New York State Court of Claims

New York State Court of Claims



Case Information

DAVID and ANDREA PUSTELL, Natural Parents and Legal Guardians of LISA M. PUSTELL, an Infant Under 14 Years of Age
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:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On April 16, 2003, the following papers were read on motion by Defendants for summary judgment dismissing the claim:
Notice of Motion, Affirmation, Affidavit and Exhibits Annexed

Opposing Affidavits and Exhibits Annexed

Reply Affidavits

Filed Papers: Claim

On June 30, 1996, at approximately 8:00 p.m., Lisa Pustell[1] was walking along the Erie Canal path in the Village of Pittsford, New York, near the State Street Bridge at Schoen Place and State Street. She allegedly stepped into a hole left by a missing bollard and sustained, inter alia, injuries to her right leg.

An action was brought in the Supreme Court, Monroe County, against the Village of Pittsford, and by order dated February 1, 2000 (Exhibit C to the Affidavit in Opposition), Justice Evelyn Frazee dismissed the claim against the Village of Pittsford, noting in part, that: "The VanElst [sic] affidavit establishes that New York State is responsible for the area where the plaintiff's fall occurred, and the proof fails to establish that the Village assumed this responsibility or had any duty to the plaintiff."

A contemporaneous Notice of Intention to file a claim was served on September 10, 1996, and thereafter the instant claim was filed and served alleging negligence by the named Defendants herein. With that background information, the Defendants now seek summary judgment dismissing the claim, contending that the location where Claimant fell was part of the lands which the Village of Pittsford was allowed to occupy and use pursuant to a permit issued by the Defendant New York State Canal Corporation.

Preliminarily, I note that this action has been commenced against three named defendants: the State of New York, the New York State Thruway Authority, and the New York State Canal Corporation. Counsel for all three named Defendants asserts that the State of New York is not a proper party because all jurisdiction over canal lands has been transferred to the Thruway Authority and the Canal Corporation. Claimants do not dispute these contentions, and thus, as to the Defendant State of New York, the motion is granted and the claim is dismissed as to that entity.

The Defendants here contend that the location where Claimant fell was part of the lands that the Village of Pittsford (Pittsford) was "allowed to occupy and use pursuant to a permit issued by the New York State Canal Corporation," which permit purportedly holds Pittsford responsible for all property repairs, improvements and maintenance. The permit in question (C42539 - Exhibit B to the Manns affidavit in support of the motion) contains: (1) the property description ("Irregular linear parcel improved with transient dock facility, pavilion, ret. wall, benches, bollards, walkway and other amenities"); (2) the property location ("North side of Canal between Main St. and State St." [Schoen Place]), and inter alia, (3) recites the canal station numbering as "Cl Sta. 2223+00 - 2227+00±." In support of the motion, Defendants proffer the affidavit of Richard P. Manns, a civil engineer employed by the Canal Corporation, whose responsibilities included the evaluation and processing of permits issued by the Canal Corporation during the period in question. He avers that after reviewing certain depositions, photographs, etc., he made a site visit to the location of the accident, and found it to be located on "an improved walkway adjacent to, and just north of, the canal between the Main Street bridge and the State Street bridge" in Pittsford. He also reviewed the permit in question and opines that the location of the accident is within the area of the permit.

However, he also notes the canal station numbering on the permit was "in error," and, declares that the correct canal station numbering for the permit area is 2213+98 to 2228+65. Needless to say, if the canal station numbers on the permit are correct, the location of Claimant's injury falls outside the permit's boundaries, theoretically exposing the Defendants to liability here. However, if Manns' "altered" canal stations are utilized, sure enough, then the accident location falls within the permit's confines, and Pittsford would appear to be the municipal entity putatively answerable in damages. This contention, of course, is the converse of the finding in Supreme Court.

In opposing the motion, Claimants urge a finding that the Defendants are responsible for the location, or that there is a material question of fact that precludes summary judgment. It must be noted that depositions were taken regarding this accident in which the defendants in both actions participated.[2] Claimants supply some of the underlying papers before Supreme Court, notably the affidavit of William VanAlst, an engineer retained by Pittsford as an engineering consultant (Exhibit B to the opposing papers).[3] The VanAlst affidavit avers that the location of the accident falls inside the parameters of the "Jurisdiction of Maintenance" drawing provided to "Pittsford by the State of New York on or about August 25, 1985 under Contract D250667." VanAlst avers that the location of the fall occurs on an area he identifies as the "Trailway", which, according to the Jurisdiction of Maintenance Table, assigns responsibility to the State of New York. That affidavit was submitted to Supreme Court, and was relied upon by Justice Frazee in dismissing that action. Lest there be any confusion, it does not necessarily follow, as Claimants' counsel suggests, that merely because VanAlst averred under oath that Pittsford was not responsible, that the Defendants here are responsible (see my discussion with respect to the actions in Gorea, infra). Indeed, that is an ultimate question for the Court to decide.

Defendants demur, but Claimants urge that there is no indication that the Jurisdiction of Maintenance Table was not in effect at the time of the accident. Furthermore, Claimants challenge that part of the Manns affidavit submitted in support of this motion wherein Manns used the "permit's description of lands permitted to the Village" - "Irregular linear parcel improved with transient dock facility, pavilion, ret. wall, benches, bollards, walkway and other amenities" - to determine the location of the accident. Claimants contend that this is an imprecise description, and further observe that the articulated purpose of the permit is the "temporary use & maintenance of a public waterfront area and transient docking facility," and that it is a new permit, with "Permits to moor tour boats within the permit area [to] be issued by the Canal Corp. with ... written permission from the Vil. of Pittsford." Claimants argue that the area of the fall was at a part of the canal "not suitable for a transient docking facility for tour boats" and thus concludes that the permit does not include the area of the fall, urging that the Jurisdiction of Maintenance Table may be the more appropriate document to review to ascertain who had maintenance responsibility for the site of the accident.

Claimants also challenge Manns' correction to the putatively erroneous canal stations recited in the permit. The deposition of Frank E. Langdon (Exhibit D to Claimants' responsive papers), a Canal Maintenance Supervisor No. 1 at the time of the accident, describes the 400-foot distance (2223+00 - 2227+00±) covered by the canal stations listed in the permit. Claimants argue, persuasively, that Manns' averment in his affidavit that "by using maps and records in [his] office" the correct canal stationing is 2213+98 to 2228+65, the center lines of the Main Street and State Street bridges, relies upon unspecified and unoffered maps and records. This proffered "correction", which could be accurate, is nonetheless gratuitous and self-serving, because it is offered unilaterally. Claimants suggest that the written canal station boundaries are more consistent with the stated purpose of the permit.

Furthermore, David Pustell, the father of Lisa Pustell, as Exhibit A to his affidavit, supplies a sketch of the area purportedly made by affiant Manns, dated May 7, 1999, a sketch utilized at the Langdon deposition, and, while it was made some three years after the accident, depicts the canal station of the accident at 2215+00, a location which puts the accident site outside the canal stations listed on the permit, and hence, not within the area noted in the permit to be the responsibility of Pittsford, ergo, an area for which the Defendants presumably bear responsibility for maintenance.[4]

In reply, Richard Manns notes that the VanAlst affidavit fails to acknowledge awareness of the permit. Interestingly, while the permit was signed on May 15, 1996 and approved on June 4, 1996, it does not seem to have an effective date, although it does indicate that the fee shall be waived beginning May 1, 1996. Suffice it to say, the accident in question and the date of the permit are closely proximate in time. Indeed, the VanAlst affidavit can be read as expressing a negative, to wit, that he was not aware of any changes from the 1985 contract. Manns then reasserts that the permit's reference to canal stations is an obvious error, and clearly "is unfounded and contrary to the plain terms of the permit and the parties intention" (emphasis added).

