New York State Court of Claims

New York State Court of Claims
VIDAL v. THE STATE OF NEW YORK, # 2010-015-188, Claim No. 118504, Motion No. M-78501

Synopsis

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.

Case information

UID: 2010-015-188
Claimant(s): JOSEPH VIDAL
Claimant short name: VIDAL
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 118504
Motion number(s): M-78501
Cross-motion number(s):
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
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

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 [2010]; Siegel v Wank, 183 AD2d 158 [1992]). 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. Notice of motion dated June 29, 2010;
  2. Affidavit of Joan Matalavage sworn to June 29, 2010;
  3. Affidavit of Joseph Vidal sworn to July 22, 2010 with exhibits.

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 [6]; CPLR 214-a).