I heard oral argument from counsel on November 15, 2006.

Defendant argues that the claim is untimely and must be dismissed because Claimant failed to file a claim or serve a notice of intention to file a claim within 90 days of being appointed executrix of Mr. Albright's estate. As stated above, Claimant was appointed on April 19, 2005, and the claim was filed on September 11, 2006. According to Defendant, the notice of intention served by Claimant on January 28, 2005 was a nullity because, at that point in time, Claimant had not yet been appointed executrix and, therefore, she "lacked the capacity to serve or to verify the Notice of Intention" (Ramsay Aff., par. 7).

In support of its motion to strike Defendant's fifth affirmative defense, Claimant cites to authority which clearly indicates that a notice of intention may be filed before a representative of the estate is appointed. Specifically, Claimant argues that Matter of Johnson v State of New York (49 AD2d 136) addresses this precise issue. In Johnson, as here, the Claimant served a notice of intention to file a claim within 90 days of the accident but before being appointed as representative of decedent's estate. The Court of Claims (Lengyel, J.) dismissed the claim, finding that the notice of intention was a nullity. The Appellate Division, Third Department, however, overturned the dismissal of the claim stating:

"While it has often been stated that section 10 [of the Court of Claims Act] must be strictly construed, there is no warrant for going beyond a strict construction and reading into the statute any additional requirements. The statute as written does not require that one have formal status as legal representative before a notice of intention may be filed, so long as the notice is timely filed and the claim itself is ultimately timely filed by a claimant with the status of authorized legal representative. Such a requirement would not only be purposeless, but would be contrary to the legislative objective of extending the time for filing."

(Matter of Johnson, supra, at 139)(1)

In response to this argument, Defendant argues that Johnson, as well as all other cases cited by Claimant, were decided before the seminal case of Lichtenstein v State of New York (252 AD2d 921, affd 93 NY2d 911). According to Defendant, Lichtenstein changed the rule set forth in Johnson and "resulted in a substantial clarification of the conditions precedent for initiating wrongful death litigation in the Court of Claims" (Ramsay Aff., par. 11). Defendant also cites the recent Court of Claims decision in Tooks v State of New York (Ct Cl January 10, 2006 [Claim No. 106164, Motion No. M-69401], Sise, P. J., UID# 2006-028-500) which, citing Lichtenstein, apparently dismissed a claim under circumstances similar to those here. A reading of Tooks does appear to support Defendant's contentions.

However, I find both Lichtenstein and Tooks distinguishable. Lichtenstein does, as Defendant asserts, stand for the proposition that an action for wrongful death may not be commenced by anyone but a duly appointed representative. In Lichtenstein, the Court of Appeals strictly construed the requirements of Court of Claims Act 10(2) and dismissed the claim, finding that an action can only be initiated by a qualified representative of the decedent's estate. Lichtenstein did not involve an analysis of the validity of a notice of intention, but whether the action had been properly initiated. While a claim initiates an action, the notice of intention does not.

The claim in Tooks was dismissed because, regardless of the validity of the notice of intention, the claim was served more than two years after the date of accrual. Accordingly, any discussion relating to the validity of the notice of intention was dictum. To the extent that this decision is at odds with Tooks, I note that I perhaps do not read Lichtenstein as broadly as my learned colleague. As Lichtenstein did not involve a notice of intention, it neither expressly nor implicitly overruled Johnson and the line of cases which stand for the proposition that any interested party may serve the notice of intention.

Further, although Defendant correctly points out that the cases cited by Claimant were all determined prior to Lichtenstein, I note that Dedivanaj v State of New York (Ct Cl, November 1, 2006 [Claim No. 112194, Motion Nos. M-72092 and CM-72204], Scuccimarra, J., UID# 2006-030-580) which was decided after both Lichtenstein and Tooks, is on all fours factually with this case, more so, in fact, than either Lichtenstein or Tooks. Specifically, Claimants in Dedivanaj served a notice of intention within 90 days of the accident but prior to being appointed administrator of the estates of the two decedents. Claimants neither served a notice of intention, nor filed a claim within 90 days of being appointed representatives of the estates in question. Thereafter, a claim was filed which, while otherwise timely, relied upon the validity of the notice of intention for its timeliness. In that matter, Judge Scuccimarra determined, as do I, that formal appointment as representative of the estate was not required for purposes of serving the notice of intention.

Accordingly, I find that the notice of intention served in this matter was timely and properly served. The claim served within two years of accrual of the cause of action is likewise timely.

For these reasons it is hereby

ORDERED, that Claimant's motion to strike the fifth affirmative defense set forth in Defendant's Verified Answer is granted. Accordingly, Claimant's motion for permission to file a late claim is denied as moot. It is further

ORDERED, that Defendant's cross-motion for dismissal of the claim is denied.

March 30, 2007

Rochester, New York


Judge of the Court of Claims

1. As of August 2, 1995, notices of intention are no longer filed with the clerk of the Court; service upon the Attorney General is all that is required (see Court of Claims Act 11(a)(I); L. 1995, C. 466).