New York State Court of Claims

New York State Court of Claims

AIKENS v. THE STATE OF NEW YORK AND THE NEW YORK STATE URBAN DEVELOPMENT CORPORATION, #2001-027-558, , Motion Nos. M-61450, CM-61593


Synopsis


Late Claim Motion and cross motion by co-defendant.

Case Information

UID:
2001-027-558
Claimant(s):
ANTHONY AIKENS
Claimant short name:
AIKENS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK AND THE NEW YORK STATE URBAN DEVELOPMENT CORPORATION
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-61450
Cross-motion number(s):
CM-61593
Judge:
ALTON R.WALDON, JR.
Claimant's attorney:
Melucci, Celauro and SklarBy: Steven Celauro, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General
By: Susan J. Pogoda, Assistant Attorney General

Wilson, Elser, Moskowitz Edelman and Dicker LLPBy: Heather E. Marsden, Esq.
Third-party defendant's attorney:

Signature date:
May 8, 2001
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were reviewed by the Court on this motion: Claimant's Notice of Motion, Claimant's Affirmation and annexed Exhibits A-G, Defendant's Affirmation in Opposition and Exhibits A-C, Defendant Urban Development's Notice of Cross-Motion, Defendant Urban Development's Affirmation in Opposition and in Support of Defendant Urban Development's Cross-Motion. Claimant, Anthony Aikens, has moved for permission to file a late Notice of Claim pursuant to §10(6) of the Court of Claims Act (CCA). Defendant, the State of New York, opposes this motion. The New York State Urban Development Corporation(UDC), co-defendant in this action, has filed a cross-motion seeking dismissal of the Court of Claims action against UDC based on the Court's lack of jurisdiction over it.

Claimant alleges that on August 19, 1999, he was injured when he fell approximately 15-20 feet as he was performing demolition work at a construction site in Manhattan. Claimant states that the construction site where the accident took place was a commercial piece of property located at 140 W. 43rd Street a/k/a 138-156 W. 43rd Street, New York, N.Y.. Claimant was engaged in demolition work for an indoor parking garage that was to be erected on that site. Claimant is bringing this action pursuant to Labor Law § 240(1) since it involves a worker's fall from a height at a commercial construction site. Claimant hired an independent company to conduct a search of the New York County property records in order to determine the owner of the property where claimant was working. This search resulted in a determination that the New York City Department of General Services was the property owner. Consequently, claimant filed a Notice of Claim with the New York City Comptroller's Office on November 16, 1999. On January 13, 2000, a letter was sent to claimant from the NYC Department of Citywide Administrative Services(DCAS) General Counsel's Office in which claimant was informed that the property in question, 140 W. 43rd Street a/k/a 1472 Broadway was sold to the Urban Development Corporation(UDC). In the letter, DCAS goes on to assert that the property was sold to UDC on August 11, 1999, eight days before the subject incident. DCAS states that the property was owned by two private entities prior to this sale and that they have no record of the property in question having ever been owned by the City of New York. In response to this letter, claimant hired another private Record Abstract company to conduct another search of the property records to determine the owner of the property in question. Claimant encountered problems with this company and finally contacted a third private Record Abstract company which found the following:

"Title to the premises was conveyed by NEW YORK STATE URBAN

DEVELOPMENT CORPORATION to 42ND STREET DEVELOPMENT
PROJECT, INC. and THE CITY OF NEW YORK, on June 4, 1990 by

deeds recorded in Reel 1709, Page 2174, and Reel 1711, Page

1333, respectively. Such conveyances were made with a right of

reverter, which occurs through a "Reversionary Event," which is defined

in each deed. We refer you to the copies of each deed for a complete

exposition of the "Reversionary Event." Once that event occurs, the title

to the property reverts back to the NEW YORK STATE

DEVELOPMENT CORPORATION .

Therefore, to determine who was owner of the property on August 19,

1999, would depend upon whether or not a "Reversionary Event" had

occurred by that date. If not, then title would remain in 42ND STREET

DEVELOPMENT PROJECT, INC., and THE CITY OF NEW YORK."


In sum, claimant's research has indicated that the City of New York owned the property in question prior to this incident and may still own the property, two private entities owned the property prior to this incident, these two entities may still own the property, and the UDC owned the property prior to this incident and also may still own the property. Additionally, DCAS has indicated that the City of New York has never had an ownership interest in the property in question. Claimant has not asserted that the State of New York owned the property in question.

The Court of Claims Act §10(6) grants upon the Court the discretion to allow the filing of a late claim provided the Statute of Limitations as set forth in article 2 of the CPLR has not elapsed. In determining whether relief to file a late claim should be granted, the Court must take into consideration the factors set forth in §10(6) of the Court of Claims Act. Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 449 NYS2d 185 (1982). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling. Id. They are whether (1) the defendant had notice of the essential facts constituting the claim; (2) the defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.

The most significant issue considered by the Court in an application to file a late claim is whether the claim appears meritorious. To permit the filing of a legally deficient claim would be an exercise in futility. Savino v State of New York, 199 AD2d 254, 604 NYS2d 970 (2nd Dept. 1993). The Court of Claims is primarily a court of limited jurisdiction in which suits brought against the State of New York are heard.(see CCA § 9). There has been nothing presented by claimant which states a valid cause of action against defendant, the State of New York, therefore that portion of claimant's motion is denied at the outset. Rashed v State of New York, 232 AD2d 394, 648 NYS2d 131 (2nd Dept. 1996).

The Court of Claims does not have jurisdiction over co-defendant, the New York State Urban Development Corporation, a New York Public Benefit Corporation.[1] Gembala v Audobon Association, Inc., 97 AD2d 345, 469 NYS2d 502 (4th Dept. 1983). The Court of Claims is a court of limited jurisdiction in which suits primarily brought against the State of New York are heard.(see CCA § 9) Over the years, the State Legislature has statutorily increased the number of entities which are subject to jurisdiction in the Court of Claims. A couple of examples are the senior colleges of the City University of New York by McKinney's Education Law § 6224(4) and the New York State Thruway Authority by McKinney's Public Authorities Law §361-b. However, the New York State Urban Development Corporation does not fall within that category. Additionally, the UDC was established by the State Legislature under the New York State Urban Development Corporation Act.(see McKinney's Unconsolidated Laws, Ch. 24). Section 6281-a of the Act directs a tort litigant to General Municipal Law section 50-e and not to the Court of Claims Act. Section 50-e has its own requirement of a Notice of Claim as well as separate Statute of Limitations requirements and a direction that all applications made pursuant to it be made in the Supreme or County Court. This confirms that the appropriate forum for a tort action against the UDC is the New York State Supreme Court. The Court of Claims has no jurisdiction over this matter and this action must be dismissed.

It is unnecessary for the Court to consider the remaining CCA 10(6) factors since claimant's action is jurisdictionally defective.

Therefore, for the foregoing reasons, claimant's motion is denied and co-defendant's cross-motion is granted.


May 8, 2001
New York, New York

HON. ALTON R.WALDON, JR.
Judge of the Court of Claims




[1]The Court notes that the same analysis would hold true for the 42nd Street Development Project, Inc., a wholly owned subsidiary of the UDC, which is also another New York Public Benefit Corporation.