Case law

Poysa v. State

102 Misc. 2d 269 · New York Court of Claims · Dec 19, 1979

The testimony of the claimants’ expert established that, under the circumstances the placement of the unstabilized material was not in accordance with good engineering practices prevailing at that time. … Clearly, Weiss v Fote ( 7 NY2d 579 , supra) was not premised on this type of absolute immunity, since the holding there was predicated on a standard of reasonable care.

Hann v. State

137 Misc. 2d 605 · New York Court of Claims · Nov 9, 1987

To establish the standard of conduct against which the circumstances of each case are to be tested, a risk-benefit analysis may be fruitfully utilized. … One clearly relevant factor in assessing the risk that Miranda posed to other inmates is his past prison record.

Drever v. State

45 Misc. 3d 224 · New York Court of Claims · Mar 14, 2014

To establish a cause of action for interference with the right of sepulcher, claimant must establish six factors: (1) claimant is decedent’s next of kin; (2) claimant had the right to possess decedent’s remains; (3) defendant … Clearly, recording a person’s consent for organ donation was not and is not limited to governmental donation sources.

Nephew v. State

178 Misc. 824 · New York Court of Claims · Aug 10, 1942

Many anomalies exist in the history of government relations with the Indians which have not been clearly resolved, but this much at least seems certain: a. … The trooper disregarded these established precedents. Both the arrest and the assault took place within the reservation. 7. Self-defense as a justification is not established by the facts.

Carlson v. State

34 Misc. 3d 242 · New York Court of Claims · Sep 8, 2011

To obtain such disfavored relief a movant must establish his cause of action or defense “sufficiently to warrant the court as a matter of law in directing judgment” in his favor (CPLR 3212 [b]), and must do so by tender of … Notably, title II includes a specific provision addressing remedies ( 42 USC § 12133 , incorporating by reference 29 USC § 794a), which clearly authorizes money damages awards in claims against public entities.

Cottingham v. State

182 Misc. 2d 928 · New York Court of Claims · Nov 19, 1999

As clearly stated: “Where a change in the common law is to be effectuated the legislative intent to do so must be clearly and plainly expressed. … Clearly, a snowplow does not fit into category 1 or 2.

Harris v. State

187 Misc. 2d 512 · New York Court of Claims · Jan 22, 2001

medical costs and physical pain and suffering associated with this incident, claimant seeks compensation for the emotional distress she suffered while she waited to find out if she was HIV-positive or had AIDS (Acquired Immune … “Summary judgment is a drastic remedy which should only be granted when it clearly appears that no material and triable issue of fact is presented” (Taft v New York City Tr.

Norton v. State

53 Misc. 2d 495 · New York Court of Claims · Apr 21, 1967

He further contended that Camp Smith is not an armory as described in section 8-a and that no basis for liability has been established either by statute or decisional authority. *497 Claimants’ counsel, in opposition to the … Y. 405, 410 [1920]) stated: “ Statutes in derogation of the sovereignty of a state must be strictly construed and a waiver of immunity from liability must be clearly expressed.”

Johnson, Drake & Piper, Inc. v. State

62 Misc. 2d 725 · New York Court of Claims · Feb 18, 1970

Clearly, these proceedings were conducted with an eye toward future litigation against the State. … The court reaffirmed its earlier position and stated that “ the immunity from disclosure provided by section 3101 (subd.

Blauvelt v. State

160 Misc. 319 · New York Court of Claims · Jul 28, 1936

These facts clearly establish the negligence of the agents of the State and an award should be made to this claimant. (Curley v. State of New York, 148 Misc. 336 ; Martindale v. State of New York, 269 N. … Waiver of immunity from liability for torts of State officers and employees.

Waterloo Woolen Manufacturing Co. v. State

118 Misc. 516 · New York Court of Claims · Apr 15, 1922

Such statutes must be strictly construed, and a waiver of immunity from liability must be clearly expressed. Smith v. State of New York, 227 N. Y. 405, 410 . … Also the fact has been satisfactorily established by undisputed evidence in the record.

Sweet v. State

114 Misc. 2d 269 · New York Court of Claims · May 4, 1982

Aside from the absence of any facts which would establish the presence of a special duty, the very nature of the DEC’s activity is couched in immunity. Specifically, Mr. … Hence while actual damages directly caused by DEC entry may be recovered, this statute is clearly not intended to abrogate the immunities discussed above and cannot be con *278 strued as creating a cause of action against

Arquette v. State

190 Misc. 2d 676 · New York Court of Claims · Sep 20, 2001

review of the reasons behind the development of the Ferres exception to General Obligations Law § 9-103, as well as an excellent example of the difficulties encountered in determining whether a specific recreational area qualifies … and not in a boat, would fall within the scope of the immunity for navigational acts.

Claim of the Estate of Klee v. State

94 Misc. 2d 284 · New York Court of Claims · Apr 8, 1976

Testimony of coworkers of the decedent clearly establishes that no safeguards had been taken, on this day at least, to protect the excavation from a cave-in. … We consider him to be qualified for his duties. The project had not been started on March 27, 1967; he made further inspections on April 3, April 7, and April 20, 1967, to find nothing had been started.

Brewer v. State

176 Misc. 2d 337 · New York Court of Claims · Mar 12, 1998

Section 106 (a) of the Bankruptcy Code provides, in pertinent part, that “[n] otwithstanding an assertion of sovereign immunity, sovereign immunity is abrogated as to a governmental unit to the extent set forth in this section … The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 ).

Tuchrello v. State

190 Misc. 2d 664 · New York Court of Claims · Aug 6, 2001

I find that the State is entitled to the qualified immunity from liability arising out of highway planning decisions that require expert judgment or the exercise of discretion (Friedman v State of New York, supra; Weiss v … Finally it appears that, since the trial court was not examining applicable guidelines, a Weiss v Fote defense and any qualified immunity related thereto were not considered.

Remley v. State

174 Misc. 2d 523 · New York Court of Claims · Jul 30, 1997

Nonetheless, because much of what occurred is memorialized in documents and because more than the passage of time is needed to establish that the delay in filing has caused substantial prejudice to defendant, the State has … comment b; cf., Toker v Pollack, 44 NY2d 211 ; Pecue v West, 233 NY 316 [person giving information to a District Attorney concerning the alleged commission of a crime afforded a qualified privilege because the communication

Homere v. State

79 Misc. 2d 972 · New York Court of Claims · Nov 18, 1974

We think it ¡was clearly negligent for the State to allow the discharge of this man without reconvening a “ Commission” to re-evaluate his case. … Y. 681 , swpra) does not create an inflexible total immunity (¡see, for example, O’Neil v. State *976 of New York, 66 Misc 2d 936 ). Clearly, St. Gteorge v.

Miller v. State

137 Misc. 768 · New York Court of Claims · Aug 27, 1930

From Esperance to the underpass, a distance of something over five miles, the highway was a completed, concrete, much-traveled road, and the flares, if lighted, could have been clearly seen from the west in full view about … If that were true, it would be the duty of this court under well-established principles to construe them, if possible, so that both might stand and force and effect be given to each.

Milner v. New York State Higher Education Services Corp.

4 Misc. 3d 221 · New York Court of Claims · Apr 29, 2004

Defendant, viewing the claim as sounding in defamation has moved for summary judgment asserting the claim is untimely, barred by truth as an absolute defense and that the defendant enjoys a qualified immunity in making the … Clearly, the instant claim filed in May 2001 is untimely. Despite claimant’s arguments to the contrary, defendant is entitled to summary judgment on the second cause of action as well.