New York State Court of Claims

New York State Court of Claims

TRADER v. STATE OF NEW YORK, #2000-005-500, Claim No. 89885, Motion No. M-59730


Defendant sought summary judgment on 3 grounds: [1] no premises liability - motion granted; [2] the untimeliness and lack of merit of the cause of action added by the Appellate Division (259 AD2d 951) sounding in negligent training, supervision and education - relief denied, deferring to the sub silentio judgment of the 4th Department, and [3] the cause of action for negligent inspection involved a discretionary governmental activity for which there is immunity, as opposed to a ministerial act - judge reserved, pending the trial to determine whether the activities were ministerial or discretionary.

Case Information

In the Matter of the Claim of KATHLEEN TRADER, Individually, and KATHLEEN TRADER as Administrator of the Estate of RUSSELL DOUGLAS HENNING, deceased
Claimant short name:
Footnote (claimant name) :
Edward Henning's status was previously determined in Motion No. M-51300, filed on June 2, 1995, and accordingly his name is hereby removed from the caption herein.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
BY: ALAN D. VOOS, Esq.Attorney for the Claimant
Defendant's attorney:
Assistant Attorney GeneralAttorney for Defendant
Third-party defendant's attorney:

Signature date:
February 2, 2000

Official citation:

Appellate results:
See also (multicaptioned case)


On August 11, 1999, the following papers, numbered 1 to 9, were read on motion by Defendant for summary judgment dismissing the claim:

Notice of Motion, Affirmation and Exhibits Annexed 1, 2

Affirmation in Opposition and Exhibits annexed 3

Reply Affirmation and Exhibit annexed 4

Briefs for Claimants-Appellants and Brief for Respondent

(State of New York) to the Appellate Division - Fourth Judicial
Department in the appeal of Motion No. M-55150 herein 5, 6, 7

Filed Papers: Second Amended Claim; Answer to
Second Amended Claim 8, 9

Upon the foregoing papers, and after hearing Alan D. Voos, Esq., on behalf of Claimant and James L. Gelormini, Esq., on behalf of Defendant, the motion is granted in part and denied in part, and otherwise the decision is reserved.

The claim herein alleges that the decedent, Claimant's son, was a carnival worker who was standing on the roof of a concession stand in Medina, New York, when he came in contact with an overhead electrical power line on July 15, 1993, suffered an electric shock and fell to the ground. The decedent died on September 1, 1993, at the Erie County Medical Center, allegedly as a result of the injuries sustained in the aforementioned accident of July 15. The Second Amended Claim was filed on April 13, 1999, in accordance with the decision and order of the Appellate Division, Fourth Judicial Department of March 19, 1999 (
259 AD2d 951
). The Defendant's Answer thereto was subsequently filed on June 4, 1999.

The Defendant seeks summary judgment dismissing the claim in its entirety on several grounds. First, as to the cause of action sounding in premises liability, inter alia, based on alleged ownership and control, the Claimant has not raised any opposition to the Defendant's motion seeking dismissal of this cause of action. Accordingly, the motion is granted to the extent of dismissing the cause of action sounding in premises liability.

Second, Defendant seeks dismissal of the claim sounding in negligent training, supervision and education of its employees on the ground of untimeliness and on the merits. This cause of action was added at the direction of the Appellate Division, in the exercise of its discretion. The Defendant has argued before me that it never had the opportunity to argue the timeliness of that cause of action, because until the Appellate Division specifically permitted that cause of action, it had never filed an answer or made a motion to dismiss for untimeliness, and thus never waived the defense of untimeliness (Court of Claims Act Section 11[c]).[1] The Claimant argues that since the Appellate Division exercised it own discretion to permit this cause of action to be pleaded, that such decision is the "law of the case", and that the timeliness question, as well as the appearance of meritoriousness, were considered, sub silentio.

There was much discussion before me of the relation back theory (CPLR 203), and the parties, after oral argument of this matter, provided to me the appellate briefs in the aforesaid appeal of my motion decision and order, to review whether the Appellate Division had heard argument on the question of the timeliness of this cause of action. My review of the three appellate briefs submitted to the Fourth Department reveals that the Defendant did not raise or argue the timeliness of the cause of action sounding in negligent training, supervision and education. Whether one argues that the Defendant could have and thus should have raised the question in front of the Appellate Division, or that the failure to have raised it constitutes the waiver contemplated by Court of Claims Act Section 11(c), begs the question. It would be presumptuous to dismiss as untimely a cause of action which the Appellate Division has overtly permitted, particularly when it interposed its own discretion.

Similarly, implicit in the Fourth Department's exercise of its own discretion, albeit while finding that I had not abused my discretion when I denied the amendment of the claim, is the finding that the amendment was at least facially meritorious. As Claimant has noted, while leave to amend a pleading should be freely granted, an amendment that is devoid of merit will not be permitted, citing Manufacturers and Traders Trust Company v McCabe Electric, Inc.,187 AD2d 962. Thus, irrespective of whether the underlying merit of the amendment was directly argued, it is beyond cavil that such was considered by the Appellate Division when it ruled. Accordingly, that part of the Defendant's motion seeking summary judgment dismissing the cause of action sounding in negligent training, supervision and education is denied.

The Defendant also seeks summary judgment dismissing the cause of action for negligent inspection, primarily on the basis that such inspection involved a discretionary governmental activity for which the State enjoys a measure of immunity. The Defendant reviews the language of the Court of Appeals in Arteaga v State of New York, 72 NY2d 212, where it noted that the State retained its immunity for those governmental actions requiring the exercise of discretion. The immunity of course does not apply where the action was exclusively ministerial (Tango v Tulevech, 61 NY2d 34). Claimant acknowledges that part of the duties of the inspector here involved the exercise of his discretion, but argues that when a situation is so obvious and dangerous, as the one she alleges existed here, no discretion exists in the duty to alleviate it. Generally speaking, where the duty involves a quantifiable standard of measurement, it is more susceptible to an argument that the duty involves a ministerial act and hence no immunity, but where the duty invokes the exercise of discretion by the inspector, as it may here, immunity will apply. The issues here do not appear to approximate the inherently dangerous instrumentality, the circumstances in Runkel v City of New York, (282 App Div 173; appeal after remand , 286 App Div 1101; mot denied, 2 NY2d 1014; affd 3 NY2d 857) which primarily deals with the failure to demolish a vacant building where there was notice of its dilapidated condition.

However, given the imminence of the trial herein, and recognizing that there will be a trial of the cause of action authorized by the Appellate Division, I will hear evidence with respect to the nature of the duties of the inspector in question, and ascertain whether they invoked discretionary or ministerial responsibilities. And, if I find that such duties invoke vague, subjective, unmeasurable or discretionary type behavior, this cause of action will be dismissed. Accordingly, I reserve decision with respect to this aspect of the Defendant's motion.

In sum therefore, the motion is granted in part and denied in part, and is otherwise reserved. Trial is scheduled to commence on March 13, 2000 at 9:30 a.m., and a Trial Preparation Conference is hereby scheduled for February 28, 2000 at 10:00 a.m. A separate order related thereto will issue.

February 2, 2000
Rochester, New York

Judge of the Court of Claims

[1] Such defenses were raised as the Third and Fourth Affirmative Defenses in the Defendant's Answer to the Second Amended Claim.