New York State Court of Claims

New York State Court of Claims

JEAN-PAUL v. THE STATE OF NEW YORK, #2003-028-529, Claim No. 106712, Motion No. M-66012


Synopsis


Case Information

UID:
2003-028-529
Claimant(s):
THE ESTATE OF SHEILA JEAN-PAUL by her Administrators WILNER JEAN-PAUL & MARIE JEAN-PAUL, and WILNER JEAN-PAUL & MARIE JEAN-PAUL, individually
Claimant short name:
JEAN-PAUL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106712
Motion number(s):
M-66012
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ANDREW P. JONES, P.C.BY: Christopher I. Odili, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Grace A. Brannigan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 10, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on the State's Motion, pursuant to CPLR Rule 3211, dismissing the instant Claim:

(1) Notice of Motion and Supporting Affirmation of Assistant Attorney-General Grace Brannigan (Brannigan Affirmation) with annexed Exhibits A-C, filed November 4, 2002;

(2) Affirmation in Opposition of Christopher Odili, Esq. (Odili Affirmation) with annexed Exhibits A-E, filed January 7, 2003;

(3) Supplemental Affirmation in Support of Motion to Dismiss of Assistant Attorney-General Grace Brannigan (Brannigan Supplemental Affirmation) filed January 31, 2003.

The Claimants herein, The Estate of Sheila Jean-Paul, Wilner Jean-Paul and Marie Jean-Paul, seek damages for the death of Sheila Jean-Paul, who drowned in the area known as the Paerdegat Water Basin in Canarsie Beach Park, Brookyln, NY. The Defendant, State of New York, moves to dismiss the instant claim alleging that the Court lacks jurisdiction over the claim since the State does not own, operate or control the property in question. The attorney for the Claimants argues that the issue of who owns, operates and controls the Paerdegat Water Basin and Canarsie Beach Park is convoluted and creates an issue of fact and that, therefore, the Motion should be denied.

The following recitation of facts is based upon the Court's review of the papers submitted in connection with the instant motion. The infant Sheila Jean-Paul and some of her friends cut classes and decided to go swimming in the area near the Belt Parkway Bridge in the Paerdegat Water Basin. They reached this area by walking through Canarsie Beach Park. When they arrived at the area, Sheila Jean-Paul entered the water and reached a drop-off which was over her head and was prevented by the current from reaching the shallows. As a result she drowned.

In support of its argument that the State neither owns, operates or has control over the area of the unfortunate accident, an affidavit of Osama Khalil, a New York State Department of Transportation Claim Engineer was submitted. Mr. Khalil opines that the State did not own, control, construct or maintain the site in question, nor did it have any control contracts in effect on the site in question (Exhibit "B" annexed to Brannigan Affirmation).

In support of his opposition, the attorney for the Claimants submits a copy of an investigative report which indicates that "... Canarsie Beach Park and this entire area is part of the Gateway National Recreation Area which may be considered Federal property..." (Exhibit "C" annexed to Odili Affirmation in Opposition). It also notes that part of the Canarsie Beach Park may be used by the Parks Department of the City of New York. It is totally silent as to any State ownership, control, use or maintenance.

Neither Mr. Odili in his Affirmation, nor the Claim, state any basis for the belief that there is any nexus between the site and the State of New York. It would be sheer speculation for the Court to conclude that the proximity of the Belt Parkway caused the claimants and their attorney to assume that there was State involvement. In any event, the Affidavit of Mr. Khalil indicates that the City of New York owns, maintains and controls the Belt Parkway overpass (Exhibit "B" annexed to the Brannigan Affirmation).

A Motion to Dismiss should be granted where the essential facts have been negated beyond substantial question by the affidavits and evidentiary matter submitted (Biondi v Beekman Hill House Apt. Corp., 257 AD2d, affd 94 NY2d 659; Blackgold Realty Corp. v Milne, 119 AD2d 512, affd 69 NY2d 719). Here the Khalil Affidavit as well as the investigative report submitted by the Claimant's attorney indicate that property in question is not owned, controlled or maintained by the State.

In view of the foregoing, the Motion is granted and the Claim is dismissed.

April 10, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims