Opinion
# 2015-018-637 Claim No. 124040 Motion No. M-86952
08-25-2015
ESTATE of KYLE SHORE by his Mother and Proposed Administrator DOLORES SHORE and DOLORES SHORE v. STATE OF NEW YORK
THE LAW OFFICE OF RENÉ MYATT By: René Myatt, Esquire NO APPEARANCE
Synopsis
The Court is presented with evidence that Claimant lacks the proper authority to commence this action; this Court lacks jurisdiction and the authority to grant the motion, the claim must be dismissed.
Case information
| UID: | 2015-018-637 |
| Claimant(s): | ESTATE of KYLE SHORE by his Mother and Proposed Administrator DOLORES SHORE and DOLORES SHORE |
| Claimant short name: | SHORE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124040 |
| Motion number(s): | M-86952 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | THE LAW OFFICE OF RENÉ MYATT By: René Myatt, Esquire |
| Defendant's attorney: | NO APPEARANCE |
| Third-party defendant's attorney: | |
| Signature date: | August 25, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion seeking an Order directing the New York City Department of Education to provide the complete and certified academic transcripts for Kyle Shore from John Adams High School with his social security number. Defendant has failed to respond to the motion.
On March 13, 2014, Claimant, the mother of Kyle Shore, an inmate who died while in the custody of the State at Auburn Correctional Facility, filed a claim seeking damages for Kyle Shore's personal injuries and wrongful death. Claimant alleges that the State failed to provide adequate supervision to Mr. Shore resulting in injuries and ultimately his death. Defendant interposed a verified answer.
By this motion, Claimant and her attorney indicate that prior to bringing this claim, Claimant filed a petition for letters of administration with the King's County Surrogate Court. After filing the petition, she was notified that there was a discrepancy in the paperwork as to the correct social security number for Kyle Shore. The Surrogate advised that the proper social security number was necessary, and if it was incorrect on the death certificate that a corrected death certificate would need to be provided. Claimant made some efforts to obtain Kyle Shore's social security number from various entities without success. By this motion, Claimant now seeks a Court ordered subpoena duces tecum for the New York City Department of Education to release the complete and certified academic school records/transcripts from John Adams High School for Kyle Shore.
A wrongful death action may only be brought by a proper representative of the decedent, as it is an action for the benefit of decedent's heirs (Court of Claims Act § 10 [2]; and Estates, Powers and Trust Law [EPTL] § 5-4.1; Smith v State of New York, 41 NY2d 1063 [1977]). An action for personal injuries suffered by the deceased prior to his death also requires a properly appointed representative to commence an action (EPTL § 11-3.2; Shelley v South Shore Healthcare, 123 AD3d 797, 797 [2d Dept 2014]; Mingone v State of New York, 100 AD2d 897 [2d Dept 1984]). Since the Court has been presented with evidence that Claimant lacked the proper authority to commence this action, and without commencement in accordance with the Court of Claims Act by the proper representative, this Court lacks jurisdiction and the authority to grant the motion, the claim must be dismissed (see Lichtenstein v State of New York, 93 NY2d 911 [1999]; Thomas v State of New York, 57 AD3d 969, 970 [2d Dept 2008]; Johnson v State of New York, UID No. 2012-010-017 [Ct Cl, Ruderman, J., June 26, 2012]).
Nonetheless, Claimant still has time to obtain letters of appointment and commence a timely action, within two years of the date of decedent's death (Court of Claims Act § 10[2]; EPTL § 5-4.1). Claimant may pursue her efforts to obtain proper documentation to obtain her letters of appointment in Surrogate's Court.
Accordingly, Claimant's motion is DENIED and the Court directs that the claim be DISMISSED.
August 25, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of René Myatt, Esquire, in support with attachments thereto.