CHIUMENTO v. STATE OF NEW YORK, #2004-018-320, Claim No. 105270, Motion No.
Defendant's motion for summary judgment is granted and the claim is dismissed.
SHEILA CHIUMENTO and RICHARD CHIUMENTO The Court has amended the caption sua sponte to reflect the State of New York as the only proper defendant.
Footnote (claimant name)
STATE OF NEW YORK
Footnote (defendant name)
DIANE L. FITZPATRICK
Sheila Chiumento and Richard ChiumentoPro Se
Attorney General of the State of New York
Sugarman Law Firm, LLPBy: Paul V. Mullin, Esquire
August 9, 2004
See also (multicaptioned
Defendant brings a motion for summary judgment. Claimants have not responded
motion. This motion was adjourned to March 3, 2004, after an Order was granted
relieving Claimants' prior attorneys, Melvin & Melvin, PLLC, of further
representation of Claimants. By that Order, the Court gave Claimants 45 days
to obtain new counsel and until March 3, 2004, to submit a response to
Defendant's summary judgment motion. No other attorney has notified the Court
or filed a notice of appearance on behalf of Claimants, and no opposition to the
motion has been received.
In support of the motion, Defendant has submitted, inter alia, the
verified claim and answer, the verified bill of particulars, a portion of
Claimants' deposition testimonies, and a portion of the deposition testimonies
of Jim and Dawn Arkerson, an affidavit from Peter Cappuccilli, Jr., Director of
the New York State Fair, and an affidavit from Richard Guanciale, Business
Manager for the New York State Fair.
On September 2, 2001, Claimants were attending the New York State Fair. At
approximately 1:00 p.m., while walking through the Center of Progress Building
looking at the various exhibits, Claimant, Richard Chiumento stopped at a booth
where air purification systems were being sold. Claimant, Sheila Chiumento
kept walking, looking at another exhibit. After some time passed, she walked
back to the booth where her husband was talking with a woman, now known as Dawn
Arkerson. Although not really listening to their conversation, Sheila Chiumento
noticed that the woman had a rag in her hand. The vendor, Ms. Arkerson, then
placed the rag under the claimants' noses, first Mr. Chiumento then Mrs.
Chiumento. The rag was placed approximately two or three inches from Mrs.
Chiumento's nose and had a strong ammonia smell. Dawn Arkerson testified,
during her deposition, that it is her usual practice to inform people that she
is spraying ammonia on the paper towel, and that she does not hold it under
people's noses unless they want a closer smell. After Mrs. Chiumento smelled
the rag, she backed away and started coughing. Claimants then proceeded to
leave the building through the door next to a snack bar.
Mrs. Chiumento, who suffers from asthma, was having trouble breathing and the
fresh air did not provide any relief. She used her inhalers, which she carried
with her, but they did not help. Her difficulty breathing continued to get
worse as she and her husband walked around the fairgrounds, so they stopped at
an information booth for directions to the Rural Metro Infirmary
When they arrived at the
infirmary, they were greeted by an emergency medical technician employed by an
ambulance service, Eastern Paramedics, Inc., d/b/a Rural/Metro Medical Services.
Mrs. Chiumento told the technician that she had been exposed to a chemical in
one of the buildings, and that she suffered from asthma but responded well to
Solu-Medrol. After listening to her lungs and taking her vital signs, two
nebulizer treatments were tried but she was still having trouble breathing.
Mrs. Chiumento told the doctor, Timothy Page, M.D., that she responded well to
Solu-Medrol but he ordered cough medicine. Mrs. Chiumento then told her
husband that she needed to go to the hospital. The medical personnel then
gave Mrs. Chiumento some breathing treatments. The doctor then listened to her
lungs for the third time, and arranged for the ambulance to take her to Crouse
Irving Memorial Hospital. At the hospital, Mrs. Chiumento was given a treatment
of Solu-Medrol, but it did not help her at all. A pressure mask was then
placed over her face to force oxygen into her lungs. She was in intensive care
for three days.
The affidavits from Peter Cappuccilli, Jr., Director of the New York State
Fair, and Richard Guanciale, the Business Manager for the New York State Fair
establish that the State entered into a license agreement with Pollution
Solutions, licensees Jim and Dawn Arkerson, for the rental of a ten feet by nine
feet (10' X 9') space in the Center of Progress Building on the New York State
Fairgrounds for the sale of air/water purification systems. No real or personal
property interest was transferred as part of the agreement. The defendant
rented the right to occupy a certain area for the duration of the 2001 New York
State Fair to the Arkersons, on the condition that the licensee not use the
premises for any "unlawful or illegal purpose, or for any purpose in violation
of any federal, state or municipal law, ordinance, government rule, order or
regulation and shall comply with all rules of the licensor." The licensee,
pursuant to the license agreement, was "responsible for all damage, loss and
injury to persons and property due to the activities of the licensee, licensee's
agents and employees" (License Agreement, Exhibit E, paragraph 4). The
Arkersons provided a copy of their tax identification number, certificate of
authority, and a copy of a certificate of insurance to the State.
The State Fair also contracted with Timothy Page, M.D., to perform duties as a
doctor during the 2001 New York State Fair, and with Eastern Paramedics, Inc.,
d/b/a Rural/Metro Medical Services, to provide infirmary and ambulance services
(copies of the contracts are attached to the motion as part of Exhibit E).
The claim asserts that the State was negligent in treating
Sheila Chiumento, for exposure to
chemical agents. Claimants' verified bill of particulars, in addition to
asserting that the medical staff at the State Fair failed to provide appropriate
treatment to Mrs. Chiumento for more than three hours, also states that the
State allowed "leasees [sic] to rent space and approach the public in the Center
of Progress Building without insuring their marketing approach would not present
a danger to someone such as Plaintiff [sic], Sheila Chiumento, who had multiple
allergies," (Exhibit D, Verified Bill of Particulars, item 3, page 2).
