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SMITH v. REAGAN

No. 339, Docket 87-6163.

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.

United States Court of Appeals, Second Circuit.

Decided March 1, 1988.

Attorney(s) appearing for the Case

Stuart Miller, Asst. New York State Atty. Gen., Environmental Protection Bureau, New York City (Robert Abrams, New York State Atty. Gen., Albany, N.Y., of counsel), for defendant-appellant.

Lewis Steele, Buffalo, N.Y., for plaintiffs-appellees.

Before KAUFMAN, MINER and DAVIS, Circuit Judges.

MINER, Circuit Judge:

I.

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...

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