Opinion
# 2015-049-020 Claim No. 125100 Motion No. M-85913
03-16-2015
In the Matter of the Claim of KARLA FRANCO, Proposed Administratrix of the Estate of MIRANDA KRISTINE BISONO FRANCO v. THE STATE OF NEW YORK
Weiss & Rosenbloom, P.C. No appearance Eric T. Schneiderman, New York State Attorney General By: Joseph L. Paterno, Assistant Attorney General
Synopsis
Claim dismissed as the proposed administratix lacked legal standing to bring the claim.
Case information
UID: | 2015-049-020 |
Claimant(s): | In the Matter of the Claim of KARLA FRANCO, Proposed Administratrix of the Estate of MIRANDA KRISTINE BISONO FRANCO |
Claimant short name: | FRANCO |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 125100 |
Motion number(s): | M-85913 |
Cross-motion number(s): | |
Judge: | DAVID A. WEINSTEIN |
Claimant's attorney: | Weiss & Rosenbloom, P.C. No appearance |
Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Joseph L. Paterno, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 16, 2015 |
City: | Albany |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
This claim was filed on October 9, 2014, seeking damages for the alleged wrongful death of infant decedent Miranda Kristine Bisono Franco at a daycare center under State licensure. The action is brought by "Karla Franco, Proposed Administratrix" of the infant's estate.
Defendant State of New York now brings a pre-answer motion to dismiss on the ground that Karla Franco lacks legal standing to bring this claim since it was initiated prior to her appointment as administratrix. Claimant has not submitted a response.
Under Court of Claims Act § 10(2), a claim by an executor or administrator of a decedent "shall be filed and served upon the attorney general within ninety days after the appointment of such executor or administrator." Therefore, an action commenced prior to "the formal appointment of an executor or administrator . . . must be dismissed" (Thomas v State of New York, 57 AD3d 969, 970 [2d Dept 2008]; see also Lichtenstein v State of New York, 93 NY2d 911, 913 [1999] ["When . . . the claim is a 'survival' action on behalf of an intestate decedent, the proper claimant can be only a duly appointed personal representative in receipt of letters of administration"]). A "proposed" administrator lacks the capacity to sue in this Court (see Cotto v State of New York, UID No. 2009-038-555 [Ct Cl, DeBow, J., July 14, 2009] ["this Court lacks jurisdiction over a claim filed by a 'proposed' administrator"]; Powell v State of New York, UID No. 2000-004-510 [Ct Cl, Hanifin, J., May 19, 2000] ["A 'proposed' estate representative is not authorized to file a claim in this Court"]).
In light of the foregoing, defendant's motion no. M-85913 is hereby granted, and the claim is dismissed.
March 16, 2015
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion, Affirmation in Support, and annexed exhibit.