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McGevna v. State

New York State Court of Claims
Mar 18, 2015
# 2015-050-013 (N.Y. Ct. Cl. Mar. 18, 2015)

Opinion

# 2015-050-013 Claim No. NONE Motion No. M-86305

03-18-2015

HELENA McGEVNA, AS GUARDIAN OF THE PERSON OF DIANE FIMBEL NIENSTEDT v. THE STATE OF NEW YORK

David Grossman & Associates, PLLC By: David C. Grossman, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Kimberly A. Kinirons, Assistant Attorney General


Synopsis

The circumstance identified by proposed claimant's counsel and not challenged by defendant involves application of CCA 10 (5), which states if the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed. As the date of the incident is September 21, 2014, this motion for late claim relief is unnecessary and is denied on that basis.

Case information


UID:

2015-050-013

Claimant(s):

Claimant short name:

McGEVNA

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

NONE

Motion number(s):

M-86305

Cross-motion number(s):

Judge:

STEPHEN J. LYNCH

Claimant's attorney:

David Grossman & Associates, PLLC By: David C. Grossman, Esq.

Defendant's attorney:

Hon. Eric T. Schneiderman, NYS Attorney General By: Kimberly A. Kinirons, Assistant Attorney General

Third-party defendant's attorney:

Signature date:

March 18, 2015

City:

Hauppauge

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The proposed claimant moves for relief pursuant to Court of Claims Act (CCA) § 10 (6). The defendant, by counsel, responds in a letter dated March 3, 2015, which states, in pertinent part, "the State takes no position on Ms. McGevna's motion. As stated by Ms. McGevna's attorney therein, it appears that Section 10 (5) of the [CCA] applies to this case and late claim relief is not warranted." What defendant's counsel appears to refer to is the statement in the affirmation of proposed claimant's attorney that the instant application is made on behalf of (by the guardian for) Diane Nienstedt who is "a non-verbal 64 year old profoundly retarded and globally disabled non-ambulatory resident" of the Long Island Developmental Disabilities Service Office (see affirmation of David C. Grossman dated February 6, 2015). The circumstance identified by proposed claimant's counsel and not challenged by defendant involves application of CCA § 10 (5), which states "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." As the date of the incident serving as the basis for the proposed claim is September 21, 2014, this motion for late claim relief is unnecessary and is denied on that basis (see McSherry v State of New York, UID No. 2011-045-001 [Ct Cl, Lopez-Summa, J., Jan. 13, 2011]. The movant may proceed with the proposed claim in accordance with governing filing and service requirements of the CCA and the Uniform Rules for the Court of Claims.

March 18, 2015

Hauppauge, New York

STEPHEN J. LYNCH

Judge of the Court of Claims

The following papers were read and considered by the Court on the claimant's motion for late claim relief:

1. Notice of Motion, Affirmation in Support and Proposed Claim.

2. Letter from defendant dated March 3, 2015.


Summaries of

McGevna v. State

New York State Court of Claims
Mar 18, 2015
# 2015-050-013 (N.Y. Ct. Cl. Mar. 18, 2015)
Case details for

McGevna v. State

Case Details

Full title:HELENA McGEVNA, AS GUARDIAN OF THE PERSON OF DIANE FIMBEL NIENSTEDT v. THE…

Court:New York State Court of Claims

Date published: Mar 18, 2015

Citations

# 2015-050-013 (N.Y. Ct. Cl. Mar. 18, 2015)