New York State Court of Claims

New York State Court of Claims

SELTZER v. THE STATE OF NEW YORK, #2004-030-932, Claim No. 109468, Motion No. M-68836


State's motion to dismiss claim based on allegation that it did not own the subject premises is denied.

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:
Steven K. Mantione, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 15, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on defendant's motion to dismiss the claim: Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition; Reply Affirmation.

According to the filed claim, claimant was injured on March 23, 2004 when, while walking on the sidewalk adjacent to the new Civil Court Building on Sutphin Boulevard in Queens, he tripped and fell over the legs of a bicycle rack that was protruding onto the sidewalk.

Defendant, in lieu of answering the claim, has submitted this motion to dismiss. Although the notice of motion states that dismissal is sought "pursuant to Rule 3211 and/or 3212" of the CPLR, the latter section (summary judgment) is not applicable since issue has not yet been joined. The notice of motion does not indicate what subdivision of CPLR 3211 is allegedly applicable, but the affirmation in support of the motion indicates that it is being made because the court "lacks jurisdiction over the claim."

The basis for the claimed lack of jurisdiction is defendant's assertion that the City of New York, not the State, owns the subject premises and its conclusion, based on that fact, that the court "lacks jurisdiction over the City of New York which owns and maintains 89-17 Sutphin Boulevard."

It is unquestionably true that the Court of Claims has no jurisdiction over the City of New York, and claimant has offered nothing to counter defendant's evidence, which is persuasive, that the City is the owner of the subject premises. Indeed, the claim does not purport to assert jurisdiction over the City of New York, but rather seeks a finding of liability against the State based on the alleged actions of its employees. If defendant could demonstrate that it was not involved in the activity which forms the basis of the claim, it would be entitled to dismissal, not for lack of jurisdiction but rather for failure to state a cause of action against the State.

In any event, defendant admits that the State of New York, which operates a court facility on the premises, has some maintenance responsibility, but it argues that such responsibility is limited to cleaning the interior of the building and making minor repairs. Defendant argues that the subject incident does not arise from such cleaning activity or from minor repairs and that the claim should therefore be dismissed. This argument is misplaced.

According to the claimant, he tripped over a bicycle rack that had been deliberately placed on its side on the sidewalk, by defendant's employees, and was being used as a barricade. Defendant does not address this most salient of allegations – that it was defendant's employees who created the dangerous condition – an allegation that seems plausible to the court since it seems to arise out of the provision of security at the court facility. Accepting claimant's factual allegations as true for the purpose of this motion, the issue is who created the dangerous condition, not who owns the building or who is responsible for interior maintenance. Neither party has offered any evidence on this issue.

Defendant has not established that there is no view of the alleged facts that would entitle the claimant to a finding of liability. Accordingly, the motion is denied.

October 15, 2004
White Plains, New York

Judge of the Court of Claims