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Pena v. State of N.Y.

NYS Granted Dismissal of Amended Claim Alleging VTL §388 Claim, Denied as to Negligence

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The following papers numbered 1-3 were read and considered by the Court on the State’s motion to dismiss the amended claim and claimant’s cross-motion for leave to amend the amended claim: Notice of Motion, Attorney’s Supporting Affirmation and Exhibit 1 Notice of Cross-Motion, Good Faith Affirmation, Attorney’s Affirmation and Exhibits in Support of Cross-Motion and in Opposition to Motion       2 Attorney’s Affirmation and Exhibit in Opposition to Cross-Motion and Reply           3 DECISION AND ORDER Background   Claim No. 130502 alleges that on August 5, 2017 at approximately 11:00 a.m., claimant was traveling in the Lake Welch Beach parking lot, Stony Point, Rockland County, when an all terrain vehicle (ATV) operated by Nicholas R. Hughes and owned by New York State Office of Parks and Historic Preservation was traveling at a high rate of speed and struck claimant’s vehicle (Claim, 3). The Police Accident Report attached to the claim indicates that claimant was driving a 2008 Suzuki four-door sedan and that Hughes was driving a 2007 Kawasaki ATV. Photographs taken of the vehicles at the scene were also attached to the claim. After claimant served a copy of the claim upon the State, the parties stipulated to permit claimant to serve an amended claim alleging that the State was liable pursuant to Vehicle and Traffic Law §388 Negligence in use or operation of vehicle attributable to owner (State’s Exs. B, 3; Claim, 4) and that claimant had sustained a serious injury as defined in Insurance Law §5102 (d) and economic loss as defined in Insurance Law §5102 (a) (Claim

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