New York State Court of Claims

New York State Court of Claims

WASHBURN v. STATE OF NEW YORK, and NEW YORK STATE DEPARTMENT OF TRANSPORTATION, #2005-028-517, Claim No. 109844, Motion No. M-69256


Case Information

WAYNE WASHBURN, as Administrator of the Estate of ELEANOR WASHBURN, Deceased
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:
CONWAY & KIRBY, LLPBY: Andrew W. Kirby, Esq.
Defendant's attorney:
BY: G. Lawrence Dillon, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 18, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Defendant's motion to dismiss the Claim pursuant to CPLR 3211(a)(2) and (7)[1]:

1) Notice of Motion and Supporting Affirmation of Assistant Attorney General G. Lawrence Dillon , filed October 20, 2004, (Dillon Affirmation), with annexed

Exhibits A-C [Exhibit C is the Affidavit of Ernest Olin, II (Olin Affidavit)];

2) Affirmation in Opposition of Andrew W. Kirby, Esq., filed November 15, 2004 with annexed Exhibits;

3) Reply Affirmation of Assistant Attorney General G. Lawrence Dillon (Dillon Reply) filed December 7, 2004

Filed Papers: Claim, filed September 14, 2004.

The instant Claim arises from a collision between an automobile operated by decedent and a train at a grade crossing on Five Mile Line Road in the Town of Lisbon, St. Lawrence County at approximately 9:10 a.m. on June 17, 2003.

Defendant has timely moved by pre-answer motion to dismiss the instant Claim asserting the Claim fails to state a theory of liability upon which the State could be responsible and that the incident occurred on a roadway which was neither "owned, controlled, maintained, nor operated by the State Defendant" (Dillon Affirmation ¶¶ 2-3). In support of the application, Defendant has submitted an affidavit (Olin Affidavit) which Defendant maintains establishes the State exercises no control over the situs of the accident. Claimant has opposed the application asserting the Claim alleges a cause of action sounding in negligence and discovery is necessary to inquire into the matters asserted in the Olin Affidavit (Kirby Affirmation ¶ 5). Claimant has also annexed documents to the opposition papers to which Defendant has objected as being improper (Dillon Reply).

On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). The Court accepts the facts as alleged in the Claim as true, affords the Claimant the benefit of every possible favorable inference, and determines only whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87; Stukuls v State of New York, 42 NY2d 272, 275). In doing so, the Court must ignore the affirmation/affidavit submitted by defendants (Valentino v County of Tompkins, 284 AD2d 898, 899).

Applying the above to the facts as set forth, the Court must necessarily conclude that Claimant has stated a viable claim for negligence against the State of New York and deny the motion premised upon CPLR 3211 (a) (7). To the extent Defendant is, as Claimant posits (Kirby Affirmation ¶ 4), seeking the dismissal based upon documentary evidence - i.e., the Olin Affidavit - the Court finds same is not documentary evidence as envisioned by CPLR 3211(a)(1) (see Webster v State of New York, Ct Cl, Sise, J., Claim No. 106588, UID #2003-028-507, January 30, 2003). The Court also declines Defendant's invitation to treat this application as one for summary judgment (Dillon Affirmation ¶ 3; CPLR 3211[c]) finding it appropriate that Claimant be afforded discovery to ascertain the Defendant's relationship to the at-issue grade crossing. The critical issue of whether the Defendant bears any responsibility for either Five Mile Line Road or the condition of the grade crossing will be resolved at a later point in this litigation (see Employee Network, Inc. v Faircall Corp., 13 AD3d 773, Venditti v Liberty Mut. Ins. Co., 6 AD3d 961). As such, the Court can not conclude that it lacks subject matter jurisdiction on this record.

Since the Court has resolved the motion without resort to the additional papers submitted, it need not address, at this juncture, Defendant's contention premised upon 29 USCA § 409 that the attachments to the Kirby Affirmation are privileged pursuant to that statute. The Court draws the parties attention to the case of Pierce County, Washington v Guillen, 537 US 129 for an analysis of that statute.

By virtue of the foregoing, Defendant's motion is denied in its entirety.

The parties shall appear at a preliminary conference to be held on May 24, 2005 at 12:30 p.m. in Chambers, 207 E. Genesee Street, Utica, New York.

February 18, 2005
Albany, New York

Judge of the Court of Claims

[1] CPLR 3211 (a)(7) and (8) is referenced in the Dillon Affirmation. The Court will only treat the application as noticed, which upon reading the application is appropriate.