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Defendant-appellant State of New York ("State") appeals from a Decision-Order of the United States District Court for the Western District of New York (Curtin, Ch. J.) holding "in abeyance," pending completion of discovery in the action, its motion to dismiss the complaint on the ground of eleventh amendment immunity. Finding that the Order is appealable, and that the State is entitled to an immediate determination of its claim of immunity in this case, we reverse and remand for a ruling on the motion.


841 F.2d 28 (1988)

James and Marion SMITH; and Spencer Smith, an infant, by his natural parents, James and Marion Smith, Plaintiffs-Appellees, v. Ronald REAGAN, as President of the United States; Julius W. Becton, Jr., as Director of the United States Federal Emergency Management Agency; Lee Thomas, as Administrator of the United States Environmental Protection Agency; the State of New York, by its Governor, Mario Cuomo, and The Love Canal Area Revitalization Agency, Defendants, State of New York, Defendant-Appellant.

No. 339, Docket 87-6163.

United States Court of Appeals, Second Circuit.

Argued December 2, 1987.

Decided March 1, 1988.

New York Law School Location: File # 482, Box # 120