New York State Court of Claims

New York State Court of Claims

HUNTER v. THE STATE OF NEW YORK, #2000-019-547, Claim No. 100421, Motion No. M-62684


Synopsis


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 roadway.

Case Information

UID:
2000-019-547
Claimant(s):
HELENE M. HUNTER
Claimant short name:
HUNTER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100421
Motion number(s):
M-62684
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
EISENBERG & KIRSCH, ESQS.BY: Bertram W. Eisenberg, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Earl F. Gialanella, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 5, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

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 May 24, 1999.
  2. Verified Answer, filed June 28, 1999.
  3. Notice of Motion No. M-62684, dated November 6, 2000, and filed November 8, 2000.
  4. Affirmation of Earl F. Gialanella, AAG, in support of motion, dated November 6, 2000, with attached exhibits.
  5. Affidavit of Dean A. Smith, in support of motion, sworn to October 23, 2000.
This Claim alleges Claimant suffered unspecified injuries on March 12, 1999 when her vehicle slid off State Route 55 in the Town of Highland, County of Sullivan due to the State's negligence in permitting ice and snow to accumulate thereon. (Notice of Claim, ¶ ¶ 2, 3 & 4). The State moves for summary judgment based upon its fifth affirmative defense that it does not own or maintain this roadway. (Verified Answer, ¶ 11).


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). In support of its motion, the State submits an affidavit from Dean A. Smith, the Assistant Resident Engineer for the State Department of Transportation in Sullivan County. Mr. Dean avers, in pertinent part, as follows:
[t]he roadway where the accident occurred is not and has never been owned by the State, and the State is not responsible for the roadway's maintenance or snow and ice control. Although known as State Route 55 the roadway is actually County Route 12, and is owned by the County of Sullivan and maintained year round by the Sullivan County Department of Public Works.

(Affidavit of Dean A. Smith, ¶ 3). The State's burden relative to establishing non-ownership of a roadway 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 [the accident occurred]." (Marie Bratchwaite v State of New York, Ct Cl., June 23, 1999, Read, P.J., Claim No. 96305, Motion No. M-58213, p 2). Clearly, the State has satisfied its prima facie burden that it does not own the roadway. As such, 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). Claimant failed to submit any opposing papers relative to this motion.


Accordingly, in light of the foregoing, the State's motion for summary judgment, Motion No. M-62684, is GRANTED and Claim No. 100421 is DISMISSED.


December 5, 2000
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims