N.Y. State Office of Victim Servs. ex rel. Arnold v. Burley

Full title: In the Matter of NEW YORK STATE OFFICE OF VICTIM SERVICES, on Behalf of…

Court: Supreme Court, Appellate Division, Third Department, New York.

Date published: Jan 30, 2014

113 A.D.3d 1012 (N.Y. App. Div. 2014)

113 A.D.3d 1012

2014 N.Y. Slip Op. 555

Opinion

2014-01-30

In the Matter of NEW YORK STATE OFFICE OF VICTIM SERVICES, on Behalf of Ruby ARNOLD, Respondent, v. Freeman BURLEY, Appellant.

Freeman Burley, Auburn, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.

Rose

Freeman Burley, Auburn, appellant pro se. Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for respondent.
, J.

Appeal from an order of the Supreme Court (McNamara, J.), entered November 7, 2012 in Albany County, which, in a proceeding pursuant to Executive Law § 632–a, denied respondent's motion to dismiss the petition.

Respondent was convicted of murder in the second degree and criminal possession of a weapon in the fourth degree and is currently serving a prison sentence of 25 years to life. In 2011, petitioner advised the executor of the victim's estate that respondent's inmate account exceeded $10,000. The executor then gave notice that she intended to commence an action for money damages against respondent ( seeExecutive Law §§ 621[6]; 632–a [2][c]; [3] ) and petitioner accordingly commenced this special proceeding seeking a preliminary injunction to preserve those funds ( seeExecutive Law § 632–a [4]-[6] ). Supreme Court granted the injunction.

The executor had not commenced an action for money damages as of July 2012, prompting respondent to serve petitioner with a demand for a complaint within the context of this proceeding.

¹ No complaint was forthcoming, and respondent moved to dismiss this proceeding pursuant to CPLR 3012(b). Supreme Court denied the motion, and respondent now appeals.

1 The executor has until 2014 to commence the action ( seeExecutive Law § 632–a [3] ).

We affirm. The petition in this special proceeding “compl[ied] with the requirements for a complaint in an action,” and has already been served upon respondent (CPLR 402; seeCPLR 304[a] ). Respondent admits that he is actually seeking a complaint in the action for money damages contemplated by the executor of the victim's estate, which he has no right to demand prior to the commencement of that action ( see Micro–Spy Inc. v. Small, 9 A.D.3d 122, 126, 778 N.Y.S.2d 86 [2004] ). Accordingly, the motion to dismiss was properly denied.

ORDERED that the order is affirmed, without costs.

PETERS, P.J., LAHTINEN and GARRY, JJ., concur., concur.