New York State Court of Claims

New York State Court of Claims

MIKLOS v. THE STATE OF NEW YORK, #2003-010-040, Claim No. 108153, Motion No. M-67450


Synopsis


Case Information

UID:
2003-010-040
Claimant(s):
ANNA MIKLOS
Claimant short name:
MIKLOS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108153
Motion number(s):
M-67450
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
JOHN M. HOCHFELDER, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 4, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-4 were read and considered by the Court on defendant's motion to dismiss and oral argument was heard on February 5, 2004.:[1]
Notice of Motion, Attorney's Supporting Affirmation and Exhibit..........................1

Affirmation in Opposition and Exhibits...................................................................2

Reply Affirmation and Exhibits................................................................................3

Defendant's Letter Dated December 19, 2003 with Attached Affidavit of James F. O'Neil.......................................................................................................................4

Claim No. 108153 alleges that claimant was injured on August 13, 2002 when she tripped and fell on a defective sidewalk "north of 321 North Highland Avenue, Ossining, New York" (Defendant's Motion Papers, Ex. A, ¶3).

In opposition to defendant's motion to dismiss, claimant submitted her attorney's affirmation. The attorney did not have any personal knowledge of the facts; nor did claimant submit an affidavit from someone with personal knowledge. Claimant concedes that defendant is not responsible for the maintenance of the sidewalk in issue; nonetheless claimant argues that defendant may be liable because "a New York State contractor" may have left the sidewalk in an allegedly dangerous condition (Affirmation in Opposition of Claimant's Attorney). Specifically, claimant's attorney stated in his Affirmation in Opposition:
" I deposed the Village of Ossining Village Manager, Lynn McCrum. He stated that a Department of Public Works employee under his jurisdiction visited the site with him two weeks ago and at that time stated to him that prior to August 13, 2002 a New York State contractor dug up the sidewalk site and laid two pipes under the sidewalk site, leaving the sidewalk in the condition depicted in the photographs attached hereto. McCrum had no records today to substantiate that information."

Claimant did not submit a copy of the deposition, nor did claimant submit an affidavit of the Village Manager. Claimant's attorney further conceded at oral argument that any affidavit from McCrum would not be based on McCrum's direct knowledge and would have consisted of inadmissible double hearsay that was insufficient to defeat a motion for summary judgment. Claimant also did not provide a sworn statement from the unidentified Department of Public Works employee, nor did claimant explain the absence of an affidavit of someone with personal knowledge. Claimant did not submit any other supporting documentation such as a work record indicating that a New York State contractor had in fact performed work at the site at the relevant time period.

Defendant submitted an affidavit of Michael McBride, New York State Department of Transportation (DOT) Resident Engineer for northern Westchester County and the affidavit of James F. O'Neil, DOT's Permit Engineer for the area covering the accident site (Defendant's Reply, Exs. A, B). The affidavits established that DOT had not authorized any work to be performed on the sidewalks or curbs in the area at issue for four years preceding the accident date and no work had been performed by DOT during that time period (id.).

The Court finds that defendant has sufficiently demonstrated entitlement to dismissal of the claim (see Kisloff v State of New York, 248 AD2d 680 [claim against State was appropriately dismissed where State submitted probative documentary evidence and claimant's materials submitted in opposition were insufficient to create an issue of fact]; Oquendo v Rosgro Realty Corp., 117 AD2d 528, 529 [an affirmation of an attorney who has no personal knowledge of the facts has no probative value]).

Accordingly, defendant's motion is GRANTED and Claim No. 108153 is dismissed (CPLR 3211[a][7]).


March 4, 2004
White Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of Claims





[1] The motion was brought pursuant to CPLR §3211; however, by letter dated December 19, 2003, the Court advised the parties that the motion would be treated as one for summary judgment and the parties were afforded the opportunity to submit any further papers to the Court prior to January 21, 2004. No papers were submitted. By request of the parties, oral argument was adjourned from January 28, 2004 to February 5, 2004. On February 5, 2004, the Court afforded the parties a second opportunity to submit any further papers to the Court by February 18, 2004. No papers were submitted.