New York State Court of Claims

New York State Court of Claims

MARLO v. THE STATE OF NEW YORK, #2009-016-009, Claim No. 115260, Motion Nos. M-75526, CM-75822


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):
Alan C. Marin
Claimant’s attorney:
Kim I. McHale & Associates, P.C.By: John C. Naccarato, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Felicia G. Notaro, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 11, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants move for an order: (1) amending the caption to include the names of co-administrators Cathie Faulkner and Faye Marlo; and (2) striking defendant’s fifth and seventh affirmative defenses. The fifth affirmative defense alleges that the claim is fatally defective as it “fails to name any claimants,” i.e. does not name Faulkner and Marlo as administrators of the estate. The seventh affirmative defense alleges that the court lacks jurisdiction because the notice of intention was improperly served by Priority Mail rather than personally or by certified mail, return receipt requested. Defendant cross-moves to dismiss.

In the underlying claim, it is alleged that on May 23, 2006, Deshawn Marlo was a resident at Linden Gardens, a New York State Office of Mental Retardation and Developmental Disabilities facility. It is further alleged that on such date, Mr. Marlo was allowed to leave the premises on a bicycle without supervision or safety equipment, and that soon after his departure, he was the victim of a fatal truck accident. On August 17, 2006, i.e., 86 days after Marlo’s death, the State was served with a notice of intention.[1] At the time of the service of the notice of intention, administrators had not yet been appointed for Marlo’s estate, and the caption names “Estate of Deshawn Marlo” as claimant. The notice of intention was signed by Cathie Faulkner as “Proposed Administrator of Estate.”[2] On May 15, 2008, Cathie Faulkner and Faye Marlo were named as co-administrators of the estate of Deshawn Marlo. See exhibit B to claimants’ moving papers. On May 19, 2008, a claim was filed, and such claim was served on the State on both May 20 and May 21, 2008. It is apparently undisputed that the claim was properly served. Like the notice of intention, the claim names “Estate of Deshawn Marlo” as claimant.

With regard to a cause of action for wrongful death, §10.2 of the Court of Claims Act (the “Act”) provides that such a claim must be served and filed within ninety days of the appointment of an administrator and, in any event, within two years of death. There is no dispute that the claim in this case was served within these time frames, without consideration of the notice of intention.

As to a cause of action for conscious pain and suffering, §10.3 of the Act requires that either a notice of intention be served, or a claim be served and filed, within 90 days of accrual, i.e., in the instant case, by August 21, 2006. If a notice of intention is served, the claim must then be served and filed within two years of accrual, i.e. here, by May 23, 2008. There is no dispute that these deadlines were met since, as set forth above, a notice of intention was served on August 17, 2006 and the claim was then served and filed prior to May 23, 2008. However, the State argues that the court lacks jurisdiction over the pain and suffering cause of action because it is “ambiguous” as to whether the notice of intention was properly served as it “appears to have been sent Priority Mail.” Having reviewed the submissions, I find that claimants have adequately demonstrated that the notice of intention was sent simultaneously as certified mail return receipt requested and Priority Mail. See ¶¶6 through 13 of the November 17, 2008 affirmation of John C. Naccarato and exhibits A through E thereto.

Defendant also argues that the claim should be dismissed in its entirety because it fails to name Cathie Faulkner and Faye Marlo as co-administrators of the estate of Deshawn Marlo. Such argument is unavailing as it has been held that “[w]here an entity has been properly served with a pleading such that although omitted from its caption, the recipient reasonably should have been put on notice that it was a target of the lawsuit, jurisdiction is acquired and the error of the caption may be treated as a mere irregularity.” Ibekweh v State of New York, 157 Misc 2d 710, 711, 598 NYS2d 664 (Ct Cl 1993)
Finally, it should be noted that claimants seek to have the caption amended to name Faulkner and Marlo not only as co-administrators, but also as having individual claims, i.e., derivative claims based on loss of consortium. Nowhere in the notice of intention or claim is there any assertion of individual causes of action on behalf of Faulkner and Marlo. Moreover, a loss of consortium cause of action does not exist with respect to a wrongful death cause of action. See, e.g., Davis v State of New York, Ct Cl, September 26, 2007 (unreported, claim no. 111687, motion no. M-73341, cross-motion no. CM-73364, UID #2007-044-568[3], Schaewe, J.).[4]

Accordingly, having reviewed the submissions[5], IT IS ORDERED that motion no. M-75526 be granted to the extent that defendant’s fifth and seventh affirmative defenses shall be deemed stricken and the caption shall be amended to name as claimants “Cathie Faulkner and Faye Marlo as Co-Administrators of the Estate of Deshawn Marlo.” IT IS FURTHER ORDERED that cross-motion no. CM-75822 be denied.

February 11, 2009
New York, New York

Judge of the Court of Claims

  1. [1]Such was entitled “Notice of Claim.”
  2. [2]When an administrator of an estate is awaiting appointment, he or she may serve a notice of intention to file a wrongful death claim as a proposed administrator. Matter of Johnson v State of New York, 49 AD2d 136, 373 NYS2d 671 (3d Dept 1975).
  1. [3]This and other decisions of the Court of Claims may be found on the Court’s website:
  2. [4]There may be a viable cause of action for loss of consortium if the decedent survived for some period of time following the alleged negligence. See, e.g., Anwar v State of New York, Ct Cl, September 18, 2008 (unreported, claim no. 114357, motion no. M-74371, cross-motion no. CM-74545, UID #2008-016-050, Marin, J.) where it was alleged that the decedent lived for more than one and a half years following the alleged malpractice. There is no such allegation in the instant case.
  3. [5]The following were reviewed: claimants’ notice of motion with affirmation in support and exhibits A through F; defendant’s notice of cross-motion with annexed affirmation and exhibits A through E; and claimant’s affirmation in opposition to cross-motion with exhibits A through G.