New York State Court of Claims

New York State Court of Claims

BECKLES v. THE STATE OF NEW YORK, NATIONAL GUARD and GERARD JOSEPH, #2002-016-049, Claim No. 105134, Motion No. M-64757


Synopsis


Auto accident claim was dismissed on the grounds that the state was immune pursuant to §8 of the Court of Claims Act since alleged negligent driver was engaged in the active service of the state pursuant to sections five, six or seven of the military law.

Case Information

UID:
2002-016-049
Claimant(s):
SANAYI BECKLES
Claimant short name:
BECKLES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, NATIONAL GUARD and GERARD JOSEPH
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105134
Motion number(s):
M-64757
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Kuharski & Levitz, LLPBy: Lonny Levitz, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
May 17, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant State of New York's motion to dismiss the claim of Sanayi Beckles. In her claim, Ms. Beckles alleges that while walking in a crosswalk at Fifth Avenue and West 37th Street in Manhattan on September 28, 2001, she was struck by a "Hummer" operated by an employee of "either the State of New York, the National Guard [or] the Armed Forces." The grounds for the State's motion are that: (1) it is immune pursuant to §8 of the Court of Claims Act; and (2) the claim fails to comply with the specificity requirements of §11 of the Court of Claims Act. Joseph Gerard, the driver of the Hummer, and a resident of Buffalo, is a sergeant in the "New York Army National Guard." See ¶9 of the February 19, 2002 affirmation of Grace A. Brannigan (the "Brannigan Aff.").

On September 11, 2001, Governor George E. Pataki declared a disaster emergency in the State of New York as a result of that day's acts of terrorism. Governor Pataki also ordered, pursuant to §6 of the Military Law[1], that all or part of the organized militia of the State be ordered into active service. See Executive Order Nos. 113 and 113.2, annexed to the Brannigan Aff. as Exhibit C.

Sergeant Gerard was ordered by the Office of the Adjutant General of the State of New York "into the active military service of the State of New York" for the period of September 23-28, 2001 for the purpose of "Support of Operation Trade Center." The authority for such order was "Section 6, Military Law, State of New York." See Exhibit D to the Brannigan Aff.

Pursuant to §8-a of the Court of Claims Act, the state waived its immunity:
from liability . . . with respect to the torts of members of the organized militia and employees in the division of military and naval affairs of the executive department in the operation, maintenance and control of vehicles . . . owned by the state . . . .while acting within the scope and in the performance of their duties in the military service of the state, except while engaged in the active service of the state pursuant to sections five, six or seven of the military law.


(emphasis supplied).


Claimant argues that defendant "does not proffer any proof that at the time of the accident, Mr. Gerard was engaged in active military service." To the contrary, exhibit D to the Brannigan Aff. provides that Gerard was ordered into "active military service" pursuant to §6 of the Military Law, for a period of time including the date of the accident. Moreover, the United States Army Accident Report prepared in connection with the incident specifically provides that Gerard was "on duty" at the time of the incident. See the attachment to the April 19, 2002 supplemental affirmation of Grace A. Brannigan. Accordingly, the State is immune from liability and defendant's remaining argument concerning §11 of the Court of Claims Act need not be reached.

For the foregoing reasons, having reviewed the parties' submissions,[2] IT IS ORDERED that motion no. M-64757 be granted and claim no. 105134 be dismissed.


May 17, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]Section 6 of the Military Law provides in relevant part that "[t]he governor shall have power, in case of invasion, disaster, insurrection, riot, breach of the peace, or imminent danger thereof, to order into the active service of the state for such period, to such extent and in such manner as he may deem necessary all or any part of the organized militia."
  2. [2]The following were reviewed: the State of New York's notice of motion with affirmation in support and exhibits A-D; claimant's affirmation in opposition; and the State's supplemental affirmation.