New York State Court of Claims

New York State Court of Claims
OGLESBY v. THE STATE OF NEW YORK, # 2018-041-083, Claim No. 130896, Motion No. M-92937

Synopsis

Claim is dismissed pursuant to Court of Claims Act 15 and CPLR 1021 for failure to make timely substitution upon claimant's death.

Case information

UID: 2018-041-083
Claimant(s): FRANK OGLESBY
Claimant short name: OGLESBY
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130896
Motion number(s): M-92937
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: NONE
Defendant's attorney: HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Elizabeth A. Gavin, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 6, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Defendant moves to dismiss the claim pursuant to Court of Claims Act 15 for failure to make timely substitution upon claimant's death. This wrongful confinement claim was filed on January 24, 2018 and served on the Attorney General on January 26, 2018.

The defendant has provided proof that claimant died on March 25, 2018. The Court notes that it was advised of claimant's death by claimant's son via telephone call on May 23, 2018.

Court of Claims Act 15 provides, at relevant part as follows:

"In the event of the death of the claimant . . . it shall be the duty of the personal representative of said claimant . . . within six months . . . 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 . . . 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 . . . may dismiss said claim."

CPLR 1021 provides for similar requirements upon the death of a party.

Defendant's motion to dismiss the claim was served upon claimant's son.

The claim is dismissed pursuant to Court of Claims Act 15 and CPLR 1021 based upon the failure of the successors/representatives of the deceased claimant to substitute, as claimant, the estate/administrator of claimant's estate.

December 6, 2018

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Defendant's Notice of Motion, filed September 28, 2018;

2. Affirmation of Elizabeth A. Gavin, dated September 25, 2018, and attached exhibits.