The defendant, by this motion, seeks to dismiss the claim arising from Calistus
Riley's construction site fall from a ladder at 59 Maiden Lane in lower
Manhattan on July 18, 2000.
Defendant's motion is two-pronged: i) the State of New York does not own,
operate or maintain the area described in the claim, and ii) such area, "the
second floor of premises under construction" (claim, ¶3), insufficiently
pinpoints where Riley fell. As to the second prong, Section 11 of the Court of
Claims Act provides that a "claim shall state the time when and place where such
claim arose, the nature of same, and the items of damage or injuries claimed to
have been sustained and the total sum claimed" (subd b). Such may well require
a greater degree of specificity than naming the floor of an office building.
But see Cannon v State of New York, 163 Misc 2d 623, 622 NYS2d 177
(Ct Cl 1994). A lack of specificity per §11 cannot be saved by simply
amending the claim, inasmuch as subject matter jurisdiction has been thereby
implicated. Byrne v State of New York, 104 AD2d 782, 480 NYS2d 225 (2d
Dept 1984), lv denied 64 NY2d 607, 488 NYS2d 1023 (1985). On that note,
claimant in his Affirmation in Opposition (¶3) for the first time states,
"More specifically, plaintiff's accident occurred on the south side of the
This claim is based upon sections 200, 240.1 and 241 of the Labor Law. To find
liability under §200, some level of supervisory control by a defendant must
be found. Under §§240.1 and 241, a defendant who owns a construction
site is subject to suit for a worker's injury irrespective of whether it
controls or supervises the job site. Dispositive then here is the unchallenged
affidavit of Robert J. Stapf, Chief of the Bureau of Land Management of the
State Office of General Services (def affirm, exh C). His conclusion was that
Riley's fall did not occur in an area owned, operated, maintained or controlled
by the State. Stapf did concede that defendant was leasing three floors of 59
Maiden Lane, but explained that the second floor was not among them.
It should be noted the claim maintains that defendant had entered into a
contract with Grisdale Ball to "perform general contracting and/or construction
management services at the aforesaid premises" (¶4). But no copy of the
contract was presented with the claim or with claimants' Affirmation of
Opposition, and there is no way to determine how or if such contract could
somehow trump Stapf's affidavit.
In view of the foregoing, having reviewed the parties
, IT IS ORDERED that defendant's
motion M-62851 be granted
, and claim no. 102903 is dismissed.