New York State Court of Claims

New York State Court of Claims

SCHMIDT v. THE STATE OF NEW YORK, #2003-013-035, Claim No. 98418, Motion Nos. M-67106, CM-67497, CM-67737


Synopsis


Case Information

UID:
2003-013-035
Claimant(s):
SCOTT M. SCHMIDT AND ELIZABETH L. SCHMIDT
Claimant short name:
SCHMIDT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98418
Motion number(s):
M-67106
Cross-motion number(s):
CM-67497, CM-67737
Judge:
PHILIP J. PATTI
Claimant's attorney:
ELLIS & KUSTELL
BY: CARL B. KUSTELL, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 22, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision



On December 17, 2003, oral argument was heard and the following papers were read on the State's motion to dismiss and for summary judgment (M-67106); on the Claimant's cross-motion for an order granting partial summary judgment (CM-67497); and on Claimant's cross-motion to strike the answer and for the imposition of sanctions (CM-67737):

Notice of Motion M-67106; Ramsay Affirmation dated July 11, 2003; Sarratori Affidavit sworn to July 10, 2003; Barnack Affidavit sworn to July 10, 2003, and Exhibits Annexed

Notice of Cross-Motion CM-67497; Affirmation of Carl B. Kustell, Esq., dated October 6, 2003; Schmidt Affidavit sworn to October 3, 2003; Sukdolak Affidavit sworn to October 2, 2003; Burns Affidavit sworn to October 4, 2003; Levine Affidavit sworn to October 3, 2003

Ramsay Reply Affirmation dated November 5, 2003 and Exhibits; Barnack Affidavit sworn to November 4, 2003, with Exhibits Annexed

Notice of Cross-Motion CM-67737; Kustell Reply Affirmation dated December 1, 2003; Supplemental Reply Affidavit of Levine sworn to November 26, 2003; Pilon Affidavit sworn to November 25, 2003; Reed Affidavit sworn to November 28, 2003; Neilans Affidavit sworn to December 1, 2003 and Exhibits Annexed

Ramsay Affirmation in Opposition dated December 12, 2003 and Exhibits Annexed; Lester Affidavit sworn to December 11, 2003 and Exhibit Annexed; Walek Affidavit sworn to December 11, 2003 and Exhibits Annexed

Kustell Reply Affirmation dated December 14, 2003, with Sarratori Affidavit sworn to December 12, 2003, and Exhibit Annexed


Ramsay Affirmation dated December 16, 2003


Upon review of the papers, and after hearing Carl B. Kustell, Esq. on behalf of Claimants, and Thomas G. Ramsay, Esq., Assistant Attorney General, on behalf of the Defendant, and in accordance with certain rulings made on the record, the Claimants' cross-motion to strike the answer and for sanctions is denied; and Defendant's motion to dismiss the claim and the Claimants' cross-motion, inter alia, for an order granting partial summary judgment on liability are both denied inasmuch as there are material issues of fact outstanding, and on the further ground that all discovery has not yet been completed, including the soon to be scheduled further depositions of certain State employees previously deposed, based upon the recent provision by the Defendant's Department of Transportation of previously sought after items of discovery.


December 22, 2003
Rochester, New York

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