|Claimant(s):||NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, AS SUBROGEE OF FRED T. KRUEGER AND ELAINE K. KRUEGER|
|Claimant short name:||NY CENTRAL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the only proper defendant.|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||BOEGGEMAN, GEORGE & CORDE, P.C.
BY: SONIA R. GRIFFIN, ESQ.
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: WANDA PEREZ-MALDONADO, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||November 10, 2009|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion for an Order
pursuant to Civil Practice Law and Rules §3217(b):
1,2 Notice of Motion; Affirmation in Support by Sonia R. Griffin, attorney for the claimant, and attached exhibits
3 Affirmation in Opposition to Claimant's Motion for Discontinuance of Claim by Wanda Perez-Maldonado, Assistant Attorney General, and attached exhibits
4 Reply Affirmation by Sonia R. Griffin, attorney for claimant
5-7 Filed papers: claim, answer; New York Central Mutual Fire Insurance Company a/s/o Fred T. Krueger and Elaine K. Krueger v State of New York, UID # 2009-030-558, Claim No. 114287, Motion No. CM-76871(2) (Scuccimarra, J., September 28, 2009)
This subrogation claim relates to an automobile accident occurring on January 28, 2007 at approximately 12:15 p.m. on Haviland Hollow Road in the Town of Patterson, New York. At that time, a state trooper vehicle driven by trooper Rachel A. Longmaid collided with the vehicle driven by Fred T. Krueger, which was owned by Elaine Krueger who was a passenger. The claim filed herein names as defendants the State of New York, the New York State Police, and Rachel A. Longmaid.
Civil Practice Law and Rules §3217(b) allows a party to seek a court order discontinuing an action where no stipulation to discontinue has been executed, and the time period for service of a notice of discontinuance has expired. Notably, any court order would contain "terms and conditions, as the court deems proper" and "[a]fter the cause has been submitted to the court or jury to determine the facts the court may not order an action discontinued except upon the stipulation of all parties appearing in the action . . ." Civil Practice Law and Rules §3217(b). The effect of discontinuance is also set forth in the statute, in that such order of discontinuance is "without prejudice", unless otherwise stated. Civil Practice Law and Rules §3217(c).
"While the authority of a court to grant or to deny an application made to it pursuant to CPLR 3217 (subd [b]) by a party seeking voluntarily to discontinue litigation is within its sound discretion, ordinarily a party cannot be compelled to litigate and, absent special circumstances, discontinuance should be granted . . . Particular prejudice to the defendant or other improper consequences flowing from discontinuance may however make denial of discontinuance permissible or,
. . . obligatory." Tucker v Tucker, 55 NY2d 378, 383-384 (1982).(3)
Avoidance of an adverse ruling is an example of a type of special circumstance when an order granting discontinuance without prejudice is inappropriate. See e.g. Kaplan v Village of Ossining, 35 AD3d 816, 817(2d Dept 2006).(4) Here, however, defendant's earlier cross-motion for summary judgment was denied as noted, and the present motion is made before the matter has been submitted to the Court for determination. Thus there is no avoidance of an "adverse ruling" per se.
Alternatively, and in keeping with the competing interests of allowing a party to litigate in whatever forum it chooses, and avoiding prejudice to a defendant(5) who has already expended considerable effort in maintaining a defense in the only forum in which it can be sued - the Court of Claims - from being forced to address any subsequent attempt to litigate the same matter in the Court of Claims, a discontinuance may be granted with prejudice in the Court's discretion. See Tucker v Tucker, supra(6) .
Indeed, it is a discontinuance with prejudice that is sought by claimants herein in any event. [See Reply Affirmation, ¶8].
Accordingly, and after carefully considering the foregoing, the Court hereby grants claimants' motion [M-77259] for an order discontinuing the claim against the only defendant over which the Court has jurisdiction, namely, the State of New York, with prejudice to the commencement of any future claim in the Court of Claims against the State of New York based upon this accident.
November 10, 2009
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
2. This decision and order denied defendant's cross-motion for summary judgment for the reasons stated therein. The claimant's motion for summary judgment [M-76755] was withdrawn by letter dated July 31, 2009. Thereafter, attempts to enter into a Stipulation Discontinuing the Action were not effectuated between the parties. The present motion follows.
3. "There is no question as to the purpose for which this plaintiff sought to abandon her [divorce] action instituted in December, 1978; with commendable candor she stated in her supporting affidavit that she sought discontinuance of her pending action in order that she might commence a new action, also seeking dissolution of her marriage, in which, by virtue of the action's having been commenced after the effective date of the Equitable Distribution Law, she could assert a demand for the more liberal property distribution provided . . ."
4. "The Supreme Court improvidently exercised its discretion in denying that branch of the defendants' motion which was for summary judgment dismissing the third cause of action (see CPLR 3212[e] ) and granting the plaintiffs' cross motion to voluntarily discontinue that cause of action without prejudice (see CPLR 3217[b] ). The record supports a finding that the plaintiffs were merely attempting to circumvent the effect of a preceding conditional order of preclusion (see Venture I v Voutsinas, 8 AD3d 475). 'A plaintiff should not be permitted to discontinue an action without prejudice for the purpose of avoiding an adverse order of the court" (citation omitted).
5. While defendant's attorneys - the Attorney General's Office - may need to appear and defend the individual State employee named in any State court action, and recognizing that there is something of a robbing Peter to pay Paul aspect to the legal fiction, it is not the defendant here (the State of New York) who thus incurs additional attorneys' fees by having to defend an action against it in State Supreme Court.
6. As the Court of Appeals noted in footnote 2: "It may be inquired what the rule should be in an instance in which the plaintiff is less open in disclosing the objective behind his or her motion to discontinue, or even affirmatively masks its ulterior purpose. In such a case the court might assure accomplishment of the legislative intent by exercising its statutory authority to impose appropriate terms and conditions on a discontinuance (CPLR 3217, subd [b]), as for example, by granting the application to discontinue with prejudice to institution of a subsequent matrimonial action based on any conduct which might have been the basis for an action prior to July 19, 1980."