New York State Court of Claims

New York State Court of Claims

ROSEN v. THE STATE OF NEW YORK, #2003-028-570, Claim No. 106052, Motion No. M-66519


Case Information

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: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 2, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimants' motion to strike Defendant's sixth and seventh affirmative defenses pursuant to CPLR 3211(b); or in the alternative for permission to late file a claim pursuant to Court of Claims act § 10(6); or late file a notice of claim pursuant to General Municipal Law:

  1. Notice of Motion and Supporting Affidavit of Timothy S. Brennan, Esq., filed March 11, 2003 (Brennan Affidavit), with annexed Exhibits A-F
  1. Affirmation in Opposition of Assistant Attorney General Paul F. Cagino filed April 23, 2003, (Cagino Affirmation)
  1. Reply Affidavit of Timothy S. Brennan, Esq., filed April 29, 2003 (Brennan Reply)
  1. Claimant's Memorandum of Law

FILED PAPERS: Claim, filed May 15, 2002; Answer, filed June 24, 2002.

Claimant is a developmentally delayed adult who was taking group ski lessons at Gore Mountain Ski Center on February 12, 2002. It is alleged that Claimant was permitted to ski alone down the beginner slope and during that run he collided with a "snow- gun" resulting in personal injury. Claimant commenced the instant negligence action against the State of New York by service of a claim upon the Attorney General. Defendant answered the claim and interposed eight affirmative defenses, including non-compliance with the notice requirement of General Municipal Law §50-e.

The pending motion raises two issues. The first, is whether a Claimant must comply with the General Municipal Law notice requirements when commencing an action involving the Olympic Regional Development Authority (ORDA) in the Court of Claims. The second issue is whether ORDA must be separately named as a defendant and served with the claim in order for this Court to obtain jurisdiction over the claim.

ORDA was created as a public benefit corporation by the Legislature in 1981 (L 1981, ch 404; Public Authorities Law §§ 2606, 2608 [1]) to, inter alia,"operate, manage and maintain the olympic facilities" in and around the Village of Lake Placid, Essex County (Public Authorities Law § 2606). Initially, tort actions against ORDA were to be maintained in the Supreme Court as the Legislature conditioned suit upon compliance with General Municipal Law §50-e and did not extend a grant of jurisdiction to this Court (see Pandolph v State of New York, 155 Misc 2d 612, 614).

In 1994, subdivision 4 was added to Public Authorities Law § 2622, which provided as follows:

"Notwithstanding subdivision three of this section, exclusive jurisdiction is

hereby conferred upon the court of claims to hear and determine any claim

of any person brought hereafter against the authority to recover damages for

injuries to property or for personal injury arising out of the operation by the

authority of any participating olympic facility owned by the state or of the

Gore mountain ski center, in the same manner and to the extent provided and

subject to the provisions of the court of claims act with respect to claims against

the state, and to make awards and render judgments therefor. The payment of

awards and judgments for any such claims brought in the supreme court

pursuant to this title or in the court of claims shall be made from appropriations

for judgments against the state pursuant to section twenty of the court of claims act."

(Laws of 1994, Chapter 169, Section 93)

The Appellate Division has held that this provision extends the jurisdiction of the Court of Claims to hear claims against ORDA only in situations specifically arising out of ORDA's operation of the Gore Mountain Ski Center or a state-owned Olympic facility (Plath v NY State Olympic Reg'l Dev. Auth., 304 AD2d 885) and not to other olympic facilites, such as the Olympic Arena, which although operated by ORDA are owned by the Town of North Elba Public Parks and Playground Distirct (see Public Authorities Law §§2607, 2612; see also Plath v NY State Olympic Reg'l Dev. Auth, 190 Misc 2d 198, rev'd on other grounds, Plath v NY State Olympic Reg'l Dev. Auth 304 AD2d 885).

There is no dispute the instant claim is properly venued. The first issue identified above stems from the Public Authorities Law § 2622(1) which states:
In any case founded upon tort a notice of claim shall be required as a condition precedent to the commencement of an action or special proceeding against the authority or any officer, appointee or employee thereof, and the provisions of section fifty-e of the general municipal law shall govern the giving of such notice.

Defendant urges a literal application of the statute (Cagino Affirmation ¶ 13) and Claimant relies upon the decision in Traina v New York State Olympic Regional Dev. Auth., 165 Misc 2d 870, which held that the Legislature did not intend to create a new hybrid procedure for bringing claims against ORDA in this Court and that the foregoing subdivision did not apply to Court of Claims actions (id. at 973-874). After careful review, this Court is satisfied that the reasoning in Traina v New York State Olympic Regional Development Authority, 165 Misc 2d 870, that the legislature did not intend to nor did it create a hybrid procedure for commencing a claim against ORDA, is sound. Claimant is not required to commence an action in this Court against ORDA, by complying with General Municipal Law §50-e.

The sole remaining issue is whether Claimant was required to name and serve ORDA.

"[T]here are a series of Appellate Division cases pointing to the conclusion that ORDA is, in essence, an agency of the State" (see Plath v NY State Olympic Reg'l Dev. Auth, 190

Misc 2d 198 [collecting cases], rev'd on other grounds, Plath v NY State Olympic Reg'l Dev. Auth 304 AD2d 885). Relying upon these cases[1], the trial court in Plath, supra, concluded that ORDA can be considered an agency of the State for purposes of tort litigation and, indeed, that ORDA need not even be named separately from the State as a defendant in such actions (id.).

This Court, cognizant that ORDA may sue and be sued (Public Authorities Laws § 2511, 2622 [besued]; Public Authrities Law § 2611 [sue]; Cagino Affirmation ¶ 11), agrees. In this regard, the Court notes that unlike the Thruway Authority or the Power Authority where judgments are paid from the funds of the authority (see Public Authorities Law § 361-b [Thruway Authority] and Public Authorities Law § 1007[10] [Power Authority]) payment of judgments against ORDA shall be paid "from appropriations for judgments against the state" (Public Authorities Law § 2622[4], emphasis added). Further support for this conclusion can be found in the action of the Legislature in removing ORDA from the statute that enumerated those public authorities which must be served in addition to the attorney general in order to obtain jurisdiction in the Court of Claims (Laws 1999, ch 439, § 1).

Accordingly, Claimant's motion to dismiss the sixth and seventh affirmative defenses is granted. By virtue of the foregoing, the Court does not reach Claimant's alternative requests for relief.

The parties shall appear at a conference on November 6, 2003 at 10:30 a. m. in Chambers, 8th floor Justice Building, Empire State Plaza, Albany, New York.

October 2, 2003
Albany, New York

Judge of the Court of Claims

[1] The cases are Slutzky v Cuomo, 114 AD2d 116, 119 ["The Legislature has 'imbue[d] [ORDA] with such a degree of identity as to be considered an integral part of the State qua State.' " ; Morgan v State of New York, 229 AD2d 737 affd 90 NY2d 471 and Craig v State of New York, 261 AD2d 683, 684, lv denied 94 NY2d 752 [State entitled to workers compensation bar for tort claim by ORDA employee].