New York State Court of Claims

New York State Court of Claims

COTTO v. THE STATE OF NEW YORK, #2009-038-555, Claim No. 116586, Motion No. M-76609


Defendant's motion to dismiss claim granted for lack of jurisdiction (Court of Claims Act section 10[2]). Claimant filed wrongful death claim prior to being appointed administrator of the decedent's estate.

Case Information

KRISTINA COTTO, Individually, and as Proposed Administratrix of the Estate of ISOL COTTO
1 1.The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
MAINETTI, MAINETTI & O’CONNORBy: Alfred B. Mainetti, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michele M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 14, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The instant claim was filed and served by claimant, Kristina Cotto, individually and as the proposed adminstratrix of the estate of her late mother, Isol Cotto, whose death was allegedly caused by the negligence of the State. Defendant’s motion in lieu of answer seeks dismissal of the claim on the ground that Kristina Cotto lacks standing to bring this claim as she has not been appointed administratrix of the estate of Isol Cotto. In opposition to the motion, claimant implicitly concedes the prematurity of the filing and service of the claim, and requests that the motion be adjourned to allow claimant to be appointed as administratrix, after which she will amend the claim to properly state her authority.

As pertinent here, Court of Claims Act § 10 (2) provides that a claim for damages brought against the State by an administrator of an estate shall be filed and served upon the Attorney General within ninety days after the appointment of the administrator. It is a jurisdictional requirement that the claim be filed after, not before, the appointment of the administrator of the estate (see Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Liddell v State of New York, 182 Misc 2d 133, 137 [Ct Cl 1999], affd 278 AD2d 928 [4th Dept 2000]), and thus, this Court lacks jurisdiction over a claim filed by a “proposed” administrator (see Powell v State of New York, UID # 2000-004-510, Claim No. 97315, Motion No. M-61159, Hanifin, J. [May 19, 2000]).

Further, claimant’s request for adjournment of the motion cannot be granted, because the claim cannot be amended to cure a jurisdictional defect (see Manshul Construction Corp. v State Insurance Fund, 118 AD2d 983, 985 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383, 386 [Ct Cl 1994]; see also Thomas v State of New York, 57 AD3d 969, 970 [2d Dept 2008] [“(h)olding the claim in abeyance until the claimant obtains such an [administrator’s] appointment . . . is contrary to the strict construction and application given the Court of Claims Act”]). As claimant acknowledges, she may timely file a new claim after receiving her appointment as administratrix. Accordingly, it is

ORDERED, that Motion No. M-76609 is GRANTED, and Claim No. 116586 is DISMISSED.

July 14, 2009
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Claim No. 116586, filed March 23, 2009;

(2) Notice of Motion, dated April 29, 2009;

(3) Affirmation of Michele M. Walls, dated April 29, 2009, with Exhibit A;

(4) Affirmation in Opposition of Alfred B. Mainetti, Esq., dated May 27, 2009.