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.