New York State Court of Claims

New York State Court of Claims

O’NEIL v. NEW YORK STATE DEPT. OF EDUCATION and CATHERINE A. BEBEE, #2007-038-526, , Motion No. M-72415


Synopsis



Case Information

UID:
2007-038-526
Claimant(s):
AIMEE O’NEIL, Parent; MORGAN A. BAKER, Child and SAMANTHA S. MAZZOLI, Child
Claimant short name:
O’NEIL
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE DEPT. OF EDUCATION and CATHERINE A. BEBEE
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72415
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 is a motion for permission to file a late claim for damages allegedly sustained by claimants Aimee O’Neil, Morgan A. Baker and Samantha S. Mazzoli. The proposed claim alleges that defendant Catherine Bebee forcibly took custody of claimant Aimee O’Neil’s children in Florida on December 22, 2000. The motion to file a late claim was filed on October 10, 2006. For the reasons that follow, the motion will be denied in its entirety. To the extent the motion to file a late claim is addressed to injuries suffered by claimant Aimee O’Neil, individually, such a motion 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]).

Claimant’s notice of motion states that the proposed claim is based upon theories to which a three-year statute of limitations applies (see CPLR 214), and also that it is based upon fraud, to which a six-year statute of limitations applies (see CPLR 213 [8]). A court that is evaluating a cause of action for purposes of determining the applicable statute of limitations is not bound by the claimant’s characterization of the nature of the cause of action, but must examine and determine the true gravamen of the cause of action (see Western Elec. Co. v Brenner, 41 NY2d 291, 293 [1977]; Gold v New York State Business Group, Inc., 255 AD2d 628, 630 n [1998]; Marine Midland Bank, N.A. v Jerry Hamam, Inc., 96 AD2d 1137 [4th Dept 1983]). “The elements of fraud include a misrepresentation, known by the defendant to be false and made for the purpose of inducing the plaintiff to rely upon it, justifiable reliance and damages” (Mora v RGB, Inc., 17 AD3d 849, 852 [3d Dept 2005]; see Channel Master Corp. v Aluminum Limited Sales, Inc., 4 NY2d 403, 406-407 [1958]). Here, the proposed claim is utterly devoid of factual allegations that would support any of the elements of a fraud claim, and accordingly, the six-year statute of limitations based on a cause of action for fraud is inapplicable.

The proposed claim and supporting papers allege that defendant Bebee acted negligently and incompetently, and that the state defendant is liable under the doctrine of respondeat superior. These allegations support causes of action to which a three-year statute of limitations apply (see CPLR 214). As the claim accrued in December 2000, the applicable statute of limitations expired in December 2003. This motion for permission to file and serve a late claim on behalf of Aimee O’Neil was not filed until October 2006. Thus, it comes before the Court beyond the time periods set forth in Article 2 of the CPLR, and its merits cannot be considered.

At the time this motion was made, claimant Morgan Baker was ten years old,[1] and thus, she 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). Therefore, the motion to file a late claim on behalf of Morgan Baker is denied as unnecessary.

With respect to claimant Samantha S. Mazzoli, the caption of the proposed claim indicates that she is a child. However, the motion papers do not state her age or date of birth, and thus, the Court cannot determine whether she is under the age of eighteen and therefore is an infant entitled to an infancy toll (see CPLR 105 [j]; CPLR 208). If she was an infant at the time this motion to file a late claim was made, the motion would be denied as unnecessary, for the reasons stated supra, in that part of this decision that pertains to Morgan Baker. If Samantha Mazzoli is not an infant, then the motion must be denied because it is untimely, for the reasons stated supra, in that part of this decision that pertains to Aimee O’Neil.

Motion No. M-72415 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 October 5, 2006;

(2) Proposed Claim, verified August 30, 2006;

(3) Affirmation in Opposition of Patricia M. Bordonaro, A.A.G., dated December 14, 2006;

(4) Notice of Motion, dated December 20, 2006[2];

(5) Affirmation in Opposition of Saul Aronson, A.A.G., dated January 24, 2007, with exhibit A.


[1]. A document submitted by claimant Aimee O’Neil in support of an unrelated motion for permission to file a late claim (see O’Neil v New York State Department of Education & ano., Motion No. M-72728, DeBow, J. [Mar. 30, 2007]) establishes that Morgan Baker’s date of birth is April 8, 1996.
[2]. Claimant filed a notice of motion and supporting papers on October 10, 2006. Thereafter, claimant filed another notice of motion on January 5, 2007, which was supported by exhibits but not a proposed claim. It is apparent that the two motions are addressed to the same incident, and thus, the second notice of motion has been designated as an additional submission on the initial motion.