New York State Court of Claims

New York State Court of Claims

HARRIS v. THE STATE OF NEW YORK, #2000-019-537, Claim No. 98542, Motion No. M-61857


State's motion for summary judgment granted since Claimant failed to raise a triable issue of fact relative to the State's ownership, control, or maintenance of either the sidewalk, adjacent roadway, or monitoring well.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Claimant's attorney:
LAW OFFICES OF ALVIN M. BERNSTONEBY: Lisa Lynn Grieco, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Lois M. Booker-Williams, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 20, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for summary judgment pursuant to CPLR 3212 on the grounds this Court lacks jurisdiction to hear this Claim.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed June 29, 1998.
  2. Verified Answer, filed July 31, 1998.
  3. Notice of Motion No. M-61857, dated June 8, 2000 and filed June 13, 2000.
  4. Affirmation of Lois M. Booker-Williams, AAG, in support of motion, dated June 8, 2000, with attached exhibits.
  5. Affidavit of Randall W. Austin, in support of motion, sworn to November 9, 1999.
  6. Affidavit of Osama Khalil, in support of motion, sworn to July 7, 1998.
  7. Affidavit of Robert Stapf, in support of motion, sworn to June 8, 2000.
  8. Affirmation of Lisa Lynn Grieco, Esq., in opposition to motion, dated September 1, 2000, with attached exhibits.
  9. Affidavit of Frances Harris, in opposition to motion, sworn to September 1, 2000.
This Claim arose "[o]n November 22, 1996 at approximately 1:45 P.M. on a certain public sidewalk in front of premises 81 8th Avenue, in the County, City and State of New York, more particularly that portion of the sidewalk containing a metal pipe protruding from it with the following identification: Morrison Monitoring well 7-418XA in the sidewalk of the aforementioned premises." (Claim, ¶ Third). The State moves for summary judgment based upon its sixth affirmative defense that it does not own, operate, or maintain the situs of this accident. (Verified Answer, ¶ 12).

On a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). The State submits affidavits from three separate State agencies in support of its motion, namely the Bureau of Land Management; the State Department of Transportation (hereinafter "DOT"); and the State Department of Environmental Conservation (hereinafter "DEC"). First, the State submits an affidavit from Robert Stapf, Chief of the Bureau of Land Management, who has "[s]upervisory responsibility for maintaining an inventory on property that is owned by New York State." (Affidavit of Robert Stapf, ¶ 1). Mr. Stapf avers "[b]ased on my research of pertinent records, I have concluded that the alleged accident involving Frances Harris did not take place in any area owned, operated, maintained or controlled by the State of New York." (Affidavit of Robert Stapf, ¶ 3; emphasis added).

The next affidavit comes from Osama Khalil, Claims Engineer in DOT's New York City Regional office, and focuses on the roadway. Mr. Khalil avers, in pertinent part, as follows:
[I] caused a search of the a [sic] records of the Department of Transportation which included Official Orders and Construction Contract Plans for maintenance, ownership, and construction jurisdiction to be conducted regarding the subject situs and determined that the subject situs was not part of the State Arterial System on November 22, 1996.

The Commissioner of Transportation has never filed an order pursuant to Section 349-d or Article 12-B of the Highway Law declaring the portion of the roadway in be part of the State System.
(Affidavit of Osama Khalil, ¶ ¶ 4 & 5; emphasis added).

The last affidavit from Randall W. Austin, Chief of the Regional Oil Spill Prevention and Response Program for Region 2 of DEC, addresses the monitoring well itself and states, in part, the following:
I have directed my staff to review any and all records relating to: petroleum storage at this site, reported spills, and any spill response actions undertaken either by DEC or one of its agents and/or contractors. The review indicated that there has not been a spill reported at the subject site nor has the DEC or any agent or contractor thereof undertaken a spill cleanup or remediation at the site. Additionally, DEC has not directed any entity to install the described monitoring well for any reason.

