Brown v. State

Full title: LINDA M. BROWN, AS ADMINISTRATRIX OF THE ESTATE OF WAYNE BROWN, DECEASED…

Court: Appellate Division of the Supreme Court of the State of New York

Date published: Dec 2, 2015

2015 N.Y. Slip Op. 92342 (N.Y. App. Div. 2015)

Opinion

DOCKET NO. CA 15-01912 DOCKET NO. CA 15-01913

12-02-2015

LINDA M. BROWN, AS ADMINISTRATRIX OF THE ESTATE OF WAYNE BROWN, DECEASED, CLAIMANT-RESPONDENT, v. STATE OF NEW YORK, DEFENDANT-APPELLANT. (CLAIM NO. 108961.) LINDA M. BROWN, CLAIMANT-RESPONDENT, v. STATE OF NEW YORK, DEFENDANT-APPELLANT. (CLAIM NO. 110037.) LINDA M. BROWN, AS ADMINISTRATRIX OF THE ESTATE OF WAYNE BROWN, DECEASED, CLAIMANT-RESPONDENT, v. STATE OF NEW YORK, DEFENDANT-APPELLANT. (CLAIM NO. 108961.)

SCUDDER, P.J., SMITH, CENTRA, PERADOTTO, AND CARNI, JJ.

PRESENT:

Respondent having moved, pursuant to Court of Claims Act § 25, to dismiss the appeals taken herein from an order and a judgment of the Court of Claims entered in the Office of the Clerk of said court on July 20, 2015, and August 7, 2015, on the ground that appellant failed to set forth the basis for the appeals on the notice of appeal or, in the alternative, to dismiss the appeals for failure to timely perfect, and appellant having cross-moved for the notice of appeal to be deemed valid pursuant to CPLR 5520 (c), and if necessary, for leave to amend the notice of appeal, or, in the alternative, to vacate this Court's order entered December 30, 2010,

Now, upon reading and filing the affirmations of Norman Andrew Palmiere, Esq., dated November 10, 2015 and November 25, 2015, the affirmation of Jonathan D. Hitsous, Esq., dated November 12, 2015, and the notices of motion and cross motion with proof of service thereof, and due deliberation having been had thereon,

It is hereby ORDERED that respondent's motion is denied insofar as it seeks to dismiss the appeals on the ground that appellant failed to set forth the basis for the appeals on the notice of appeal, and

It is further ORDERED that respondent's motion is granted insofar as it seeks to dismiss the appeals for failure to perfect timely the appeals, and the appeals are dismissed without further order unless the appeals are perfected on or before February 1, 2016, and

It is further ORDERED that appellant's cross motion is granted, and the notice of appeal dated August 31, 2015, is deemed valid (see CPLR 5520 [c]), and

It is further ORDERED that appellant's cross motion is otherwise denied.

Entered: December 2, 2015

Frances E. Cafarell, Clerk