New York State Court of Claims

New York State Court of Claims

MONTELLO v. THE STATE OF NEW YORK, #2004-010-015, Claim No. 108783, Motion No. M-68265


Synopsis


Case Information

UID:
2004-010-015
Claimant(s):
JASON MONTELLO
Claimant short name:
MONTELLO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108783
Motion number(s):
M-68265
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
MICHAEL G. LO RUSSO, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Judith C. McCarthy, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 26, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on defendant's motion to dismiss:
Notice of Motion, Attorney's Supporting Affirmation and Exhibit.........................1

Attorney's Affirmation in Opposition and Exhibits.................................................2

Attorney's Reply Affirmation....................................................................................3

Claim No. 108783 arises out of a slip and fall that allegedly occurred on December 12, 2002 in the stairwell of Phoenix House Foundation, 458 Stony Street, Town of Yorktown Heights. Defendant moves to dismiss the claim on the ground that this Court does not have subject matter jurisdiction over this claim (Court of Claims Act § 9). In support of its motion, defendant submits the affidavit of Richard R. Hogle, Associate Counsel to the New York State Office of Alcoholism and Substance Abuse Services (OASAS) (Defendant's Ex.). The affidavit indicated that OASAS, a State agency which operates, manages and controls 13 addiction treatment centers, does not operate, manage or control Phoenix House in Yorktown Heights. Accordingly, there is no basis for this claim against the State of New York.

Claimant opposes the motion arguing that it is premature and the State of New York has not effectively been ruled out as a proper party defendant.

On the papers before this Court, defendant has made a sufficient showing to warrant dismissal of the claim pursuant to CPLR 3211(a)(2) and (a)(7) (see Kisloff v State of New York, 248 AD2d 680).

Motion GRANTED.


April 26, 2004
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims