New York State Court of Claims

New York State Court of Claims

RICHER v. STATE OF NEW YORK, #2009-018-044, Claim No. NONE, Motion No. M-76969


Synopsis


Pursuant to Court of Claims Act § 10(5), since the injuries alleged were sustained by an infant, who is now 7½ years old, this motion is unnecessary and is denied as moot.

Case Information

UID:
2009-018-044
Claimant(s):
HEATHER L. RICHER as Parent and Natural Guardian of KIARA E. RICHER, an infant
Claimant short name:
RICHER
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-76969
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
SUGARMAN LAW FIRM, LLPBy: Rebecca A. Crance, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Christopher Wiles, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 29, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant has brought a motion for permission to file a late claim. Defendant submits no


opposition to the motion.

Court of Claims Act § 10(6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act § 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10[6]).

Here, however, the proposed claim seeks damages for injuries to an infant who was hurt when she fell off a swing set at Selkirk Shores State Park. The accident happened on September 13, 2008, when the infant born on December 12, 2001, was only 6½ years old. The infant is only a year older now and as a result, leave to file a late claim is unnecessary. Court of Claims Act

§ 10(5) provides: “ [i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.” Infancy is a legal disability (see Henry v City of New York, 94 NY2d 275, 279-280; City of New York v Stringfellow’s of New York, Ltd., 253 AD2d 110, 120). Since Kiara Richer is only 7½ years old, her time to serve and file a claim has not yet expired. As a result this motion is unnecessary and is denied as moot.


September 29, 2009
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

1. Notice of Motion.

2. Affirmation of Rebecca A. Crance, Esquire, in support, with exhibit attached thereto.

3. Letter from Assistant Attorney General Christopher Wiles, dated July 31, 2009.