Lewis v. State

Appeal by the State from a judgment of the Court of Claims in favor of the claimant in the amount of $6,179.82 for wrongful death and conscious pain and suffering. The State contends that the judgment must be reversed and the claim dismissed because the claimant was not appointed as administratrix until some two months after the claim was filed and some five months after the death of the claimant’s deceased. No amended claim was filed and at the trial the State’s motion to dismiss the claim should have been granted. (See Court of Claims Act, § 10, subd. 2.) We agree with the appellant for the reasons set forth in our opinion in Davis v. State of New York (22 A D 2d 733). (Cf. Boffe v. Consolidated Tel. & Elec. Subway Co., 171 App. Div. 392, affd. 226 N. Y. 654.) The authorities cited by the respondent are not controlling. Judgment reversed, on the law and the facts, and claim dismissed, without costs. Gibson, P. J., Reynolds and Staley, Jr., JJ., concur; Taylor, J., not voting.