New York State Court of Claims

New York State Court of Claims

McCLERNON v. THE STATE OF NEW YORK, #2003-019-527, Claim No. 103715, Motion No. M-66423


Synopsis


Claimant's motion for order discontinuing action is granted.

Case Information

UID:
2003-019-527
Claimant(s):
DONALD F. McCLERNON
Claimant short name:
McCLERNON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103715
Motion number(s):
M-66423
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
ROBERT L. MILLER, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 17, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks an order discontinuing his Claim. The State of New York (hereinafter "State") has no objection to the requested relief.


The Court has considered the following papers in connection with this motion:
  1. Claim, filed January 23, 2001.
  2. Verified Answer, filed March 6, 2001.
  3. Notice of Motion No. M-66423, dated January 7, 2003, and filed February 13, 2003.
  4. Affidavit of Robert L. Miller, Esq., in support of motion, sworn to January 7, 2003, with attachments.
  5. Affirmation of James E. Shoemaker, AAG, in support of motion, dated March 5, 2003, and filed March 7, 2003.
This Claim was filed with the Clerk of the Court on January 23, 2001 and personally served on the Attorney General's office on that same date. The State filed a Verified Answer on March 6, 2001. This Claim arises from an automobile accident which occurred on November 3, 2000 at the intersection of State Route 17C and Oak Hill Road in the Town of Barton, Tioga County, New York. The Claim alleges, among other things, that the State was negligent in its maintenance of the highway and in failing to post and provide proper signs and signal devices.


By way of this motion, Claimant seeks an order permitting him to discontinue this matter. Claimant's counsel avers that upon further investigation he has made the determination that no cause of action exists against the State. Counsel's Affidavit is co-signed by Claimant. Claimant has also signed and submitted herewith a Stipulation of Discontinuance, although said Stipulation is not signed by the State. Although it is not entirely clear why these parties did not jointly sign a Stipulation of Discontinuance without the need for obtaining court permission pursuant to CPLR 3217 (a) (2),[1] nevertheless the Court will grant Claimant's motion upon the consent of both parties.


In view of the foregoing, it is ORDERED, that Claimant's motion for an order discontinuing this action, Motion No. M-66423, is GRANTED and Claim No. 103715 is DISMISSED with prejudice.


March 17, 2003
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims




[1]A stipulation of discontinuance is available for use when "[n]o party is an infant, incompetent person for whom a committee has been appointed or conservatee and no person not a party has an interest in the subject matter of the action." (CPLR 3217 [a] [2]).