New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2003-019-572, Claim No. 108277, Motion No. M-67619


Synopsis


Case Information

UID:
2003-019-572
Claimant(s):
JOHANNA M. SMITH, as Representative of The Estate of ROBERT J. ALLEN, now deceased
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108277
Motion number(s):
M-67619
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
CELLINO & BARNESBY: Brian A. Goldstein, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 20, 2003
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant State of New York (hereinafter "State") moves for dismissal pursuant to CPLR 3211 (a) (7) on the grounds this claim fails to state a cause of action. Claimant has submitted a letter to the court indicating no opposition to the motion.

This claim arose on June 13, 2003 when Robert J. Allen was fatally injured as the result of a motor vehicle accident which occurred on Harper Hill Road in the Town of Colesville, Broome County, New York. (Claim, ¶ 4). The State moves for dismissal based upon its first and second affirmative defenses that the claim fails to state a cause of action because the State does not own, operate, or maintain the subject roadway and/or adjacent culverts. (Verified Answer, ¶ ¶ 5 & 6).


The State submits an affidavit from Peter Schultze, Acting Resident Engineer for the State Department of Transportation, Region 9, who avers that the State did not build, design, inspect, repair or maintain Harper Hill Road in the Town of Colesville. (State's Exhibit C, ¶ 3). The State's burden relative to establishing non-ownership 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 claimant fell." (Marie Bratchwaite v State of New York, Ct Cl, June 23, 1999, Read, P.J., Claim No. 96305, Motion No. M-58213, p 2). As such, Mr. Schultze's affidavit satisfies the State's prima facie burden that it does not own or maintain the subject roadway and/or adjacent culverts. Accordingly, the burden shifted to claimant as the non-moving party "[t]o 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). Rather, claimant has submitted a letter to the court indicating she has no objection to the State's motion. As such, claimant has failed to raise a triable issue of fact relative to the State's ownership, control, or maintenance of the roadway and/or adjacent culverts.


Accordingly, in light of the foregoing, the State's dismissal motion, Motion No. M-67619, is GRANTED and Claim No. 108277 is DISMISSED.

November 20, 2003
Binghamton, New York

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



The Court has considered the following papers in connection with this motion:
  1. Verified Claim, filed September 15, 2003.
  2. Verified Answer, filed October 10, 2003.
  3. Notice of Motion No. M-67619, dated November 4, 2003, and filed November 6, 2003.
  4. Affirmation of Joseph F. Romani, AAG, in support of motion, dated November 4, 2003, with attached exhibits.
  5. Affidavit of Peter Schultze, in support of motion, sworn to October 2, 2003.
  6. Memorandum of Law, in support of motion, dated November 4, 2003.
  7. Letter from Brian A. Goldstein, Esq. to David B. Klingaman, Chief Clerk, dated November 11, 2003, advising of no opposition to motion.