New York State Court of Claims

New York State Court of Claims

CICIONE v. THE STATE OF NEW YORK, #2002-028-020, Claim No. 96361, Motion Nos. M-64548, CM-64740


Synopsis


Claimant's motion for permission to discontinue infant's action in Court of Claims granted. Father's derivative claim dismissed on Defendant's cross-motion.

Case Information

UID:
2002-028-020
Claimant(s):
DENISE CICIONE, as Administratrix of the Estate of THOMAS NEIL CICIONE, deceased, and DENISE CICIONE, Individually
Claimant short name:
CICIONE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96361
Motion number(s):
M-64548
Cross-motion number(s):
CM-64740
Judge:
RICHARD E. SISE
Claimant's attorney:
SILBERSTEIN AWAD & MIKLOS, P.C.BY: Paul N. Nadler, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Ellen Matowik, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 5, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on Claimant's motion for permission to discontinue Claim on behalf of infant son and Defendant's cross-motion to dismiss father's derivative claim:

1) Notice of Motion and Supporting Affirmation of Paul Nadler, Esq., filed January 10, 2002 with annexed Exhibits A-J


2) Notice of Cross-Motion and Affirmation of Assistant Attorney General
Ellen Matowik, filed February 19, 2002, (Matowik Affirmation), with annexed Exhibits A-B


3) Letter from Paul Nadler, Esq. dated April 1, 2002[1]

Filed Papers: Amended Claim filed April 19, 1999 and Amended Answer filed June 14, 1999.


The underlying claim seeks damages for the alleged negligence of the Defendant which resulted in the death of the infant Thomas Neil Cicione. On or about October 27, 2000 Denise Cicione, individually and as Administratrix of her child's estate executed a Stipulation of Discontinuance (Nadler Affirmation, Exhibit A) which purported to discontinue her derivative claim and the action on behalf of the estate. The Court advised Claimant's counsel that an application was necessary before the Court would permit discontinuance of the estate's action (Nadler Affirmation, Exhibit B) . The Court further advised that the Stipulation was effective with regard to the mother's individual Claims (Id.). The instant application ensued.

In response, the Defendant advises it does not oppose Claimant's application and cross-moves for dismissal of the father's derivative claims. In support, Defendant points out that no claim was actually pleaded on behalf of the father, although, Claimant was directed by Judge Silverman to add the father to the caption and, given the anticipated discontinuance of the estate's claim, the derivative action cannot stand alone.

The Court has reviewed the detailed submission made on behalf of Claimant and is satisfied both as to the propriety of the discontinuance in this Court[2] and, as importantly, that the information imparted to Ms. Cicione enabled her to have a full understanding of this stage in this litigation (see, Nadler Affirmation, Exhibit E - Affidavit of Denise Cicione). Accordingly, the motion is granted.

Turning to the cross-motion, counsel for the estate has confirmed that it does represent the father and that there is no opposition to the Defendant's cross-motion. In the first instance, Defendant is correct in stating the amended claim seeks no relief on behalf of the infant's father. Even if the father had asserted a derivative claim, it would fail with the discontinuance of the claim from which it was derived (see, Wittrock v Maimonides Medical Center-Maimonides Hospital, 119 AD2d 748; Pugach v Borja, 175 Misc 2d 683).

Based upon the foregoing, Motion M-64548 and Cross-motion CM-64740 are GRANTED. The Clerk shall accept the previously filed Stipulation of Discontinuance as discontinuing Claim No. 96361 as against the estate and Claim No. 96361 shall be and hereby is dismissed as to the Claims of the father, Neil Cicione.


April 5, 2002
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] This letter was provided in response to the Court's inquiry regarding representation of the father, Neil Cicione.
[2] Claimant has pending an action in Supreme Court, Suffolk County (see, Nadler Affirmation, Exhibit G).