Defendant's motion to dismiss dental malpractice claim was denied as it failed to support the motion with a copy of the claim, notice of intention to any other proof.
|Claimant short name:||VIDAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Joseph Vidal, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 1, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of the instant claim pursuant to CPLR 3211 (a) (5). Defense counsel contends that the instant claim for dental malpractice accrued on May 8, 2008, that a notice of intention was "apparently served by certified mail return receipt requested" on June 6, 2008 and that the claim served on June 14, 2010 is time-barred under Court of Claims Act § 10.
"To dismiss a cause of action pursuant to CPLR 3211 (a) (5) . . . a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired" (Tsafatinos v Wilson Elser Moskowitz Edelman & Dicker, LLP, 75 AD3d 546 ; Siegel v Wank, 183 AD2d 158 ). Defendant failed to meet its burden on the instant motion. Defense counsel's failure to support the motion with a copy of the claim, the notice of intention to file a claim and proof as to the date the claim was served requires that the motion be denied(1) .
November 1, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
1. Notably, claimant's request for late claim relief was included only in his affidavit in opposition to the instant motion, which is improper (see CPLR 2215). Court of Claims Act § 10 (6) specifically provides "[t]he application for such permission shall be made upon motion returnable at any regular or special session of the court . . ." Any such motion must be made "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 ; CPLR 214-a).