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.