My review also indicated that, subsequent to November 22, 1996, DEC spill response staff did visit the subject site in response to a query about the monitoring well. At that time staff determined that the well was not part of any past or ongoing DEC-mandated cleanup or remediation effort.

Therefore, I respectfully submit that the described well was not installed by, or at the request of, DEC and that DEC does not own, operate or maintain the situs of the accident alleged in the claim and has had no involvement in the past or continuing use of the monitoring well described.
(Affidavit of Randall W. Austin, p 2; emphases added).

The State's burden relative to establishing non-ownership on a motion for summary judgment is satisfied "[b]y submitting a sworn statement by an official responsible for overseeing property utilized by the [relevant department or agency], who declares that, based upon his review of the records and his knowledge and experience, the State does not own, operate or maintain the property where claimant fell." (Marie Bratchwaite v State of New York, Ct Cl., June 23, 1999, Read, P.J., Claim No. 96305, Motion No. M-58213, p 2). In this Court's view, these three affidavits cumulatively serve to satisfy the State's prima facie burden that it does not own the sidewalk or adjacent roadway and that the DEC did not install the subject monitoring well. As such, on these three issues, the burden shifted to Claimant as "[t]he party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action [citation omitted]." (Alvarez v Prospect Hosp., 68 NY2d 320, 324).

In opposition, Claimant submits an attorney's affirmation, Claimant's affidavit of merit, as well as a deposition transcript from a New York City employee from a related supreme court matter. Claimant does not vigorously contest these three representations, namely (1) that the State does not own, operate, control or maintain the sidewalk on which this accident occurred; (2) the State does not own, operate, control or maintain the adjacent roadway; and (3) the DEC did not direct the installation of the subject monitoring well.[1] Rather, Claimant argues these affidavits do not deal with the central issue of the ownership of the monitoring well itself.

Claimant raises a valid point that the Affidavit of Mr. Austin deals with the installation of the monitoring well rather than the ownership of the monitoring well. However, this Court finds the unchallenged representations regarding the lack of the State's ownership of the surrounding land dispositive of the instant motion for the reason set forth below. Initially, the Court notes that Claimant's affidavit of merit, Claim, Notice of Intention and Verified Bill of Particulars each describe this accident in terms of a broken and uneven sidewalk with a pipe protruding therefrom. Assuming, arguendo, the State did own the monitoring well, Claimant has not come forward with any evidence that the State had any duty to maintain the area (i.e. the sidewalk) surrounding the monitoring well. (Pierre v City of New York, __ AD2d __, 709 NYS2d 206). As stated in Pierre v City of New York:
[the defendant] did not own the area surrounding the box. It did not own the land on which the box was located, and there was no evidence that the area was constructed in a special manner for its use.... Moreover, there was no evidence that [the defendant] created the defect by installing the box in a negligent manner....

(Pierre v City of New York, supra, __ AD2d __, 709 NYS2d 206; see also, Delano v Consolidated Edison Co. of N.Y., 231 AD2d 671; Kobet v Consolidated Edison Co. of N.Y., 176 AD2d 785).

In sum, Claimant has failed to raise a triable issue of fact relative to the State's ownership, control, or maintenance of either the sidewalk or adjacent roadway; any duty to maintain the area surrounding the monitoring well; or that the State created the defect by improperly installing the monitoring well.

Accordingly, in light of the foregoing, the State's motion for summary judgment, Motion No. M-61857, is GRANTED and Claim No. 98542 is DISMISSED.

October 20, 2000
Binghamton, New York

Judge of the Court of Claims

Claimant's argument that the deposition testimony of a New York City employee in a related supreme court matter disavowing ownership of the well infers ownership to the State is without merit as it is speculative and conclusory at best. Claimant does not attack the validity of Mr. Austin's affidavit on whether the monitoring well was installed at the behest of a State agency other than the DEC.