Defendant argues, in support of summary judgment, that the State did not owe a
duty to Claimant to protect her from the marketing of a licensee at the New York
State Fair. The State had no notice that Jim and Dawn Arkerson were engaging
in any dangerous behavior, and had no control over their actions or the
marketing of their products. Defendant next argues that the State is not liable
for an independent contractor's negligence; where, as here, there is no duty to
perform or control the work, there is no assumption of a duty, and there is no
special inherent danger in the work to be performed.
Defendant, as the party seeking summary judgment, has the burden to come
forward with proof, in admissible form, to make out a prima facie case showing
its entitlement to judgment as a matter of law (Zuckerman v City of New
York, 49 NY2d 557, 562). "Failure to make such showing requires denial of
the motion, regardless of the sufficiency of the opposing papers," (Winegrad
v New York Univ. Med. Ctr., 64 NY2d 851, 853). Here, Defendant has set
forth sufficient proof, in admissible form, to establish it breached no duty
owed to Claimants as a matter of law.
Liability to Third Parties for Conduct of Arkersons
Claimants' allegations regarding Mrs. Chiumento's exposure to a chemical which
caused her injuries, arise solely out of the State's alleged duty to protect
them from the method of marketing the air/water purification system employed by
the Arkersons. There is no allegation that the State had any affirmative role
in exposing Claimant, Mrs. Chiumento, to the chemical agent, or that her
injuries were caused by any defect in the building or space provided. Any
duty Defendant may owe to Claimants, under the facts as set forth herein, would
require that the State have an obligation to control the conduct of its
"As a general rule, an owner of property has no duty to control the conduct of
a tenant for the benefit of third parties absent knowledge of the need for such
control and an opportunity to exercise it"(see, Aronson v Hyatt International
Corporation, 202 AD2d 153, 154; Cavanaugh v Knights of Columbus Council
4360, 142 AD2d 202, 204 lv denied, 74 NY2d 604; De Agramonte v
City of Mt. Vernon, 112 App Div 291; cf., Pulka v Edelman, 40 NY2d
781). Here no landlord-tenant relationship existed, because no interest in
real property was transferred, rather the Arkersons were licensees, possessing
only the privilege or permission for entry and possession for a specific purpose
(see, Fish v Simpson, 124 Misc 2d 496, 506). Yet, the duty of the State
as licensor to a third party would be analogous (see, De Agramonte v City of
Mt. Vernon, 112 App Div 291).
The undisputed proof establishes that Defendant had no notice of any other
complaints or problems with the marketing techniques employed by the Arkersons,
who had also rented space for the 2000 New York State Fair, and there is no
allegation that the marketing of their products was inherently dangerous.
Defendant did not exericise any control over the conduct of the Arkersons in
marketing their products, and there is nothing to suggest that the State should
have known that there was any need for such control. Moreover, by the
licensing agreement executed by the Director of the New York State Fair and the
Arkersons, the Arkersons were responsible for all damages or injuries arising
out of their activities.
Liability for Medical and Ambulance Services
The New York State Fair contracted with a doctor, Timothy Page, to provide
medical services during the 2001 Fair, and with Eastern Paramedics, Inc., d/b/a
Rural/Metro Medical Services to provide infirmary and ambulance services.
Defendant argues that the medical services provided to Claimant, Mrs. Chiumento,
were provided by independent contractors for which the State has no
The critical factor to determine whether one is an independent contractor or an
employee, for purposes of assessing tort liability, is who has "control of the
method and means by which the work is to be done" (Berger v Dykstra, 203
AD2d 754 lv dismissed 84 NY2d 965). Other factors for consideration include who
provides the tools and equipment, how payment is made, and whether Social
Security and taxes are withheld from such payments (Greene v Osterhoudt,
251 AD2d 786). Although these are typically questions of fact, where the
evidence is undisputed, the issue may be determined as a matter of law
(Greene v Osterhoudt, 251 AD2d at 787).
In the contract with both Dr. Page and Eastern Paramedics, Inc., d/b/a
Rural/Metro Medical Services, as confirmed by the affidavit of Peter
Cappuccilli, Jr., the State had no control over the method or means by which
medical and ambulance services were provided. Both Dr. Page and Eastern
Paramedics, Inc., d/b/a Rural/Metro Medical Services, were to use their own
specialized knowledge to treat Fair patrons who visited the infirmary building
or needed medical services during the Fair. The contract also provided for
payments to be made by a lump sum. Given these undisputed facts, the Court
finds that both Dr. Page and Eastern Paramedics, Inc., d/b/a Rural/Metro Medical
Services, were independent contractors with the State for the 2001 New York
"The general rule is that a party who retains an independent contractor, as
distinguished from a mere employee or servant, is not liable for the independent
contractor's negligent acts," (Kleeman v Rheingold, 81 NY2d 270, 273).
Although there are numerous exceptions to this general rule, none apply to the
undisputed facts herein. Thus, the State is not liable for any negligence of
Dr. Page or Eastern Paramedics, Inc., d/b/a Rural/Metro Medical Services in
providing medical care to Claimant, Sheila Chiumento.
Accordingly, based upon the foregoing, Defendant has established its
entitlement to judgment as a matter of law, the motion is GRANTED, and the claim
August 9, 2004
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
Affidavit of Paul V. Mullin, Esquire, in support, with exhibits
There was no response from the claimants.
Mrs. Chiumento referred to the Rural Metro
Infirmary as the "medic building" in her deposition.
The claim actually says plaintiff.