New York State Court of Claims

New York State Court of Claims
POCARI v. THE STATE OF NEW YORK , # 2019-059-036, Claim No. 133464, Motion No. M-94706


Case information

UID: 2019-059-036
Claimant(s): In the Matter of the Claim of ELVIRA POCARI, as proposed Administrator of the ESTATE of ALFRED POCARI
Claimant short name: POCARI
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 133464
Motion number(s): M-94706
Cross-motion number(s):
Claimant's attorney: No Appearance
By: Lawrence E. Kozar, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 26, 2019
City: Central Islip
Official citation:
Appellate results:
See also (multicaptioned case)


By claim filed August 9, 2019, the claimant Elvira Pocari ("Claimant") alleges that on July 19, 2019 decedent Alfred Pocari was struck and killed by a motor vehicle as he attempted to cross West End Avenue at 98th Street in New York City, as the result of a negligent driver and faulty signage and traffic signals/controls/devices.

Defendant State of New York ("Defendant") now makes a pre-answer motion to dismiss the claim on the grounds that the site of the subject accident is not under the State's jurisdiction, and that Claimant as "proposed administrator" lacks legal standing to sue. Defendant's application is supported by the affirmation of an assistant attorney general (Kozar Aff.), and the affidavit of Prakash C. Roy ("Roy"), the Regional Claims Engineer for the New York State Department of Transportation ("NYSDOT"), Region 11, which encompasses the confines of New York City (id., Ex. B).

Roy attests that based on his review of the records and documents maintained by NYSDOT, the roadway, sidewalk and/or intersection of West End Avenue and 98th Street in Manhattan, are City streets and fall under the jurisdiction of the City of New York. As a result, the City of New York maintains the subject roadway and its jurisdiction includes street design and installation of control devices, and street markings (id. 4, 5).

The Court of Claims only has jurisdiction over claims against the State of New York and a limited number of other entities specifically enumerated by statute (see Court of Claims Act 9; NY Const, art VI, 9). It does not have jurisdiction to hear claims based on allegations concerning the acts or omissions of the City of New York (see generally Fisher v State of New York, 10 NY2d 60 [1961]; Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977]).

Moreover, pursuant to Court of Claims Act 10 (2), a claim by an executor or administrator of a decedent "shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator." Thus, an action commenced prior to "the formal appointment of an executor or administrator . . . must be dismissed" (Thomas v State of New York, 57 AD3d 969, 970 [2d Dept 2008]; see also Lichtenstein v State of New York, 252 AD2d 921, 922 [1998] ["claimant had no authority to file the verified claim against the State before being appointed decedent's administrator"]). Accordingly, Elvira Pocari as the "proposed administrator" lacks capacity to bring this action.

Claimant submits no opposition to Defendant's motion.

In view of the foregoing, it is hereby

ORDERED that Defendant's motion no. M-94706 is granted and claim no. 133464 is dismissed.

Papers Considered:

1. Defendant's Notice of Motion; Affirmation in Support, and annexed exhibits.

November 26, 2019

Central Islip , New York


Judge of the Court of Claims