Opinion
# 2015-050-010 Claim No. 121389 Motion No. M-86189
03-12-2015
DAVID AVILA, AN INFANT UNDER THE AGE OF 14 YEARS, BY HIS PARENT AND NATURAL GUARDIAN, BILLIE BARTOLE, AND BILLIE BARTOLE, INDIVIDUALLY v. THE STATE OF NEW YORK
Joseph T. Mullen, Jr. & Associates By: Paul Biedka, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Robert E. Morelli, Assistant Attorney General
Synopsis
Claimant's motion for discontinuance is granted. Claimant's counsel states that they no longer believe that there is a viable claim against the State of New York. The criteria applicable under § 3217 (b) are satisfied in this instance warranting granting of the instant motion.
Case information
UID: | 2015-050-010 |
Claimant(s): | DAVID AVILA, AN INFANT UNDER THE AGE OF 14 YEARS, BY HIS PARENT AND NATURAL GUARDIAN, BILLIE BARTOLE, AND BILLIE BARTOLE, INDIVIDUALLY |
Claimant short name: | AVILA |
Footnote (claimant name) : | The cause of action on behalf of Billie Bartole, individually, was dismissed by order of the Honorable Richard E. Sise, P.J. filed February 1, 2013. Claimant will be referred to in the singular. |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 121389 |
Motion number(s): | M-86189 |
Cross-motion number(s): | |
Judge: | STEPHEN J. LYNCH |
Claimant's attorney: | Joseph T. Mullen, Jr. & Associates By: Paul Biedka, Esq. |
Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Robert E. Morelli, Assistant Attorney General |
Third-party defendant's attorney: | |
Signature date: | March 12, 2015 |
City: | Hauppauge |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Claimants move for an order pursuant to CPLR 3217 (b) permitting the discontinuance of this action. The defendant has submitted a letter dated January 16, 2015 in which counsel states "[t]he State has no opposition to [c]laimant's motion, and respectfully requests that the Court grant the relief sought in its entirety."
The claim is for damages sustained by an infant in a fall on March 2, 2012. Claimant's counsel observes in his affirmation dated January 12, 2015 in support of the motion that "[w]e no longer believe that there is a viable claim against the State of New York" and that there is also a pending claim in Nassau County Supreme Court based on the same underlying occurrence. The Supreme Court action is being actively pursued by claimant.
It appears that the criteria applicable under § 3217 (b) are satisfied in this instance warranting granting of the instant motion (see generally, Carter v Howland Hook Hous. Co., Inc., 19 AD3d 146 [1st Dept 2005]; American Tr. Ins. Co. v Roberson, 114 AD3d 821 [2d Dept 2014]). Accordingly, the motion is granted and claim 121389 is discontinued.
March 12, 2015
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims
The following papers were read and considered by the Court on the claimant's motion to discontinue this action:
1. Notice of Motion, Affirmation with Exhibits A and B.
2. Letter from defendant's counsel dated January 16, 2015.