McCormick v. State

Herlihy, P. J. (dissenting).

However independent of the State the East Hudson Parkway Authority might be, insofar as the Taconic State Parkway system is concerned, section 469-a of the Public Authorities Law expressly provides that the instant case is to be brought in the Court of Claims. Furthermore, unlike the situation in Cantor v State of New York (43 AD2d 872) the said section 469-a expressly provides that any recovery "shall be paid out of the state treasury”. (See 1963 Opns Atty Gen 59.) A consideration of section 469-a and title 11 of article 2 of the Public Authorities Law in its entirety makes it apparent that insofar as the Taconic State Parkway is concerned, the sole party in interest is the State of New York. Accordingly, the motion to dismiss should have been denied.

Furthermore, the record does not establish any prejudice to the State in regard to the proposed amended claim which the claimants sought to assert and the court erred in denying the motion to amend.

The remaining motions should be referred back to the Court of Claims for disposition. The order appealed from should be *33reversed; the motion by the State to dismiss the claim denied; the motion by claimants to serve and file the amended claim granted; and the matter remitted for disposition of the remaining motions.

Koreman, Main and Reynolds, JJ., concur with Greenblott, J.; Herlihy, P. J., dissents and votes to reverse in an opinion.

Order modified, on the law and the facts, by reversing so much thereof as (1) granted the State’s motion to dismiss the claim insofar as it asserts a cause of action based upon negligence in the construction of the Taconic State Parkway, and (2) denied the claimants’ cross motion for permission to serve and file an amended claim asserting a cause of action based upon negligence in the design of the Taconic State Parkway; by vacating so much thereof as denied claimants’ cross motion as sought permission to amend its claim in other respects, and remitting the matter to the Court of Claims for disposition thereof; and by vacating so much thereof as denied claimants’ cross motion for pretrial discovery relating to causes of action based on alleged negligence in construction and design of the Taconic State Parkway, and remitting the matter to the Court of Claims for disposition thereof; and, as so modified, affirmed, without costs.