|Claimant short name:||WALTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||No Appearance|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||October 6, 2021|
|See also (multicaptioned case)|
This claim was filed on March 25, 2013 and issue was joined on or about May 7, 2013. In October, 2013 counsel reported to the Court that their client the Claimant, Mr. Walton, passed away on September 1, 2013. The Court's files indicate that counsel who had been representing Mr. Walton sent several letters to his only known heir, a daughter, Giselle Villanueva, noting that their representation terminated upon Mr. Walton's death and that if she wished to proceed substitute counsel would need to be retained. The record reflects that no response was received.
This matter was transferred to this Court by order of Acting Presiding Judge Sise dated January 24, 2020. An order dated August 5, 2021 requiring Ms. Villanueva to appear in this Court on October 6, 2021 to show cause why this claim should not be dismissed in accordance with CPLR 1021 and Court of Claims Act § 15 was served upon her by certified mail, return receipt requested and regular mail and by regular mail upon the Attorney General by the Clerk of the Court on August 9, 2021. Both copies of the order sent to Ms. Villanueva were returned as undeliverable and "unable to forward" on August 19, 2021. No one appeared on the return date of the order to show cause.
CPLR 1015 states that if a party to an action dies, and the claim is not extinguished by such death, "the court shall order substitution of the proper parties." Under CPLR 1021, a motion for substitution "may be made by the successors or representatives of a party or by any party," but if a final judgment has not yet been issued, and "substitution is not made within a reasonable time, the action may be dismissed as to the party for whom substitution should have been made." Moreover, in the event there has been no such timely substitution, the Court shall "on such notice as it may in its discretion direct, order the persons interested in the decedent's estate to show cause why the action...should not be dismissed."
Further, Court of Claims Act § 15 provides:
[i]n the event of the death of the claimant or of one of the claimants named in a claim . . . filed in the court of claims, and also in the event that by assignment or by operation of law, some person other than the claimant named in the claim has succeeded to the interest of one of the claimants named in such a claim, it shall be the duty of the personal representative of said claimant or of the person who succeeded claimant in interest to said claim or any interest therein within six months after he becomes invested with the title to said claim or any interest therein, to secure from the court of claims and serve upon the attorney-general an order substituting him as party to said claim instead of the party named in said claim, to whose right, title and interest he has succeeded, and in the event that he fails so to do, the court of claims on motion of the attorney-general, on such notice as the court may require, to all parties who have appeared in said action or proceeding or to the assignee or successor of the claimant may dismiss said claim.
Accordingly, in instances where a claimant passes away and timely substitution of the estate or administrator has not been made the Court, upon notice, may dismiss the claim. Under the CPLR dismissal may take place after a "reasonable time," while the Court of Claims Act sets a time period of six month from appointment of an administrator (see Naval v Lehman College, UID No. 2014-049-026 [Ct Cl, Weinstein, J., May 13, 2014]).
Here, it has been eight years since Mr. Walton's passing and there has been no substitution. Accordingly, it is
ORDERED that claim no. 122548 is dismissed.
October 6, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims