New York State Court of Claims

New York State Court of Claims
MILLER v. STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, # 2020-053-549, Claim No. 133494, Motion No. M-95971

Synopsis

Claimant's motion seeking an order pursuant to CPLR 3217 (b) permitting the voluntary discontinuance of this action with prejudice is granted.

Case information

UID: 2020-053-549
Claimant(s): NICOLE MILLER, as Administratrix of the Estate of AMANDA M. GREEN
Claimant short name: MILLER
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 133494
Motion number(s): M-95971
Cross-motion number(s):
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
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant Nicole Miller is the Administratrix of the Estate of Amanda M. Green and the sister of Amanda M. Green. A claim was filed on behalf of decedent Amanda M. Green arising out of an incident that occurred on August 20, 2017 when she was hiking with her husband, William J. Green II and their two infants when decedent tragically fell to her 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. Miller of these facts and the law governing this claim and she understands that the discontinuance of this action will result in her, as the representative of her sister'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 [1982]). 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-95971 is GRANTED, and claim no. 133494 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.