New York State Court of Claims

New York State Court of Claims

ROSENDALE v. THE STATE OF NEW YORK, #2005-030-504, Claim No. 110043, Motion No. M-69395


Case Information

DONALD P. ROSENDALE The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
January 28, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 4 were read and considered on Defendant's motion

to dismiss brought pursuant to Civil Practice Law and Rules §3211(a)(8):

1,2 Notice of Motion, Affirmation by Mary B. Kavaney, Assistant Attorney General and attached exhibit

  1. Affidavit by Donald P. Rosendale, Claimant and attachments
  1. Filed Papers: Claim
After carefully reviewing the papers submitted and the applicable law the motion is disposed of as follows:

Donald P. Rosendale, the Claimant herein, alleges in Claim number 110043 that the New York State Department of Transportation (hereafter the DOT) - Defendant's agents - negligently failed to supervise a bridge reconstruction project by failing to assure that its contractor followed applicable regulations resulting in damage to Claimant's real property and personal injury. Specifically, Claimant alleges that Harrison and Borrowes Bridge Construction Company - the contractor working on the project - failed to adhere to DOT rule §619.3.01, resulting in a cloud of toxic silica dust descending on Claimant's property, destroying his in-ground pool, and giving Claimant respiratory problems. He asserts that the claim accrued on August 4, 2004 through October 14, 2004 and "may be ongoing", on Route 44 in front of Claimant's home at 4848 Route 44, Amenia, New York. He asks for damages in the amount of $26,200.00.

The Claim was personally served on an Assistant Attorney General on November 1, 2004, and filed in the Office of the Chief Clerk of the Court of Claims on the same date.

Civil Practice Law and Rules §3211(a)(8) - the statutory provision referred to by Defendant as authority for this motion - provides in pertinent part that "a party may move for judgment dismissing one or more cause of action asserted against him on the ground that: . . . the court has not jurisdiction of the person of the defendant . . . " The Defendant does not indicate how this statutory provision relates to the motion.

In her Affirmation in support of the Defendant's Pre-Answer motion, the Assistant Attorney General writes that in his claim the Claimant has not indicated the relationship between the contractor and the DOT, has not indicated how Claimant "received respiratory problems as a result of working on the project," and that the Claimant has not attached any "paperwork to substantiate the fact that he worked on the job." [Affirmation, ¶4]. She further writes that if the DOT "had any supervisory responsibilities over the contractor, the claimant should have attached some documentary proof to support this claim. In addition claimant has not indicated how alleged negligent acts by the contractor actually resulted in harm to the claimant." [Ibid ¶5]. Citing to Chung v State of New York, 122 Misc 2d 676 (Ct Cl 1984), the Assistant Attorney General argues that ". . . claimant is under the burden of adequately advising the defendant of the negligent activities that have been committed on the part of the State of New York . . . [and that Claimant] has utterly failed to do that in any portion of this claim and wherefore, the matter should be dismissed." [Affirmation, ¶ 6].

Chung v State of New York, supra, involved an example of the distinction between a so-called governmental versus proprietary function on the part of the State of New York. The Court found that the Claimant had no private cause of action in damages against the State when Claimant had sustained property damage to his car after an automobile accident, and claimed that because the State had been negligent in failing to correctly register the owner of the car that struck claimant - preventing claimant from seeking redress against the owner- this "negligence" mandated recovery. Concluding that the registration of automobiles, and the methodology for such registration, is purely a governmental, discretionary function, the Court reiterated that the State had not waived its sovereign immunity to suit relative to such discretionary acts and dismissed the claim. The Court also mentioned that no special duty had been assumed with respect to that Claimant, and that any State action was not a proximate cause of Claimant's injury, in that any " . . . misstatements resulting in damage to . . . [Claimant] were made by the registrant of the automobile that struck claimant's vehicle, and not by an employee of defendant." [Chung v State of New York, supra, at 678-679].

Initially, it appears that Defendant is under the mistaken impression that Claimant has asserted a claim premised on his employment at a construction site. It is also unclear how the citation to a case involving discretionary State action relates to a motion to dismiss for a lack of personal jurisdiction over the defendant. The Court should not have to guess what a party intended by citation to statutes or cases, and is thus constrained to determine what arguments to construe by these references.

Accordingly, and without additional discussion of the valid points raised in Claimant's opposing papers - premised on some of the possible arguments Defendant may have intended - the Defendant's motion to dismiss is in all respects denied.

January 28, 2005
White Plains, New York

Judge of the Court of Claims