New York State Court of Claims

New York State Court of Claims

THOMAS v. THE STATE OF NEW YORK, #2007-036-227, Claim No. 112662, Motion No. M-73332


Case Information

JOYCE THOMAS, as Administratrix of the Estate of RASHEIDA THOMAS, and JOYCE THOMAS, Individually
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:
NAPOLI BERN RIPKA, LLPBy: Christian B. Coppinger, Esq.
Defendant’s attorney:
By: Donna R. Silverglad, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 21, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant’s motion to reargue[1] its motion to dismiss the claim because of claimant’s lack of capacity to sue, for which the court rendered its Decision and Order of dismissal filed on April 19, 2007. The motion to reargue made pursuant to CPLR § 2221 is directed to that portion of the court’s decision which dismissed the claim “without prejudice” to recommencement of the action under CPLR § 205 (a).[2] According to defendant, the court overlooked or misapprehended New York law in reaching this portion of its decision. The claim is against the State’s University Hospital of Brooklyn for medical malpractice and the wrongful death of claimant’s daughter who was being treated for acute sickle cell crisis and had undergone a splenectomy at the hospital. The claim was brought by Joyce Thomas, mother of the decedent, individually and “as Administratrix of the Estate of Rasheida Thomas.”[3]

Claimant opposes the motion on grounds that defendant comes to court with unclean hands, that the basis for reargument is a legal issue which was not addressed by defendant in the original motion, and that the legal authority upon which defendant relies is not apposite. Claimant’s counsel notes in his affirmation that, ultimately, he did not oppose defendant’s motion because he relied on defense counsel’s assurance, in her letter dated January 10, 2007 to the court (on which he was copied), that claimant could re-file the claim within six months under CPLR § 205.[4] Defense counsel wrote her letter in opposing claimant’s request for a one-month adjournment of the dismissal motion sought by claimant’s counsel to afford claimant additional time to obtain the requisite authority from Surrogate’s Court to pursue the claim. In defense counsel’s letter (Exhibit B to claimant’s affirmation in opposition to the motion to reargue), she stated:
It is respectfully submitted, that based upon the holdings of Carrick v. Central General Hospital, 51 N.Y.2d 242, 434 N.Y.S.2d 130 (1980), Mendez v. Yoo, 23 A.D.3d 353, 806 N.Y.S.2d 67 (2d Dept. 2005), and Bernardez v. City of New York, 100 A.D.2d 798, 474 N.Y.S.2d 728 (1st Dept. 1984), said claim must be dismissed in that Ms. Thomas did not have capacity to bring said suit at the time it was brought. A reading of the aforesaid cases clearly demonstrate that Ms. Thomas and counsel may commence an action within six (6) months of dismissal pursuant to CPLR Sec. 205.

A motion to reargue is addressed to the sound discretion of the court and is properly granted upon a showing that the court overlooked or misapprehended the facts or law in determining the prior motion without including any matters of fact not offered on the prior motion. (CPLR 2221 (d) (2).) (E.g. Peak v Northway Travel Trailers Inc., 260 AD2d 840, 842 [3d Dept 1999].)

On this motion to reargue, defense counsel raises for the first time the issue of untimeliness of the claim because of claimant’s alleged lack of standing to bring the action. The issue was not raised on the original motion to dismiss. Defendant did not make a pre-answer motion to dismiss based on claimant’s alleged failure to comply with the time limitations of the Court of Claims Act, nor did it interpose an affirmative defense in its answer on this basis, even as it included an affirmative defense based on claimant’s alleged lack of standing.[5] For purposes of this action, defendant thus has waived any objection to the claim’s untimeliness. Court of Claims Act § 11 (c).

Although defendant’s notice of motion to reargue asserts that “the Court overlooked or misapprehended controlling New York State law” in dismissing the claim without prejudice, defense counsel actually was the one to advise both the court and claimant that various legal authorities (cited in her letter) “clearly demonstrate that Ms. Thomas and counsel may commence an action within six (6) months of dismissal pursuant to CPLR Sec. 205.” Defense counsel acknowledged this in her reply papers, that is, “the precedents [were] cited by me and relied upon by this Court in rendering its decision.” Defense counsel now maintains the authorities she cited do not apply to an action in the Court of Claims, that she “misapprehended and overlooked the controlling law” due to her own “inexperience,” and that her supervisor informed her that she had erred.

Under all the circumstances, the court grants the motion to reargue. To prevent what the court perceives would otherwise be manifest injustice, the court exercises its inherent power to vacate its original Decision and Order filed April 19, 2007, and hereby reinstates the claim for the reasons and on the condition set forth below. (Court of Claims Act §§ 9 (8), 9 (9); Ladd v Stevenson, 112 NY 325 (1889); McMahon v City of New York, 105 AD2d 101 (1st Dept 1984); see Siegel, New York Practice 4th Ed. section 426; see also Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C5015:1, 5015:11.)[6]

The court overlooked, and may have misapprehended, aspects of the law pertaining to claimant’s status as an administratrix of her daughter’s estate. Because claimant’s counsel was induced by defendant not to oppose the motion to dismiss, the court was not furnished with an explanation of the powers of a “voluntary administrator” under Article 13 of the Surrogate’s Court Procedure Act (“SCPA”). The court also did not deem it necessary to request such an explanation from either party in view of defendant’s then posture that claimant could recommence the action under CPLR § 205 (a). Although the certificate of the Chief Clerk of the Surrogate’s Court pertaining to claimant’s powers as a “voluntary administrator” does not state that her powers include authority to bring a wrongful death action – thereby evidencing a lack of capacity – the court nevertheless viewed claimant’s filing of the claim as sufficient to be deemed a filing “by an administrator” under Court of Claims Act § 10 (2), thus rendering the claim “timely commenced” for purposes of CPLR § 205 (a). See Haydamach v State of New York, UID #2006-033-227, Claim No. 111249, Motion No. M-72052, Lack, J. [Dec. 29, 2006]; cfSignature Health Center v State of New York, 42 AD3d 678 (3d Dept 2007); Morris v State of New York, 27 AD3d 282 (1st Dept 2006). This is to be distinguished from the facts of Lichtenstein v State of New York, 93 NY2d 911 (1999) where no letters of administration were in place at the time the claim was filed and claimant commenced her action “as Proposed Administratrix” before she ever was an “administrator” of any sort.

