New York State Court of Claims

New York State Court of Claims

ALEXANDER v. THE STATE OF NEW YORK, #2004-030-934, Claim No. 109571, Motion Nos. M-68803, CM-68935


Synopsis



Case Information

UID:
2004-030-934
Claimant(s):
VICTOR ALEXANDER
Claimant short name:
ALEXANDER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109571
Motion number(s):
M-68803
Cross-motion number(s):
CM-68935
Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
Victor Alexander, pro se
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 23, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court read and considered the following papers on claimant's motion for a subpoena duces tecum and defendant's cross-motion for an order dismissing the claim: Notice of Motion, Affidavit and Exhibits; Notice of Cross-Motion, Affirmation and Exhibits, Claimant's "Answer" (i.e., opposition to cross-motion) and Exhibits.

In the instant claim, which was filed on July 2, 2004 pursuant to the court's decision and order filed June 22, 2004 granting permission to late file, claimant alleges that he was exposed to toxic substances in the course of his employment hauling away the remains of the World Trade Center by tugboat after the September 11, 2001 terrorist attacks and that the State of New York is liable for his ensuing damages.

In the first of the three motions currently before the court, claimant requests that the court issue a subpoena duces tecum directed to Alan Gold, Esq. at the Bureau of Legal Affairs of the New York City Department of Sanitation to produce certain records. As defendant's submission indicates that the department complied with claimant's request for documents subsequent to his making this motion, this motion is denied.

Defendant's cross-motion seeks dismissal of the claim for lack of jurisdiction. The court's review of the papers reveals no basis to dismiss for lack of jurisdiction, but the evidence and arguments submitted in support of that cross-motion could support, in the court's view, a motion for summary judgment dismissing the claim. Accordingly, the court hereby gives notice, pursuant to CPLR 3211(c), that it is treating the defendant's cross-motion as one seeking summary judgment on the ground that the claim has no merit. The cross-motion is adjourned to the court's February 2, 2005 motion calendar and both parties are invited to submit whatever additional submissions and arguments they deem relevant, to be considered along with the previous submissions.

Additionally, claimant's disclosure motion filed on November 22, 2004, returnable January 5, 2005, is also adjourned to February 2, 2005.

To summarize, Motion M-68803 is denied and motions CM-68935 and M-69375 are adjourned, sua sponte, to February 2, 2005.

December 23, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims