New York State Court of Claims

New York State Court of Claims

GIL v. THE STATE OF NEW YORK, #2004-016-077, Claim No. 109517, Motion No. M-68826


Claim alleging that claimant was electrocuted at the "Sunnyside Train Yard" was dismissed on the ground that the State did not own, operate or maintain the accident site.

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):

Alan C. Marin
Claimant's attorney:
Tonino Sacco, P.C.By: Luigi Brandimarte, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
December 7, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is defendant's motion to dismiss the claim of Plutarco Gil. In his claim, Mr. Gil alleges that on September 8, 2001, he was caused to come into contact with "active electrical wires/instrumentalities," causing him to suffer injuries including, inter alia, electrical burns with permanent scarring to 80% to 90% of his body. The incident took place "at a point at or near the mouth of the line four (4) portal tunnel connecting the ‘Sunnyside Train Yard' to the Pennsylvania Station, opposite the easternmost area of the Hunterspoint Avenue, Long Island Railroad platform, said Claimant gaining access by and through the property contiguous, adjoining and adjacent to the ‘Sunnyside Train Yard' from Davis Street leading up to said mouth of line four (4) portal tunnel." Claim, ¶¶5, 6 and 12. The basis for defendant's motion is that the State of New York does not own the site of the accident. In support of its motion, defendant submits as exhibit B to its moving papers the affidavit of Anthony Greene (the "Greene Aff."), Regional Property Manager in the New York City Regional Office of the New York State Department of Transportation (the "DOT").

Greene states that he reviewed the records of the DOT with regard to the accident site and found the following:
1) There are no "as built plans" for the accident site; according to Greene, if the DOT designs, constructs or reconstructs an arterial roadway in the City of New York, "as built" plans will be on file with the DOT.
2) The State has no maintenance records for the site and "[b]ased upon the absence of any maintenance records, I can affirmatively assert that the DOT does not maintain and control the [accident site]." Greene Aff., ¶6.
3) "The [DOT] Construction Unit keeps a [database] of all the DOT construction projects, whether designed in house by the DOT Design Unit or designed by an outside consultant for the DOT. This [database] has all construction projects designed and completed by the DOT from 1980 to the present on the "built" and "unbuilt" arterial roadways . . . that run through the City of New York . . . With respect to the subject situs . . . my search of the Construction Unit's records reveals that the DOT did not perform any work in the vicinity of the accident . . . Based on the absence of any evidence of the DOT's ownership, maintenance, construction and/or control of Sunnyside Train Yard, I can assert that there is no DOT involvement with the location in question and the happening of this accident." Greene Aff., ¶¶7-10.

Greene further asserts that the Sunnyside Train Yard, Block 72, Lot 1 falls under the jurisdiction of the Metropolitan Transit Authority ("MTA") and/or Long Island Railroad ("LIRR"), citing the following documents:
1) Exhibit B to the Greene Aff. contains a September 27, 2001 letter to him from the president of the New York & Atlantic Railway which states in relevant part that "in the past few months the New York & Atlantic Railway gave up over half of the Jackson Avenue Rail Yard to the Long Island Rail Road's East Side Access Project. All of the property south of the telephone line . . . reverted back to the control of the Metropolitan Transit Authority/Long Island Rail Road."
2) Also contained in exhibit B to the Greene Aff. is an October 3, 2001 letter from the New York State DOT to the MTA pointing out that the New York & Atlantic Railway has informed the DOT that Block 72, Lot 1 "has recently been transferred to MTA/LIRR [referencing the September 27, 2001 letter] . . . NYSDOT is interested in leasing a portion of this property to construct and operate a [compressed natural gas] fueling facility."
3) In an October 16, 2001 letter from the MTA's Real Estate Manager to the DOT (in exhibit C to the Greene Aff.), the response to the DOT's request to lease a portion of the site is that "[a] portion of the premises was recently acquired by MTA as part of the East Side Access Program. As such, this location is not available for use as a natural gas refueling facility . . . by the State of New York [DOT]."

Defendant also annexes to its papers a copy of an August 1, 2002 easement agreement between the LIRR and the New York City Transit Authority, as well as a 1966 lease indicating that the owner is the LIRR. See exhibits C and D to defendant's moving papers.
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In opposition to this motion, claimant argues that he gained access to the Train Yard "by and through the property contiguous, adjoining and adjacent" to it, so that even if the State does not own the site, it could be liable on the theory that the owner of adjacent land owes a duty to exercise reasonable care in the maintenance of its property to prevent foreseeable injury that might occur on the adjoining property. In that regard, the claim provides no particulars as to how the adjoining land has anything to do with the accident and is thus not compliant with the particularity requirements of §11 of the Court of Claims Act, which are jurisdictional in nature. See, e.g., Lepkowski v State of New York, 1 NY3d 201, 207, 770 NYS2d 696, 700 (2003).

Also unpersuasive is claimant's argument that the State owns the property because of the conclusion in the Greene Aff. that the State is the property owner (although Greene continues that the site falls under the jurisdiction of the MTA or LIRR). References generally may be made to the "State," where the more precise reference would be to the MTA, a majority of whose members are appointed by the Governor. But for the jurisdictional purposes of the Court of Claims Act, neither the Metropolitan Transit Authority nor the Long Island Railroad[1] may be sued in this Court. See, e.g., Foley v MTA, Ct Cl dated April 29, 2004 (unreported, claim no. 108955, motion no. M-68232, Marin, J., UID #2004-016-020[2]); Fantauzzi v State of New York, Ct Cl filed January 21, 1999 (unreported, claim no. 98771, motion no. M-58078, Nadel, J.). See also 1999 McKinney's Session Laws, pp. 1847 and 1850.

Similarly, claimant does not explain how the highlighted text in the tax map entry which is exhibit A to the claim places the property within the jurisdictional ambit of the Court of Claims Act.

In sum, I find that this Court lacks jurisdiction over the claim of Plutarco Gil. For the foregoing reasons, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-68826 be granted and claim no. 109517 be dismissed.

December 7, 2004
New York, New York

Judge of the Court of Claims

  1. [1]The Long Island Railroad is a subsidiary of the Metropolitan Transit Authority. See, e.g., Fantauzzi, infra.
  1. [2]This and other decisions of the Court of Claims may be found on the Court's website:
  2. [3]The following were reviewed: defendant's notice of motion with affirmation in support and exhibits A through E; claimant's affirmation in opposition; and defendant's reply affirmation with exhibits A and B.