Opinion
# 2014-039-396 Claim No. 119205 Motion No. M-84097
02-04-2014
JEROME F. WILLETT, Jr., an infant, by his mother and natural guardian ROSE PARKER, and ROSE PARKER, Individually v. STATE OF NEW YORK
Claimant's attorney: Michael D. Flynn, Attorneys at Law By: Valerie J. Lauriello, Esq. Defendant's attorney: Hon. Eric T. Schneiderman Attorney General of the State of New York By: Alexia Capote Dodd Assistant Attorney General
Synopsis
Claimants' unopposed motion to voluntarily discontinue the claim is granted.
Case information
UID: 2014-039-396 Claimant(s): JEROME F. WILLETT, Jr., an infant, by his mother and natural guardian ROSE PARKER, and ROSE PARKER, Individually Claimant short WILLETT, Jr. name: Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 119205 Motion number(s): M-84097 Cross-motion number(s): Judge: James H. Ferreira Claimant's Michael D. Flynn, Attorneys at Law attorney: By: Valerie J. Lauriello, Esq. Hon. Eric T. Schneiderman Defendant's Attorney General of the State of New York attorney: By: Alexia Capote Dodd Assistant Attorney General Third-party defendant's attorney: Signature date: February 4, 2014 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimants Jerome F. Willett, Jr., an infant, by his mother and natural guardian Rose Parker, and Rose Parker, individually, filed this claim with the Chief Clerk of the Court of Claims on November 26, 2010. Claimants seek damages arising from medical treatment that Willett received at the State University of New York Stony Brook University Hospital in 2008. Claimants now move for an order permitting them to voluntarily discontinue this action pursuant to CPLR 3217(b). Defendant has submitted an affidavit indicating its support of the motion.
Where, as here, a party to the claim is an infant, a claim may not be discontinued "except upon order of the court and upon terms and conditions, as the court deems proper" (CPLR 3217 [b]; see CPLR 3217 [a] [2]; Belkin v State of New York, UID No. 2007-039-022 [Ct Cl, Ferreira, J., June 20, 2007]). "The determination of a motion for leave to voluntarily discontinue an action . . . pursuant to CPLR 3217 (b) rests within the sound discretion of the court" (Parraguirre v 27th St. Holding, LLC, 37 AD3d 793, 793 [2d Dept 2007]; see Tucker v Tucker, 55 NY2d 378, 383 [1982]). However, "a party cannot ordinarily be compelled to litigate and, absent special circumstances - such as prejudice to a substantial right of the defendant or other improper consequences - discontinuance should be granted" (Hurrell-Harring v State of New York, 112 AD3d 1213, 1215 [3d Dept 2013] [internal citations omitted]; see Parraguirre v 27th St. Holding, LLC, 37 AD3d at 793-794).
In support of their motion, claimants have provided the Court with the petition of Rose Parker, the mother and natural guardian of the infant claimant, sworn to on September 18, 2013. In her petition, Ms. Parker states that, on March 21, 2013, with the consent of the Supreme Court, she settled a companion action against Willett's treating physician on Willett's behalf. She also indicates her consent to the voluntary dismissal of this claim. Claimants have also submitted a copy of the Infant's Compromise Order entered in Supreme Court on March 21, 2013, authorizing Ms. Parker to settle the Supreme Court action and ordering that the settlement proceeds be deposited in an account for the sole use and benefit of the infant. As noted above, defendant's counsel has submitted an affidavit indicating her support of claimants' motion.
There being no showing of prejudice to defendant, and claimants having consented to discontinuance of the claim, the Court finds no reason to deny claimants' motion to voluntarily discontinue the claim.
Accordingly, it is ordered that M-84097 is granted, and Claim No. 119205 is discontinued. The Clerk of the Court is hereby directed to close the file.
February 4, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Motion for Voluntary Discontinuance, dated September 18, 2013;
2. Attorney's Affirmation in Support by Valerie J. Lauriello, Esq., dated September 18, 2013 with supporting exhibits;
3. Parent's Petition in Support by Rose Parker, sworn to September 18, 2013; and
4. Affidavit in Support by Alexia Capote Dodd, AAG, dated October 9, 2013.