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.