New York State Court of Claims

New York State Court of Claims

WEBSTER v. THE STATE OF NEW YORK, #2003-028-507, Claim No. 106588, Motion No. M-65923


Claim dismissed.

Case Information

PAULETTE WEBSTER, Individually, and as Temporary Administratrix for the Estate of JAMES J. WEBSTER, deceased
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Michael W. Friedman, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 30, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion to dismiss the Claim pursuant to CPLR 3211(a)(1):

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General Michael W. Friedman, filed October 9, 2002, (Friedman Affirmation), with annexed Exhibit A and Supporting Affidavit of Seth Edelman (Edelman Affidavit) with annexed Exhibits 1-4;

2) Opposition Papers: NONE.

Filed Papers: Claim, filed September 6, 2002.

On the morning of April 26, 2002, Claimant's decedent was driving his motor vehicle on Tissal Road in the Town of Saugerties, Ulster County when, as he attempted to cross the CSX Transportation railroad tracks, his motor vehicle was struck by a CSX train resulting in his injury and unfortunate death. Claimant alleges the Defendant was negligent in the "maintenance, operation, conduct and control of the railroad crossing on Tissal Road" (Claim, ¶ 5).

Defendant has timely moved pre-answer to dismiss the instant Claim based upon certain documentary evidence (see, Edelman Affidavit, Exhibits 1-4), which Defendant asserts establishes the accident site as a "private crossing" for which the Defendant bears no responsibility. Claimant has failed to oppose the motion.

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). The Court accepts the facts as alleged in the Claim as true, accords the Claimant the benefit of every possible favorable inference, and determines only whether the facts as alleged fit within any cognizable legal theory (Stukuls v State of New York, 42 NY2d 272, 275; Rovello v Orofino Realty Co., 40 NY2d 633, 634). Under CPLR 3211 (a) (1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claim as a matter of law (see, e.g., Leon v Martinez, 84 NY2d 83, 88 [documentary evidence must utterly refute factual allegations]; see also Hopkinson v Redwing Constr. Co., 2003 NY App Div LEXIS 265 [3rd Dept, January 16, 2003]).

The term "documentary evidence" as referred to in CPLR 3211 (a) (1) typically means judicial records such as judgments and orders or out-of-court documents such as contracts, deeds, wills, and/or mortgages (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10, at 20) and includes "[a] paper whose content is essentially undeniable and which, assuming the verity of its contents and the validity of its execution, will itself support the ground on which the motion is based" (Id. at 21; see also 7 Weinstein-Korn-Miller, NY Civil Practice, ¶3211.06). This is to be contrasted with the objections founded on documentary evidence listed in CPLR 3211(a)(5) which are of a nature that preclude maintaining an action (Bouquet Brands Div. of J & D Food Sales, Inc. v Citibank, 97 AD2d 936).

Defendant has offered as its documentary evidence a November, 1918 Order of the Public Service Commission (Exhibit 1) which closed and discontinued, inter alia, the Tissal Road crossing and a map of the "intercity railroad passenger service" (Exhibit 4) within New York State. In addition, Defendant has submitted what appear to be printouts of records maintained by the New York State Department of Transportation(Exhibit 2) and the United States Department of Transportation (Exhibit 3) both of which provide detailed information regarding the at-issue Tissal Road crossing. A review of the applicable case law leads this Court to conclude that only the Order of the Public Service Commission and the Map (Exhibits 1 and 4, respectively) are "documents" within the meaning of CPLR 3211(a)(1) while the Departments of Transportation "inventory" documents (Exhibits 2 and 3, respectively) which represent information compiled into a summary form are not "essentially undeniable" (cf. Kasiem v State of New York, Ct Cl [Lebous,J.] UID #2001-019-561, Claim No. 101387, August 28, 2001).

Nonetheless, the documentary evidence properly before the Court establishes the Tissal Road crossing as a private crossing not located within an "intercity rail passenger service corridor" (see, Railroad Law §97[1][b]) and is therefore beyond the control of the Department of Transportation (see, Railroad Law § 97[3]). As such, Defendant has established its defense by documentary evidence that it had no control over the situs of this accident and is entitled to judgment dismissing the Claim. Claimant's remedy may lie elsewhere (see, Russell v Fusco, 267 AD2d 738).

Based upon the foregoing, Defendant's motion is granted and Claim No. 106588 shall be and hereby is dismissed.

January 30, 2003
Albany, New York

Judge of the Court of Claims