Opinion
# 2017-045-041 Claim No. 129577 Motion No. M-90453
09-29-2017
CONNIE BENFANTE as Proposed Administratrix of the Estate of PAUL BENFANTE, deceased and CONNIE BENFANTE, individually v. THE STATE OF NEW YORK
Parker Waichman LLP By: Denny Tang, Esq. Hon. Eric T. Schneiderman, Attorney General By: Robert E. Morelli, Assistant Attorney General
Synopsis
Defendant's motion to dismiss claim due to claimant's lack of standing as she was not appointed administratrix prior to filing the claim. Additionally, late claim request was denied since derivative claim for loss of consortium cannot stand without a valid main cause of action.
Case information
| UID: | 2017-045-041 |
| Claimant(s): | CONNIE BENFANTE as Proposed Administratrix of the Estate of PAUL BENFANTE, deceased and CONNIE BENFANTE, individually |
| Claimant short name: | BENFANTE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129577 |
| Motion number(s): | M-90453 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Parker Waichman LLP By: Denny Tang, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Robert E. Morelli, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 29, 2017 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits A-E; Claimants' Affirmation in Opposition with annexed Exhibits A-B; and Defendant's Reply with annexed Exhibits A.
Defendant, the State of New York, has brought this motion pursuant to Civil Practice Law and Rules (CPLR) 3211 (a) (1), (2), (3), (7) and (8) as well as Court of Claims Act §§ 10 and 11 seeking an order dismissing the claim. Claimants, Connie Benfante as Proposed Administratrix of the Estate of Paul Benfante, deceased and Connie Benfante, individually, have opposed this motion and requested late claim relief.
Defendant seeks dismissal of the claim for a variety of reasons. Initially, defendant argues that the claim should be dismissed due to claimants lack of capacity to sue. The underlying claim in this matter states that on April 21, 2015 at approximately 3:30 p.m. decedent, Paul Benfante, was injured due to a defective sidewalk in front of 2 Marshmallow Drive. More specifically the accident took place approximately 15-20 feet from the northeast corner of the intersection of Marshmallow Drive and Town Line Road.
A notice of intention to file claim was served upon defendant on July 13, 2015. A second notice of intention was served only on the New York State Office of Mental Health on July 16, 2015. Decedent subsequently passed away on March 19, 2017. Thereafter, a claim was filed in this matter on April 14, 2017 and served upon defendant on April 17, 2017. The claim was filed by Connie Benfante as Proposed Administratrix of the Estate of Paul Benfante, deceased and Connie Benfante, individually.
Defendant asserts that the claim was filed and served prior to Connie Benfante obtaining letters of administration appointing her administratrix of decedent's estate. Claimants concede this point in their opposition papers.
The Court of Appeals has long held that "[b]ecause suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed" (Lichtenstein v State of New York, 93 NY2d 911 [1999]; Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). In the Court of Claims wrongful death actions are governed by Court of Claims Act § 10 (2) while personal injury claims fall under Court of Claims Act § 10 (3). Both sections contemplate that an executor or administrator be formally appointed before commencing an action against the State (Lichtenstein v State of New York, 93 NY2d 911 [1999]). In the present matter, it is undisputed that the claim was commenced by claimants prior to such an appointment. As a result the claim must be dismissed (id.; Thomas v State of New York, 57 AD3d 969 [2d Dept 2008]).
This is in contrast to service of a notice of intention to file a claim which merely provides notice, does not commence an action, is not filed with the Court and may be given by any interested person (see Dolce v State of New York, 152 AD3d 515 [2d Dept 2017]). --------
To the extent claimants are seeking late claim relief in regard to the derivative claim of Connie Benfante it must be denied. A spouse's cause of action to recover for loss of services or consortium does not exist independently from the injured spouse's cause of action (Doria v Benisch, 130 AD3d 777 [2d Dept 2015]; Klein v Metropolitan Child Servs., Inc., 100 AD3d 708 [2d Dept 2012]). Consequently, the derivative cause of action cannot survive the dismissal of the main claims for damages (id.).
Therefore, for the foregoing reasons, defendant's motion is granted.
September 29, 2017
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims