Bailey v. State

¶1Appeal from an order of the Court of Claims, entered December 19, 1978, which granted a motion to dismiss the claim. The decedent was accidently shot and killed in the performance of his duties with the New York State National Guard. Claimant, his surviving spouse, commenced this action in a representative capacity. The Court of Claims properly dismissed the claim and we must affirm. Section 8-a of the Court of Claims Act provides that no action lies against the State for a claim arising out of a person’s military service on behalf of the State. Moreover, claimant, here suing in a representative capacity, is under the same infirmity as the decedent had he lived (EPTL 5-4.1). There is no merit to claimant’s assertion the Military Law and section 8-a of the Court of Claims permit an action against the State where gross negligence is involved. Order affirmed, without costs. Mahoney, P. J., Greenblott, Main, Mikoll and Herlihy, JJ., concur.