On this motion to reargue, the court has reviewed the SCPA and related provisions of the Estates, Powers and Trusts Law (“EPTL”) pertaining to aspects of the appointment of various types of administrators and their powers. A “voluntary administrator” is one who acts regarding an estate with a gross value of $20,000 or less “without the formality of court administration.” In such cases, next of kin obtain their authority under a summary procedure by filing a short form affidavit with the clerk of the Surrogate’s Court (SCPA § 1304). No appointment by Surrogate’s Court order is involved. SCPA § 1306 (3) expressly provides that the voluntary administrator “shall have no power to enforce a claim for the wrongful death of or a claim for personal injuries to the decedent.” Given this statutory prohibition, claimant’s status and capacity arguably may be closer to the facts of Lichtenstein – certainly different from what the court understood them to be at the time it granted defendant’s motion to dismiss without prejudice.

In light of what transpired here, the question thus becomes whether defendant should be afforded the opportunity to revive an objection to the timeliness of the claim filed in this action as part of its opposition to recommencement of the claim, either before the court here or before another court later. Regardless of the precedents initially cited by defendant and on which defense counsel may – or may not – have misplaced reliance for purposes of CPLR § 205 (a) (see the court’s citations of Court of Claims § 205 (a) cases, supra), defendant’s waiver under Court of Claims Act § 11 (c) of the objection to the timeliness of the claim in this action remains. For the court to allow its dismissal of the claim to stand under these circumstances would be unfair. Defendant will have obtained a second chance to assert the untimely filing of this claim only by having induced claimant’s counsel not to submit papers in opposition to its motion to dismiss in representing that claimant satisfied the prerequisites for recommencement of the action under CPLR § 205 (a); and also by having persuaded the court that it was unnecessary to grant claimant’s request for a longer adjournment so she might obtain the necessary authority to pursue her existing claim.

The court is of the view that it also would be unfair to the defendant for the court to order reinstatement of this claim except on terms which will return the parties to the situation that existed at the time counsel for claimant was led to believe defendant would not oppose recommencement of the action under CPLR § 205 (a). Back in January of this year, when counsel for claimant asked the court for a one-month adjournment for claimant to obtain the necessary authority to pursue the claim, a substantial period of time already had passed since claimant first was allowed to bring this action upon her motion to file late, and still more time now has elapsed since the court’s initial Decision and Order was filed in April. Claimant now will be afforded no more time than she requested then. If she cannot obtain authority from the Surrogate’s Court within one month from the filing of this Decision and Order, any adverse consequences which may attend her ability to pursue the claim stemming from a dismissal here will be viewed as entirely of her own doing.

Defendant’s motion to reargue having been granted herein, the Decision and Order of the Court filed April 19, 2007 is hereby vacated and the claim is hereby reinstated on condition that within thirty (30) days of the filing of this Decision and Order the court is to be presented with legally acceptable evidence that claimant has obtained the requisite authority from Surrogate’s Court to proceed with the claim. If such evidence is not so furnished, the claim is dismissed.

August 21, 2007
New York, New York

Judge of the Court of Claims

[1].The court considered the following papers on the motion to reargue: defendant’s notice of motion filed May 3, 2007 and supporting papers, claimant’s affirmation in opposition filed May 30, 2007, and defendant’s reply affirmation filed June 12, 2007.
[2].The court considered the following papers on the motion to dismiss: defendant’s notice of motion filed December 22, 2006 and supporting papers, claimant’s letter dated January 10, 2007, defendant’s letters dated January 10 and 11, 2007, claim filed August 21, 2006.
[3].Although the caption of the claim is styled as quoted, the Certificate of the Chief Clerk of the Surrogate’s Court attested that on October 21, 2003, claimant duly qualified as “Voluntary Administrator of the Estate of Rasheida Thomas pursuant to Article 13 of the Surrogate’s Court Act.” (emphasis added)
[4].CPLR 205 (a) provides that a timely commenced action terminated for any reason other than a voluntary discontinuance, failure to obtain personal jurisdiction over the defendant, neglect to prosecute, or by final judgment on the merits may be commenced upon the same transaction within six months after termination if the new action would have been timely commenced at the time the prior action was commenced.
[5].This claim was filed on August 21, 2006, pursuant to a Decision and Order of the court filed July 5, 2006, granting claimant’s motion for permission to file a late claim. (See Thomas v State of New York, Claim No. 110380, Motion No. M-70584, July 5, 2006, Waldon, J.) On that motion, claimant had annexed the Certificate of the Chief Clerk of the Surrogate’s Court, n 3, supra. On the late claim motion, defendant did not raise the issue of claimant’s alleged lack of capacity to bring the claim and did not oppose the motion based on the untimeliness of the claim stemming from claimant’s alleged lack of capacity. Defendant also did not appeal Judge Waldon’s decision permitting claimant to file a late claim.
[6]. Claimant’s opposition to the motion to reargue requests the court to “deny the defendant’s motions in its [sic] entirety, and for such other and further relief as this Court deems just, proper and equitable.” Defendant’s motion to reargue also requests “such other and further relief as this Court deems right and proper.”