New York State Court of Claims

New York State Court of Claims

ALEXANDER v. THE STATE OF NEW YORK, #2005-030-916, Claim No. 109571, Motion Nos. M-69375, CM-68935


Case Information

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:
Victor Alexander, pro se
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Ellen Matowik, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 1, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on claimant's motion for a subpoena duces tecum and defendant's cross-motion for an order dismissing the claim: Notice of Motion, Affidavit and Exhibits; Defendant's Affirmation in Opposition; Notice of Cross-Motion, Affirmation and Exhibits; Claimant's "Answer" (i.e., opposition to cross-motion) and Exhibits; Claimant's "Letter Motion" (i.e., response to court's interim decision and order); Defendant's Affirmation in Reply.

In a previous decision and order, dated December 23, 2004, the court denied claimant's motion for a subpoena duces tecum and converted defendant's motion to dismiss to a motion for summary judgment pursuant to CPLR 3211(c). The court invited further submissions from the parties on the question of whether summary judgment should be granted on the ground of lack of merit to the claim.

The claim, which was filed after the court granted claimant's motion for permission to late file (Court of Claims Act §10[6]) alleges that claimant was exposed to toxic substances while employed hauling away the remains of the World Trade Center by tugboat after the September 11, 2001 terrorist attack.

In granting permission to late file, the court wrote:
While it is undoubtedly true that the State of New York cannot be held liable for the actions of the City of New York or the Port Authority of New York and New Jersey, claimant alleges in his notice of intention, and again in his "answer" to defendant's affirmation in opposition, that the State of New York was a party to the contract which gave rise to his employment hauling the allegedly toxic debris. Defendant does not refute this allegation and it is therefore, for the purpose of this motion, accepted as true (Calzada v State of New York, 121 AD2d 988). Based on the foregoing, the court will exercise its discretion and allow the claim to proceed. Such result, however, does not preclude eventual dismissal of the claim should defendant submit probative evidence that refutes claimant's contention that the State of New York was a party to the contract upon which claimant's allegation of State involvement is based. (Decision and Order filed June 22, 2004, M-67995.)
Subsequent to the conversion of defendant's dismissal motion into one seeking summary judgment, both parties submitted argument on the question of whether there is any merit to the claim. In his submission, claimant has abandoned the contention that the State of New York was a party to the subject contract, instead arguing that the "destruction of the World Trade Center happened in the city of New York, in the State of New York, and the World Trade Center which is owned by the Port Authority is in fact considered a state municipality and agency, rendering The State of New York liable for my injuries" (Claimant's "Letter Motion dated January 2, 2005, par 1).

Defendant has submitted an affidavit from John A. Agostino, the Emergency Program Grants Manager with the New York State Emergency Management Office (SEMO). Mr. Agostino advises that the President declared a Federal Major Disaster after September 11, 2001 and the federal government determined that all reimbursable costs would be 100% federally funded. The role of SEMO was to make sure that all documentation was in order so that the federal funds could be transmitted to the proper parties. Mr. Agostino further advises that the State of New York was not a party to any contracts with tugboat companies for the towing of debris and that the contracting party was in fact the City of New York. Thus, the premise upon which claimant's late filing motion was granted is now shown to be untrue.

Claimant's contention is, essentially, that the State of New York is liable for the torts of the City of New York and the Port Authority: "The State of New York created a Master/Servant and Principal/Agent relationship [with] the City of New York * * * S.E.M.O. acted on behalf of the State, (Principal) with the City of New York acting as it's agent by contracting the tugboat industry to remove the toxic debris of the WTC * * * Although the Port Authority owned the WTC., The Port Authority is an arm and agency of the State" (Claimant's "Answer" dated August 14, 2004, p 2). Claimant is incorrect.

As noted in the court's original decision granting permission to late file, the State of New York, the City of New York and the Port Authority are three distinct legal entities. Actions against the state are brought in the Court of Claims pursuant to the Court of Claims Act. Actions against the city are brought in supreme court, or possibly a lower court with jurisdiction, pursuant to the General Municipal Law. Actions against the Port Authority are also brought in supreme court pursuant to the General Municipal Law (see Unconsolidated Laws §§ 7101 et. seq.). The fact that SEMO, a state agency, participated in the transmission of federal funds does not render the state liable for any alleged torts committed by the city or the Port Authority in connection with the handling of the toxic debris and does not render the city or the Port Authority the agent of the state with respect to these events. Simply stated, the Court of Claims has no jurisdiction over the City of New York or the Port Authority, and the State of New York has no vicarious liability for the alleged wrongdoing of such entities.

The decision In re World Trade Center Disaster Site Litigation (270 F Supp 2d 357 [SDNY 2003]), cited by claimant, in fact demonstrates the fallacy of his arguments. That decision involved actions brought by workers allegedly injured by exposure to toxic substances while removing the WTC debris. All of the actions at issue therein were brought in supreme court against the City of New York and the Port Authority and were removed by the defendants to federal court. At issue was whether such removal was proper; i.e., whether the actions should be heard in federal court or in state supreme court. The decision is instructive on the proper forum for such litigation.

For the foregoing reasons, defendant's motion is granted and the claim is dismissed.

June 1, 2005
White Plains, New York

Judge of the Court of Claims