New York State Court of Claims

New York State Court of Claims

O’NEIL v. NEW YORK STATE DEPARTMENT OF EDUCATION; TAMMY CARR RODGERS, #2007-038-524, , Motion No. M-72728


Synopsis



Case Information

UID:
2007-038-524
Claimant(s):
AIMEE L. O’NEIL, Parent and MORGAN A. BAKER, Child
Claimant short name:
O’NEIL
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE DEPARTMENT OF EDUCATION; TAMMY CARR RODGERS
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72728
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
Aimee O’Neil, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Patricia M. Bordonaro and Saul Aronson Assistant Attorneys General
Third-party defendant’s attorney:

Signature date:
March 30, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This motion for permission to file a late claim for damages sustained by claimant Morgan A. Baker as a result of the alleged negligence of the named defendants must be denied as unnecessary. The acts complained of in the proposed claim occurred in October 1997. An exhibit to claimants’ motion establishes that Morgan Baker was born on April 8, 1996. The instant motion was filed in December 2006, a point in time at which Morgan Baker remains under the legal disability of infancy (see CPLR 105 [j]). Accordingly, her time within which to file and serve her claim as of right has not expired (see Court of Claims Act § 10 [5]; McKenzie v State of New York, Motion No. M-71968, Schweitzer, J., [Sept. 22, 2006]). Therefore, she does not need permission to file a late claim (see Boland v State of New York, 30 NY2d 337, 343 [1972]; Brown v State of New York, UID # 2006-009-027, Motion No. M-71127, Midey, Jr., J. [May 8, 2006]; DuPont v State of New York, UID #2003-018-223, Motion No. M-66294, Fitzpatrick, J. [May 28, 2003]), as she may file and serve her claim as of right within two years after the disability is removed (see Boland v State of New York, supra at 343).[1]

To the extent the motion to file a late claim is addressed to injuries suffered by Morgan Baker’s mother, claimant Aimee O’Neil, individually, it must be filed “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules” (Court of Claims Act § 10 [6]). The failure to file the motion within the prescribed time period is a jurisdictional defect which precludes the court from granting such a motion (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 [1997]). While claimant O’Neil does not state the nature of injuries sustained by her, if any, the statute of limitations that is generally applicable to actions based upon negligence is three years (see CPLR 214). As the claim accrued in October 1997, the controlling statute of limitations expired in October 2000. This motion for permission to file and serve a late claim on behalf of the adult claimant was not filed until December 2006. Thus, it comes before the Court beyond the expiration of the applicable statute of limitations, and its merits cannot be considered.

Motion No. M-72728 is DENIED.


March 30, 2007
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered:


(1) Notice of Motion, dated December 20, 2006;

(2) Proposed Claim, verified November 14, 2006, with exhibits;

(3) Affirmation in Opposition of Patricia M. Bordonaro, A.A.G., dated December 26, 2006;

(4) “Notice of Motion” dated December 20, 2006, with exhibits;

(5) Affirmation in Opposition to Motion to Late File of Saul Aronson, A.A.G.,

dated January 18, 2007, with exhibit A.

[1]. In a document styled as a notice of motion to file a late claim, dated December 20, 2006 and filed on January 8, 2007, claimant requests production of documents relating to the allegations set forth in the prior notice of motion and supporting papers. The second submission, and the response thereto of Assistant Attorney General Saul Aronson, dated January 18, 2007, have been deemed additional submissions on the initial motion. To the extent claimant continues to desire such documents, she must seek them within the litigation of a properly filed claim on behalf of Morgan A. Baker.