Opinion
May 11, 1998
Appeal from the Court of Claims (Nadel, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The Court of Claims correctly denied the defendant's cross motion to dismiss the claim for failure to state a cause of action. The court properly rejected the defendant's contention that the personal representative of the now-deceased claimant, absent the live testimony of the latter, will be unable, as a matter of law, to establish the claim by "clear and convincing evidence" (Court of Claims Act § 8-b; Solomon v. State of New York, 146 A.D.2d 439; Dozier v. State of New York, 134 A.D.2d 759).
We note that the order appealed from did not address the issue of whether the original claimant's testimony from a prior criminal trial is admissible in the instant claim pursuant to CPLR 4517, and we do not reach that issue.
Thompson, J.P., Krausman, Goldstein and Luciano, JJ., concur.