New York State Court of Claims

New York State Court of Claims

REYES v. THE STATE OF NEW YORK #2000-013-011, Claim No. 98903, Motion No. M-61415


Synopsis


Claimant's motion to withdraw claim for assault and medical neglect is granted and claim is dismissed.

Case Information

UID:
2000-013-011
Claimant(s):
JOSE REYES
Claimant short name:
REYES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98903
Motion number(s):
M-61415
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
JOSE REYES, Pro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
BY: CAROL A. COCCHIOLA, ESQ Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 9, 2000
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


On April 19, 2000, the following papers were read on Claimant's motion to withdraw claim:

1. Notice of Motion

2. Supporting Affidavit (unsworn)

3. Affirmation in Opposition


Claimant filed this action seeking to recover damages for an alleged assault and battery he experienced during a cell extraction procedure and for medical neglect. In the present motion, he seeks to discontinue his claim without prejudice because he wants to pursue this matter through a 42 USC §1983 claim in Federal Court.

Defendant does not oppose the discontinuance of this claim, but urges me to dismiss the claim with prejudice because Claimant presently has a number of other claims pending in this Court and in Federal Court, and because Claimant mistakenly withdrew another claim when he actually intended to withdraw this one.

I conclude that the claim should be dismissed without prejudice.

Claimants are ordinarily permitted to discontinue an action without prejudice in order to rectify a tactical error, unless the defendant would be prejudiced by the discontinuance (Motler v Motler, 92 AD2d 962, affd 60 NY2d 244; Valladares v Valladares, 80 AD2d 244, 257-260, affd sub nom. 55 NY2d 388). Here, Defendant has not shown that its rights would be impaired in any way by Claimant's proposed discontinuance without prejudice (cf., NBN Broadcasting v Sheridan Broadcasting Networks, 240 AD2d 319 [discontinuance without prejudice sought to evade an adverse order on a motion for summary judgment]; Valladares v Valladares, supra [discontinuance sought to circumvent limits on equitable distribution statute]). Certainly Defendant did not show "any evidence of prejudice that would outweigh the prejudice to [Claimant] in being prohibited from bringing [the federal civil rights] claim in the future" (Christenson v Gutman, 249 AD2d 805, 806).

The fact that Claimant, as a pro se litigant, made a mistake in withdrawing a claim did not prejudice Defendant. Nor is it relevant that he is pursuing several other claims, where there is no showing that Claimant is an irresponsible litigant or that his claims are frivolous.

Claim No. 98903 is hereby dismissed without prejudice pursuant to CPLR 3217(b).


June 9, 2000
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims