New York State Court of Claims

New York State Court of Claims

BERTOLINO v. THE STATE OF NEW YORK, and the OLYMPIC REGIONAL DEVELOPMENT AUTHORITY, #2006-028-509, Claim No. 106543, Motion Nos. M-67492, CM-67591


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:
BY: Michael Kurz, Esq.Edward Fassett, Jr., Esq.
Defendant's attorney:
HISCOCK & BARCLAY LLPBY: Mark W. Blanchfield, Esq.
Third-party defendant's attorney:

Signature date:
January 12, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on cross-motions for summary judgment:

1. Notice of Motion and Supporting Affidavit of Mark W. Blanchfield, Esq, counsel for Defendants, with Supporting Affidavits of Debra Pica, Rebecca Dayton, Robert Hammond, together with annexed Exhibits and Memorandum of Law

2. Notice of Cross-Motion and Supporting Affidavit of Edward Fassett, Jr., Esq., counsel for Claimants, with annexed Exhibits, and Memorandum of Law

3. Reply and Answering Affidavit of Mark W. Blanchfield, Esq., with annexed Exhibits and Memorandum of Law

4. Reply Affirmation of Michael Kurz, Esq., with separate Exhibit (Supreme Court motion papers)

5. Letter response of Michael Kurz, Esq.

6. Letter response of Mark W. Blanchfield, Esq.

Filed papers: Claim; Answer

The claim in this action arose on February 18, 2001, at approximately 6:35 p.m., when Claimant Mary Jo Bertolino was injured as she stepped from a flight of wooden exterior stairs onto a landing and allegedly slipped on the landing's ice-covered surface. The accident occurred at the bottom of steps leading from the pool building to the parking lot at the Olympic Jumping Center in Lake Placid, New York. Defendants' liability for Claimant's injuries is premised on its alleged negligence in failing to remove the snow and ice on the landing, providing inadequate lighting in the area, having a defective stair rail, and failing to provide adequate drainage for the runoff of melting snow, failing to construct the stairway with uniform risers, and failure to warn of the danger of the location. The claim was filed with the Clerk of the Court and served on the Attorney General on August 23, 2002 (Blanchfield Affidavit, Exhibit A).

In its answer, Defendants as an affirmative defense alleged untimeliness of the Claim, in that it was served on the Attorney General more than one year and ninety days after the cause of action accrued "in violation of Section 2622 of the Public Authorities Law, Olympic Regional Development Authority."[1] Defendants' motion for summary judgment dismissing the claim is based on this defense and also on allegations that the Court lacks subject matter jurisdiction over the claim. Claimants have crossed moved for summary judgment on the issue of liability in their favor or, in the alternative, for transfer of the Claim to Supreme Court of Essex County.

In response to a notice to admit that was served by Claimants, Defendants acknowledged that the premises of the Olympic Jumping Complex, including the exterior stairs and the landing, was leased by Olympic Regional Development Authority (ORDA) from the Town of North Elba at the time of the accident (id. Exhibits C, D). Pursuant to the lease between ORDA and the Town of North Elba, as Trustee for the Town of North Elba Public Parks and Playgrounds District (Hammond Affidavit, Exhibit A), ORDA assumed control of and responsibility for the maintenance of the property. Section 17 of the Agreement provides, in relevant part, as follows:
ORDA shall become solely responsible and shall pay for any and all expenses and charges of any kind or nature pertaining to the operation, use and maintenance of all facilities being leased hereby as of the day following execution of this agreement.
In a related Supreme Court action commenced by Claimants against the Town of North Elba, the Third Department dismissed the complaint against that defendant because where a property owner relinquishes possession and control and retains no right to reenter to inspect and repair, the owner is no longer liable for defects in the property (Bertolino v Town of North Elba, 16 AD3d 805 (3d Dept 2005), citing to Brady v 5644 Ave. U Assoc., 291 AD2d 523, 524 [2d Dept 2002]).

ORDA was created as a public benefit corporation by the Legislature in 1981 (L 1981, ch 404; Public Authorities Law §§ 2606, 2608 [1]) to, inter alia,"operate, manage and maintain the olympic facilities" in and around the Village of Lake Placid, Essex County (Public Authorities Law § 2606). Initially, tort actions against ORDA were to be maintained in the Supreme Court, as the Legislature conditioned suit upon compliance with General Municipal Law §50-e and did not extend a grant of jurisdiction to this Court (see Pandolph v State of New York, 155 Misc 2d 612, 614 [Ct Cl 1992]).

In 1994, Public Authorities Law § 2622 was amended by the addition of section (4) which granted exclusive jurisdiction on the Court of Claims for "any claim of any person brought hereafter against the authority to recover damages for injuries to property or for personal injury arising out of the operation by the authority" (L 1994, Ch 169, § 93). Subsequently, the Third Department held that this provision extended to the Court of Claims jurisdiction to hear claims against ORDA in situations arising out of ORDA's operation of the Gore Mountain Ski Center or a state-owned Olympic facility (Plath v NY State Olympic Regional Dev. Auth., 304 AD2d 885 [3d Dept 2003]) but that it did not confer jurisdiction to this Court over claims arising at other olympic facilities, such as the Olympic Arena, that are operated by ORDA but owned by the Town of North Elba Public Parks and Playgrounds District (id. see also Public Authorities Law §§2607, 2612).

Defendant therefore argues that if Claimants have an action against ORDA, that action arises solely out of ORDA's control of the premises, not the State's ownership of the property, and thus any lawsuit against ORDA must be maintained in Supreme Court. In addition, Defendant argues, there can be no action against the State of New York exclusively, because it has no direct ownership or management of the site of the injury. On the other hand, Claimants maintain that under the caselaw "in effect" at the time the claim was filed, a suit against ORDA could be maintained in this Court despite the fact that the property on which the injury occurred was owned not by the State but by the Town of North Elba.

The caselaw referenced by Claimants is the original Court of Claims decision in Plath v New York State Olympic Regional Development Authority (190 Misc 2d 198 [Ct Cl 2002]) ("Plath I"). In that decision, it was determined that the "Court of Claims has jurisdiction to hear claims occurring at participating Olympic facilities that are owned by either the State or the Park District." (id. at 202 [emphasis supplied]). As noted above, however, Plath I was reversed by the Third Department (304 AD2d 885) ("Plath II"), which concluded that the 1994 amendment to Public Authorities Law § 2622 placed jurisdiction in the Court of Claims "only in situations specifically arising out of defendant's operation of the Gore Mountain Ski Center or a state-owned Olympic facility."

In essence, therefore, Claimants are asking this Court to ignore the Third Department's ruling on the matter and permit this action to go forward in the Court of Claims. Claimants reason for urging this unusual course of action is evident, and compelling: unless the Court of Claims action is allowed to proceed, there will be no forum in which they can seek to recover damages for the injuries suffered. The events giving rise to this result were summarized by the Third Department in its decision in the related action, (Bertolino v Town of North Elba, 16 AD3d 805, supra). In May 2001, approximately two months after the accident, "plaintiffs [here, Claimants] served a notice of claim on defendant [Town of North Elba], ORDA and the State of New York, captioned in Supreme Court, Essex County, and also served a notice of intention to file a claim in the Court of Claims as to the same three entities" (16 AD3d at 805). A year later, in May 2002, they commenced the Supreme Court action against the Town of North Elba only, and in August 2002, they filed and served the claim against ORDA and the State of New York in this Court, relying on the holding of Plath I. Plath II was decided the following year, in April 2003, and, under its holding, the Court of Claims would not have jurisdiction over ORDA because the facility at which the injury occurred was owned by the Town of North Elba.

Following the Plath II decision, Claimants moved to amend the Supreme Court complaint to add ORDA as a second named defendant in that action. Permission to amend was initially granted by Supreme Court but, in March 2005, that ruling was reversed (Bertolino v Town of North Elba, 16 AD3d 805, supra). One of the arguments presented on that appeal was, in essence, the same as the argument presented here: that the initial choice of forums had been made based on the then-controlling ruling of Plath I. In rejecting that argument, the Third Department stated:
We find this argument lacks merit because the Court of Claims decision, relied on by plaintiffs, recognizes that actions against ORDA, which occur on premises not at Gore Mountain or at state-owned facilities, can still be maintained in Supreme Court as well as in the Court of Claims. Our decision was only that the Court of Claims lacked jurisdiction unless the claim arose out of ORDA's operation of Gore Mountain or a state-owned facility. Moreover, the underlying statute has not changed since its 1994 amendment (see Public Authorities Law § 2622[4] ).
In other words, there was nothing in Plath I that prevented claimants from suing ORDA in Supreme Court, which was ultimately held, in Plath II, to be the only proper forum for an action arising at a non-State-owned facility.

Claimants attempt to distinguish the situation presented here from that which led to the decision in Plath II by pointing out that the litigants in that case were not deprived of an opportunity to present their case in some forum, because they had commenced an action against ORDA in Supreme Court in addition to the action against that same entity commenced in the Court of Claims. That fact, however, was not cited by the Third Department as one of the grounds for its decision, and the Court must question the assertion of Claimants' counsel that the presence of an alternative suit in Supreme Court "was a reason why the Third Department felt it appropriate to dismiss the Court of Claims proceeding" (Kurz Reply Affirmation, ¶ 11). The Third Department's decision indicated no such consideration. Instead, the decision in Plath II was based on elementary principles of statutory construction and the appellate court's conclusion that, by the 1994 amendment to Public Authorities Law § 2622, the Legislature expressly extended the jurisdiction of the Court of Claims against ORDA only if those claims arose out of its operation of the Gore Mountain Ski Center or a state-owned Olympic facility. "[W]e will not, by implication, expand the jurisdiction of the Court of Claims over defendant where the Legislature has clearly and unambiguously delineated its scope." (Plath v New York State Olympic Regional Dev. Auth., 304 AD2d 885, 887)

Despite Claimants urging, this Court has even less standing to act contrary to the expressed will of the Legislature, and, under the well-accepted principles of stare decisis, it has no right to ignore the rulings of the Third Department (see Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664 [2d Dept 1984; McKinney's Cons Laws of NY, Book 1, Statutes § 72[b]).

Claimants assert that if they are not permitted to proceed in this Court it will be because they were victims of a "jurisdictional trap" and that the result would be "antithetical to stated public policy as well as traditional notions of fairness and justice" (Memorandum of Law in support of cross-motion p 5). Although it is true that Plath II was not decided until after the expiration of the one year and 90 day statue of limitations applicable to actions against ORDA in Supreme Court (Public Authorities Law § 2622[2]; see Bertolino v Town of North Elba., 16 AD3d at 807 n 3), the Court does not consider that Claimants were misled into believing that the question of jurisdiction was settled law or that they were lulled into inaction by Plath I.

In Vinciguerra v Jameson (208 AD2d 1136 [3d Dept 1994]), the Third Department reiterated that while a change in law will not be applied to a case that has been finally resolved,

such a change will generally be applied to all cases, such as the instant case, that are still in the normal litigation process (id. at 1138, citing Cutler v Travelers Ins. Co., 159 AD2d 1014 [4th Dept 1990] and Gurnee v Aetna Life & Cas. Co., 55 NY2d 184, 191 [1982], cert. denied 459 US 837, 103 S Ct 83, 74 L Ed 2d 79). The exception to this general rule occurs where there has been "such a sharp break in the continuity of law that its impact will 'wreak more havoc in society than society's interest in stability will tolerate'" when that occurs, a court may direct that the new pronouncement operate only prospectively (Gurnee v Aetna Life & Cas. Co., 55 NY2d at 192, quoting Gager v White, 53 NY2d 475, 483-484 [1981]). Such an exception does not apply here, because the Third Department's ruling in Plath II neither established a new principle of law nor establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression in a ruling that was not clearly foreshadowed (id. at 191).

At the time Claimants' cause of action arose, it was no secret within the bar that several aspects of the 1994 amendment to Public Authorities Law § 2622[4] were unclear. Some of the confusion caused by the amendment was discussed, and decided, the following year in Traina v New York State Olympic Regional Development Authority (165 Misc 2d 870 [Ct Cl 1995] [holding that the provisions of subdivisions [1] and [2], incorporating procedural aspects of the General Municipal Law, do not apply to actions commenced under subdivision [4] which gave jurisdiction to the Court of Claims]).

There was still enough uncertainty however, that the litigants in Plath commenced actions both in Supreme Court (in February 2001) and the Court of Claims (in August 2001) so as to be certain of a forum. That Claimants in this action were equally aware of the uncertainty is evident by the actions they took in May 2001: serving notices of claim captioned in Supreme Court against all three potential defendants (ORDA, Town of North Elba, and State of New York) and simultaneously serving notices of intention captioned in the Court of Claims on the same three defendants. It was not until January 2002 that Plath I was decided, and a notice to appeal that decision was filed immediately, on February 15, 2002. Claimants' action against the Town of North Elba was not commenced until May 2002, and they also had until May 20, 2002, to commence an action against ORDA in Supreme Court (see Bertolino v Town of North Elba, 16 AD3d at 807 n 3). Claimants' intention to commence an action in the Court of Claims[2] would not have in any way prevented them from bringing suit in Supreme Court, nor would commencing a Supreme Court action have precluded them from being able to initiate a lawsuit in this Court.

For the reasons set forth above, the Court concludes that Plath II must control the outcome of these motions and that the Court of Claims does not have jurisdiction to hear the instant action, because it arose on property owned by the Town of North Elba and not by the State of New York. In addition, the Court of Claims does not have the power to transfer any case, much less a case over which it has no jurisdiction, to Supreme Court (NY State Constitution, Article VI, §19; CPLR 325; Maric Mechanical v State of New York, 145 Misc 2d 287 [Ct Cl 1989]).

Defendants' motion for summary judgment dismissing the claim is granted and Claim No. 106543 is dismissed. Claimants' cross-motion for partial summary judgment or to transfer the Claim to Supreme Court of Essex County is denied.

January 12, 2006
Albany, New York

Judge of the Court of Claims

[1] Defendant's answer was rejected by Claimants as untimely. Claimants subsequently accepted service of a new answer from which the jurisdictional defenses were eliminated.(Kurz Reply Affirmation, ¶ 8). Inasmuch as the defense of subject matter jurisdiction cannot be waived and the defense of untimeliness need not be addressed, the Court need not consider the effect of a party's "rejecting" an untimely pleading.
[2] The instant action was not commenced until August 2002.