What gives me pause, and what supports the conclusion that there are unresolved material questions of fact, is that the Defendants present only their version of the intention of the parties. Quite clearly the Village of Pittsford did not so readily acquiesce in intending to assume maintenance responsibility for the location of this accident, since it successfully argued the opposite in Supreme Court, asserting that it was the State's responsibility. Perhaps the Defendants here could have persuaded me had they presented the affidavit of someone from the Village of Pittsford who could swear under oath as to its intentions. But they did not, and given the successful defense raised by representations made under oath in Supreme Court, it would appear that the Village of Pittsford has, by implication, declared what its intent was, an intention contrary to the representations made here by the Defendants.

Indeed, this situation is reminiscent of a similar dichotomy faced by the Appellate Division, Fourth Department. In Gorea v Glover (249 AD2d 887), the Fourth Department affirmed dismissal of an action against the decedent's estate and a public employee union for damages associated with an automobile accident, where the decedent (Glover) was a New York State employee who was also a union officer and was involved in an accident with a tractor trailer operated by one Gorea. Glover was traveling in a rental car to attend a union meeting and was reimbursed by the union for travel expenses. The Appellate Division found that there was no evidence of an employer-employee or principal-agent relationship between the union and decedent, who was a union officer whose salary was paid by the State while he attended union meetings. The fact that decedent was reimbursed for travel expenses by the union did not make him a union employee and he was not paid a salary by the union.

Gorea also brought an action against the State of New York as Glover's employer, and the Court of Claims' denial of the State's motion for summary judgment was reversed (Gorea v State of New York, 286 AD2d 951). The Fourth Department held that the decedent was acting solely in furtherance of his union duties and that his decision to travel to the union meeting was nothing more than a personal decision over which defendant had no control. Thus, Gorea had no remedy against either the State of New York or the union, an apparently dichotomous result.

Such an unpalatable result is of course possible here, but the proposed "alteration" of the permit should not be accepted in the absence of cross-examination of the one who proffers the alteration. I am perplexed by the "who me?" defenses raised in both jurisdictions, with fingers pointing at the other municipal entities (cf. Dominy v State of New York, Ct Cl, #2003-013-506 [Claim No. 96580], Sept. 20, 2003, Patti, J [appeal pending]).[5] Query: is not some municipal entity responsible for maintenance of that area where the missing bollard was located, and then possibly liable for some or all of Claimant's injuries? I do not presume any liability for the missing bollard, but merely whether these Defendants had maintenance responsibility for that location.

Another ground for dismissal is Canal Law §100 which provides that "No liability of any kind shall attach to or rest upon the state, including the authority, for any damage on account of the granting or revocation of any permit."[6] I find, as Claimants argue, that the action herein is unrelated to the grant or revocation of the permit, but rather for negligence. Moreover, if the location of the accident is outside the parameters of the permit, then Section 100 would be inapplicable. As such, this part of Defendants' motion is denied.

Thus, a factual determination, inter alia, of whether the canal stations noted on the permit are erroneous or not, and what areas the parties to the permit intended to be covered by the permit must be ascertained after a trial. Fairness requires that Claimants get a chance to argue the merits of their case. The Defendant's motion for summary judgment is denied, except as noted above.

February 23, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1] For ease of reference, the term Claimant shall mean Lisa Pustell, unless otherwise specified.
  2. [2] While Defendants contend that the motion is not opposed with the affidavit of someone with personal knowledge, I note that Claimants have supplied affidavits and sworn depositions utilized in the Supreme Court action, as well as the affidavit of Claimant's father, David Pustell.
  3. [3] I do note that Defendants' counsel affirms that he was not aware of either the VanAlst affidavit or the motion proceedings in the Supreme Court action against Pittsford at the time that they were made. The Defendants' involvement appears to have been limited to participation in certain depositions.
  4. [4] This does not presume liability for the missing bollard, but is merely part of an attempt to ascertain which entity had maintenance responsibility for that location.
  5. [5]Decisions and selected orders of the Court of Claims are available via the Internet at
  6. [6] This statute was amended by L 2001, ch 335, §55, eff. Dec. 18, 2001, substituting the term "corporation" for "authority." While the difference is of no consequence, the statute above reflects its language at the time of the incident herein.