Opinion
# 2016-050-038 Claim No. 127046 Motion No. M-88033 Motion No. M-88034
07-28-2016
EMERALD ELIZABETH STELLA, AN INFANT BY CAROLINE Z. STELLA & JOHN R. STELLA, PARENTS AND NATURAL GUARDIANS AND CAROLINE Z. STELLA & JOHN R. STELLA, INDIVIDUALLY v. THE STATE OF NEW YORK, OFFICE OF CHILDREN AND FAMILY SERVICES & STATE BOARD OF REGENTS,
William K. Polignani, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Susan M. Connolly, Assistant Attorney General
Synopsis
The claim for damages against the State Board of Regents and the Office of Children and Family Services is dismissed.
Case information
| UID: | 2016-050-038 |
| Claimant(s): | EMERALD ELIZABETH STELLA, AN INFANT BY CAROLINE Z. STELLA & JOHN R. STELLA, PARENTS AND NATURAL GUARDIANS AND CAROLINE Z. STELLA & JOHN R. STELLA, INDIVIDUALLY |
| Claimant short name: | STELLA |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK, OFFICE OF CHILDREN AND FAMILY SERVICES & STATE BOARD OF REGENTS, |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127046 |
| Motion number(s): | M-88033, M-88034 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | William K. Polignani, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Susan M. Connolly, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 28, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In an action for damages based upon the alleged mistreatment of a child at a day care facility, the defendants move to dismiss the claim pursuant to CPLR 3211 (a) (7) ("the pleading fails to state a cause of action. . .").
Defendants correctly assert that the claim must be dismissed as against the Office of Children and Family Services (M-88034) and the State Board of Regents (M-88033) because the State of New York is the only proper defendant in the Court of Claims (see Easley v New York State Thru. Auth., 1 NY2d 374 [1956]).
Accordingly, insofar as the motions seek relief of dismissal as against named defendants Office of Children and Family Services and the State Board of Regents, these motions to dismiss are granted.
Henceforth, the name of this action shall appear as "Emerald Elizabeth Stella, an infant by Caroline Z. Stella and John R. Stella, parents and natural guardians & Caroline Z. Stella and John R. Stella, Individually, claimants, against The State of New York, defendant."
In the context of a motion to dismiss pursuant to CPLR 3111 (a) (7), the Court must liberally construe the pleading in the claimant's favor and (as defendant acknowledges herein) accept the facts alleged as true and determine whether the claimant can succeed upon any reasonable view of the facts (see Landon v Kroll Laboratory Specialists, Inc., 22 NY3d 1 [2013]). Applying such standard to the claim herein, that is, accepting (for the purpose only of determining the present motions) the facts as alleged in the subject claim as true and according claimants every possible favorable inference therefrom (see TIAA Global Investments, LLC v One Astoria Square, LLC, 127 AD3d 75 [1st Dept 2015]), the Court finds that the subject claim is sufficient to withstand these preanswer motions for dismissal pursuant to CPLR 3211 (a)(7). Based upon the forgoing, the motions to dismiss insofar as asserted against defendant the State of New York are denied.
July 28, 2016
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the defendants motions to dismiss: 1. Notice of Motion, Affirmation with Exhibit A (M-88033). 2. Memorandum of Law dated February 1, 2016 (M-88033). 3. Affirmation in Opposition with Exhibits 1 through 5 (M-88033). 4. Reply Memorandum of Law in Further Support dated July 1, 2016 (M-88033). 5. Notice of Motion, Affirmation with Exhibit A (M-88034). 6. Memorandum of Law dated February 1, 2016 (M-88034). 7. Affirmation in Opposition with Exhibits 1 through 5 (M-88034). 8. Reply Memorandum of Law dated June 13, 2016 (M-88034).