IN RE: Hyacinth GORDON (2024)

Order, Court of Claims of the State of New York (Linda K. Mejias–Glover, J.), entered April 4, 2023, which, to the extent appealed from as limited by the briefs, granted defendant's motion to dismiss claimant's claim, unanimously affirmed, without costs.

Claimant did not properly commence the claim because she did not satisfy the requirements of Court of Claims Act § 10(2) in that she admittedly was not appointed administrator of decedent's estate at the time she filed the intention to file a claim and when she filed the claim (see Dreger v. New York State Thruway Auth., 81 N.Y.2d 721, 724, 593 N.Y.S.2d 758, 609 N.E.2d 111 [1992]).  The lack of legal capacity defense was not waived by defendant because the statutory requirement of a duly appointed administrator is a condition precedent and an essential element of the claim (see Carrick v. Central Gen. Hosp., 51 N.Y.2d 242, 249 n. 2, 250, 434 N.Y.S.2d 130, 414 N.E.2d 632 [1980]), and it cannot be waived (see Lepkowski v. State of New York, 1 N.Y.3d 201, 209, 770 N.Y.S.2d 696, 802 N.E.2d 1094 [2003]).  Moreover, defendant's answer did not admit the allegation that claimant was a duly authorized administrator of decedent's estate.

“Because the claimant had no authority to file the claim against the State before she was appointed decedent's administrator, the Court of Claims properly denied her requested relief under CPLR 205(a)” (Francis v. State of New York, 218 A.D.3d 657, 658, 192 N.Y.S.3d 628 [2d Dept. 2023]).  In the Court of Claims, a claim filed before the claimant was appointed administrator of the estate is not “timely commenced” (CPLR 205[a]), and therefore cannot be used to invoke CPLR 205(a) (see Francis, 218 A.D.3d at 658, 192 N.Y.S.3d 628;  Lichtenstein v. State of New York, 252 A.D.2d 921, 922–923, 676 N.Y.S.2d 345 [3d Dept. 1998], affd 93 N.Y.2d 911, 690 N.Y.S.2d 851, 712 N.E.2d 1218 [1999];  Liddell v. State of New York, 182 Misc.2d 133, 137–38, 697 N.Y.S.2d 237 [Ct. Cl. 1999], affd for reasons stated below 278 A.D.2d 928, 718 N.Y.S.2d 923 [4th Dept. 2000];  see also Dreger, 81 N.Y.2d at 724, 593 N.Y.S.2d 758, 609 N.E.2d 111 [“where, as here, claimants have not met the literal requirements of Court of Claims Act § 11, their actions are not timely commenced, and relief under CPLR 205(a) is not available”]).