New York State Court of Claims

New York State Court of Claims

HOROWITZ v. THE STATE OF NEW YORK, #2000-004-536, Claim No. 97279, Motion No. M-62266


Synopsis


Claimant's motion for permission to discontinue without prejudice, granted.

Case Information

UID:
2000-004-536
Claimant(s):
AVROHOM HOROWITZ, INFANT BY FATHER AND NATURAL GUARDIAN, MORDECHAI HOROWITZ AND MORDECHAI HOROWITZ, INDIVIDUALLY
Claimant short name:
HOROWITZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
97279
Motion number(s):
M-62266
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
EPHREM WERTENTEIL, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: James E. ShoemakerAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 19, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant moves for an Order allowing Claimant to discontinue this Claim,


without prejudice.


The following papers were considered by the Court:

Claim, filed November 3, 1997 1

Verified Answer, filed November 28, 1997 2

Notice of Motion, filed August 29, 2000 3


Affirmation of Ephrem Wertenteil, Esq., in support of motion,
dated August 22, 2000 4



The Claim alleges in pertinent part:
1. The time when and the place where the claim arose is August 18, 1997 at approximately 7:30 P.M. on the sidewalk in front of the "Kosher Inn" located on Route 42 Main Street Woodbourne, New York approximately 20 feet south of the southwest corner of Main Street and Robbi Lane and approximately 9 to 10 feet from the curb.

The accident occurred when claimant was caused to trip and fall due to a raised, unevenly graded and sloping sidewalk with his head striking a water cap bearing the legend "Pollard Water" protruding from the ground.

***

4. The Defendant was negligent in:

the ownership, operation, maintenance, control, design, construction and repair of its sidewalk and water cap;

***

in allowing its sidewalk and water cap and entrance ramps to be, become and remain in a dangerous and hazardous condition;

4. [sic] Notice is not a prerequisite in that the defendant, its agents, servants or employees created the condition.

If notice is a prerequisite, then both actual and constructive notice are claimed.

(Paper No. 1 [emphasis in original])


Claimant counsel affirms in pertinent part:
I submit this affirmation in support of this motion to discontinue. This action arises from personal injuries sustained as a result of a trip and fall on a defective sidewalk on August 17, 1997.[1]

Defendant alleges that the subject sidewalk is not owned, operated, maintained or controlled by it and that it is in fact so owned and controlled by the Town of Fallsburg.

The Town of Fallsburg has recently agreed to settle this case in the action against it [sic] Supreme Court Sullivan County. Since claimant is an infant, court approval is required to settle and/or discontinue. Since the Town of Fallsburg has apparently conceded control by having settled, it would appear that the State did not control the subject property.

The papers are being prepared for the infant's compromise in Supreme Court Sullivan County.

Accordingly, it is respectfully requested that the court grant claimant leave to discontinue without prejudice. Claimant requests that [sic] discontinuance without prejudice, since court approval of the settlement in Supreme Court Sullivan County, has not issued yet.

(Paper No. 4 [footnote added])


CPLR 3217 entitled "VOLUNTARY DISCONTINUANCE" provides in subdivision (a) (2) that a Claim may be discontinued without a Court order "provided no party is an infant".


CPLR 3217 (b) provides, in pertinent part:
By order of court. Except as provided in subdivision (a), an action shall not be discontinued by a party asserting a claim except upon order of the court and upon terms and conditions, as the court deems proper.


The State, though served, has not opposed the motion.


Upon review of the pleadings, the notice of motion and the affirmation of Ephrem Wertenteil, Esq., it is ORDERED that the above-entitled Claim be and the same hereby is discontinued, without prejudice.


October 19, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
The date of the accident appears to be August 18, 1997, as alleged in the filed Claim.