New York State Court of Claims

New York State Court of Claims

VOLPE v. THE STATE OF NEW YORK, #2004-030-937, Claim No. 109602, Motion No. M-68987


Synopsis



Case Information

UID:
2004-030-937
Claimant(s):
JOSEPH VOLPE and MARIA VOLPE
Claimant short name:
VOLPE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109602
Motion number(s):
M-68987
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
Segan, Nemerov & Singer, P.C.by Jeffrey A. Nemerov, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 25, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court read and considered the following papers on defendant's motion to dismiss the claim pursuant to CPLR 3211 and/or 3212: Notice of Motion, Affirmation and Exhibits; Affidavit in Opposition.

Claimant Joseph Volpe alleges that he was injured in a construction accident at the Supreme Court, Queens County on July 15, 2002. The claim seeks to impose liability on the State of New York, pursuant to the Labor Law, as the alleged owner of the premises and contractor with respect to the construction project in question.

In support of the motion to dismiss, defendant argues that it does not own the courthouse in question, and the proof submitted in support of the motion, including public records available on the city's web page, supports that assertion. Such records also indicate that the project was part of a court construction program managed by the Dormitory Authority of the State of New York (DASNY).

In opposition to the motion, claimants argue that the "mere statement" of the Assistant Attorney General is not sufficient to find that the city, not the state, is the owner of the premises, and that only a certified copy of the deed would suffice for that purpose. All of the documentary material submitted by defendant, which was produced by the city and DASNY, indicates that the project was a joint city/DASNY project and that the city is the owner of the premises. Claimants have not produced any evidence to indicate a scintilla of doubt as to those two conclusions or any support for their contention that, under these circumstances, it is incumbent upon the state to produce a certified copy of a deed to premises it does not own.

The pendency of an action in Supreme Court against DASNY and the city only serves to support defendant's contentions on this motion, notwithstanding the city's alleged denial of ownership in that action.

Accordingly, the motion is granted and the claim dismissed for failure to state a cause of action against the State of New York.


October 25, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims