In re Porter

206 Misc. 524 | N.Y. Sup. Ct. | 1954

Blauvelt, J.

This motion was brought on by notice of motion in an action entitled “ Winifred B. Porter and Harry 0. Porter, County of Monroe, State of New York, Plaintiffs, vs. The State of New York, Defendant.”, purporting to be pending in Supreme Court in Monroe County. There is no action thus entitled pending in Supreme Court. The State of New York, which is opposing the granting of the relief desired, raises no question concerning this technicality and this court is therefore willing to dispose of the matter on its merits, rather than to dismiss the motion without prejudice to a renewal thereof on papers properly entitled. To insure proper filing in the office of the Clerk of Monroe County, the court on its own motion directs that the papers presented on this motion be amended so as to correct the title of the proceeding to conform to the title as it appears at the heading of this decision, and further directs that the order to be presented and entered hereon shall likewise be so entitled. Winifred B. Porter and Harry 0. Porter are hereinafter referred to as the petitioners.

Petitioners have claims pending against the State of New York in the Court of Claims growing out of an alleged assault on January 20,1952, upon Winifred B. Porter by one Raymond Rooney, a ward who on that day escaped or ran away from the custody of the Superintendent of the State Agricultural and Industrial School at Industry, to which institution said Rooney had been committed and wherein he was confined.

In order to properly prepare their claims for prosecution before the Court of Claims, petitioners seek an examination before trial of officials of the institution and authorization to inspect and examine the records of the institution and the State Department of Social Welfare relating to Raymond Rooney, the alleged assailant. Such authorization can be given only by the State Commissioner of Social Welfare or by a Justice of the Supreme Court. (Social Welfare Law, § 372, subd.'4.)

The State of New York appears specially in opposition to the motion, claiming that the Supreme Court lacks jurisdiction of the subject matter of this application. The special appearance is disallowed and motion of the State of New York to dismiss the application is denied.

In the opinion of this court, the facts as alleged by petitioners justify the granting of an order authorizing petitioners to inspect and examine the records of the said institution and the department relating to Raymond Rooney, to such an extent and subject to such limitations as may be imposed by the Court of Claims. Inasmuch as the claims of petitioners are being litigated in the Court of Claims, it would seem that orderly procedure would now require an application to that tribunal for an examination before trial, in accordance with the practice provisions of the Court of Claims Act, the Rules of the Court of Claims and the provisions of the Civil Practice Act, the Supreme Court now having granted the authorization contemplated by subdivision 4 of section 372 of the Social Welfare Law.

Submit order.