Opinion
07-27-1950
Max J. Lewandowski, Jr., Claimant, v. State of New York, Defendant. (Claim No. 30187.) Max J. Lewandowski, Sr., Claimant, v. State of New York, Defendant. (Claim No. 30188.)
Nathaniel L. Goldstein, Attorney-General (Lawrence H. Wagner of counsel), for defendant.
Nathan Rovner and Alfred L. Hetzelt for claimants. Nathaniel L. Goldstein, Attorney-General (Lawrence H. Wagner of counsel), for defendant. LAMBIASE, J. Claimants, Max J. Lewandowski, Jr., and Max J. Lewandowski, Sr., have filed the above-mentioned claims, the first named for personal injuries and the latter for property damage allegedly sustained by them when an automobile operated by the claimant, Max J. Lewandowski, Jr., and owned by the claimant, Max J. Lewandowski, Sr., was in collision on November 23, 1948, on Genesee Street, at the intersection of Ransom Road, in the town of Lancaster, New York, with a truck bearing registration U.S.A. 4691369S "operated by a member of and in the course of the business of the New York State National Guard", said truck and its operator having been "assigned to the New York State National Guard and were performing official duties for the New York State National Guard." (Claims, pars. 6 and 7 in part.) The claims allege negligence of the State of New York and of its agents, servants, and employees. The State of New York has moved in each of the above-entitled claims for an order dismissing each of them on the grounds that the court has not jurisdiction of the subject of the action, and that the claims do not state facts sufficient to constitute a cause of action. The motion in each of the above-entitled claims is granted, and each of the above-entitled claims must be and hereby is dismissed upon the authority of Goldstein v. State of New York (281 N.Y. 396); Newiadony v. State of New York (Claim No. 28318; 276 App. Div. 59), and Tamborino v. State of New York (Claim No. 28319; 276 App. Div. 59). Submit order accordingly in each of the above claims.