Pehel v. State, No. 32098

CourtNew York Court of Claims
Writing for the CourtSYLVESTER
Citation208 Misc. 742,145 N.Y.S.2d 24
Docket NumberNo. 32098
Decision Date18 October 1955
PartiesZygmunt PEHEL, also known as Sygmund Pehel, also known as Sigmund Pehel, Claimant, v. The STATE of New York. (Claim) Court of Claims of New York

Page 24

145 N.Y.S.2d 24
208 Misc. 742
Zygmunt PEHEL, also known as Sygmund Pehel, also known as
Sigmund Pehel, Claimant,
v.
The STATE of New York.
(Claim No. 32098.)
Court of Claims of New York.
Oct. 18, 1955.

Page 25

Kreindler & Kreindler, New York City, for claimant, by [208 Misc. 743] Martin Tucker, New York City, of counsel.

Jacob K. Javits, Atty. Gen., by Matthew A. Campbell, Asst. Atty. Gen., of counsel, for the State.

SYLVESTER, Judge.

The action was brought by Zygmunt Pehel, otherwise known as Zygmund Pehel and Sigmund Pehel, who has since died. By this motion, which was originally brought on approximately eight months after the appointment of the administrator, and which had been resubmitted by permission of the Court, it is sought to substitute the administrator as claimant herein. The Attorney General opposes the motion maintaining that the Court of Claims Act, § 15, provides that in such a case

'it shall be the duty of the personal representative of [the] claimant * * * within six months after he becomes invested with the title to said claim or any interest therein, to secure from the court of claims and serve upon the attorney-general an order substituting him as party to said him instead of the party named in said claim, to whose right, title and interest he has succeeded, and in the event that he fails so to do, the court of claims on motion of the attorney-general, on such notice as the court may require, * * * may dismiss [the] claim.'

Here, though the Attorney General had not moved to dismiss the claim in accordance with the prescribed procedure, he, nevertheless, takes the position that the motion to amend must be denied because of the failure on claimant's part to move for the required relief within the stipulated six months and, insists further, that the claim would be vulnerable to a motion to dismiss. It is true that the statute, Section 15, supra, clearly states it to be the duty of the personal representative to secure the order [208 Misc. 744] of substitution within six months after he becomes invested with title to the claim. It does not, however, prescribe the absolute penalty of dismissal for failure so to do. What it lays down is a procedure which, incidentally, was not here availed of by the Attorney General, by which, in an appropriate situation, the Court in its discretion, may dismiss the claim. A dismissal, however, is not mandatory on the Court, as the Attorney General would have it. The language of...

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1 practice notes
  • Frazier-Mott v. State, # 2012-009-023
    • United States
    • New York Court of Claims
    • December 10, 2012
    ...Section 15, in providing the Court with the authority to dismiss a claim, is clearly discretionary in nature (Pehel v State of New York, 208 Misc 742). In this particular matter, claimant's motion for the order of substitution was filed on September 10, 2012, approximately eight months afte......
1 cases
  • Frazier-Mott v. State, # 2012-009-023
    • United States
    • New York Court of Claims
    • December 10, 2012
    ...Section 15, in providing the Court with the authority to dismiss a claim, is clearly discretionary in nature (Pehel v State of New York, 208 Misc 742). In this particular matter, claimant's motion for the order of substitution was filed on September 10, 2012, approximately eight months afte......

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