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
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