New York State Court of Claims

New York State Court of Claims

SICILIANO v. THE STATE OF NEW YORK, #2001-014-527, Claim No. 99597, Motion Nos. M-62593, CM-62668, CM-62774


Synopsis


The claimant's motion for summary judgment on liability is denied; the defendant's cross motion to dismiss the claim is denied.

Case Information

UID:
2001-014-527
Claimant(s):
JOSEPH SICILIANO The Court of Claims does not have jurisdiction over the State Insurance Fund as an entity distinct from the State of New York (see, Cardinal v State of New York, 304 NY 400, 404, Matter of James v State of New York, 90 AD2d 342, 343). Thus, the Court has amended the claim's caption to reflect the proper defendant, and to delete the named State Insurance Fund.
Claimant short name:
SICILIANO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court of Claims does not have jurisdiction over the State Insurance Fund as an entity distinct from the State of New York (see, Cardinal v State of New York, 304 NY 400, 404, Matter of James v State of New York, 90 AD2d 342, 343). Thus, the Court has amended the claim's caption to reflect the proper defendant, and to delete the named State Insurance Fund.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99597
Motion number(s):
M-62593
Cross-motion number(s):
CM-62668, CM-62774
Judge:
S. Michael Nadel
Claimant's attorney:
Joseph B. Pachura, Jr., Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen S. Mendelson, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 5, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on the claimant's motion for summary judgment on the issue of liability and to compel discovery (Motion No. M-62593), and on the defendant's cross motion to dismiss the claim (Cross Motion No. CM-62668), and on the claimant's cross motion to amend the claim (Cross Motion No. CM-62744): Notice of Motion, Affidavit and Exhibits annexed, Affirmation and Exhibits annexed; Notice of (defendant's) Cross Motion, Affirmation and Exhibits annexed; Affidavit in opposition to defendant's cross motion and Exhibits annexed; Notice of (claimant's) Cross Motion, Affirmation in Support, Affirmation in Opposition to defendant's Cross Motion; Affirmation in Support of defendant's Cross Motion and in Opposition to Claimant's Motion.


Upon review of the submissions on these several motions, it appears that the parties do not disagree that the claimant was awarded, pursuant to a settlement under Workers' Compensation Law §32, an amount to be paid by the State Insurance Fund, which paid him less than that amount, as a consequence of paying a portion of the amount to the claimant's ex-spouse in compliance with an "Income Execution for Support Enforcement Pursuant to New York CPLR Section 5241" arising out of a matrimonial proceeding. To the extent that it is the claimant's contention that the defendant had no authority to pay the income execution, his position is unsupported; payment was required by Rule 300.29 of the Workers' Compensation Board.

Insofar as the claimant has not established the amount that should have been paid pursuant to the income execution and that more than that amount was actually paid by the defendant, he has not met his burden on his motion for summary judgment, which is denied.

The defendant's contention that this Court is without jurisdiction because the claimant should have either sought administrative relief from the Workers' Compensation Board or appealed a determination of the Board to the Appellate Division, is without merit. The claimant seeks money damages arising out of the alleged failure of the defendant to pay him an award he alleges it should have; a matter over which this Court has jurisdiction. Court of Claims Act, §9(2). In the absence of any suggestion that the defendant has been prejudiced by the unauthorized service by the claimant of the Second Amended Claim, the claimant's motion for permission to serve and file it is granted.

The defendant's explanation for its failure to conduct depositions and to respond to the claimant's demand for a bill of particulars, as set forth in Paragraphs 21 and 22 of the first Affirmation in Support of defendant's Cross Motion and in Opposition to the Claimant's Motion, is at odds with correspondence annexed to the Affirmation in Support of claimant's motion. See, Exhibits B, E and F. The claimant's motion to compel discovery is granted, to the extent that it is hereby

ORDERED, that depositions of both sides shall take place within 60 days of the date of the filing of this Order; and that the defendant will respond to the claimant's demand for a bill of particulars, dated May 25, 2000, within 30 days of the date of the filing of this Order. Any application for additional time to comply with the foregoing shall be upon affirmation, submitted to chambers no less than 10 days prior to the aforestated dates.

In accordance with the foregoing, the defendant's cross motion is denied; the claimant's motion for summary judgment is denied; the claimant's motion to compel discovery is granted to the extent indicated, supra; the claimant's cross motion to amend the claim is granted: the claimant shall serve and file the Second Amended Claim within 45 days of the date of the filing of this Order.

April 5, 2001
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims