Claimant's motion seeking an order pursuant to CPLR 3217 (b) permitting the voluntary discontinuance of this action with prejudice is granted.
|Claimant(s):||LINDA KORNOWSKI, as Administratrix of the Estate of WILLIAM J. GREEN II|
|Claimant short name:||KORNOWSKI|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||BROWN CHIARI, LLP
BY: Brian R. Hogan, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 11, 2020|
|See also (multicaptioned case)|
Claimant Linda Kornowski is the Administratrix of the Estate of William J. Green II and the grandmother and legal guardian of infants, Alexander Green and Jacob Green (the "infants"). A claim was filed on behalf of decedent William J. Green II arising out of an incident that occurred on August 20, 2017 when he was hiking with his wife, Amanda Green and the infants when decedent tragically fell to his death into the gorge at the Zoar Valley Multiple Use Area.
On November 16, 2017, claimant served upon the Attorney General of the State of New York a Notice of Intention to File a Claim and a claim was thereafter filed on August 16, 2019. An answer was served on September 24, 2019. The claimant has now filed a motion seeking an order pursuant to CPLR 3217 (b) permitting the voluntary discontinuance of this action with prejudice and without costs to any party. The defendant has not submitted any opposition papers objecting to claimant's motion.
The claimant's counsel states in his affirmation that he "has engaged in an extensive investigation of all facts and circumstances pertinent to the issue of liability. In addition to obtaining investigation reports and documents related to the incident, Claimant's counsel engaged in a physical inspection of the scene of the accident accompanied by the Erie County Sheriffs' Office detective who was in charge of the investigation of the incident at the time it occurred. Based upon the investigation conducted by Claimant's counsel and relevant legal research it was concluded that the liability cannot be established." He further states that he informed Ms. Kornowski of these facts and the law governing this claim and she understands that the discontinuance of this action will result in the infants and herself, as the representative of her son's estate, being forever barred from any monetary recovery arising out of this incident.
A claim may be discontinued pursuant to CPLR Rule 3217 (b) in the discretion of the court upon terms and conditions as the court deems proper (Parraguirre v 27th St. Holding, LLC, 37 AD3d 793, 793 [2d Dept 2007]; see Tucker v Tucker, 55 NY2d 378, 383 ). As there are no special circumstances or improper consequences that would result from claimant's request, this motion for voluntary discontinuance is granted.
Accordingly, it is hereby
ORDERED, that motion no. M-95961 is GRANTED, and claim no. 133495 is discontinued with prejudice and without costs to either party.
December 11, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1) Notice of motion and affirmation of Brian R. Hogan, Esq., dated September 24, 2020 with annexed Exhibits A-D.