New York State Court of Claims

New York State Court of Claims

WALDSTREICHER v. THE STATE OF NEW YORK, #2006-030-502, Claim No. 109367, Motion Nos. M-70819, CM-70885


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

Signature date:
January 9, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 9 were read and considered on Defendant's motion

for summary judgment and Claimant's cross-motion for an Order amending the Bill of


1,2 Notice of Motion; Affirmation in Support by Leslie A. Stroth, Assistant Attorney General and attached exhibits

3-5 Notice of Cross-Motion; Affidavit of Merit by Elliot Waldstreicher, Claimant; Affirmation by John J. Howley, attorney for Claimant

  1. Defendant's Reply to Claimant's Affirmation in Opposition to Defendant's Summary Judgment Motion and Affirmation in Opposition to Claimant's motion to amend Bill of Particulars by Leslie A. Stroth, Assistant Attorney General
7-9 Filed Papers: Claim, Answer, Premises Bill of Particulars Claimant alleges in his claim that on April 28, 2004 he fell in a hallway on the second floor of the Queens County Supreme Court Courthouse at 88-11 Sutphin Boulevard, Jamaica, New York, a building "maintained owned and controlled by the State." [Claim No. 109367, ¶ ¶ 2 and 6]. Board-like material inexpertly taped together and taped to the underlying marble floor as a covering during ongoing construction had become loose - and had been "for days" - causing him to trip and fall on his face. [Ibid. ¶ 2]. In its Answer, in addition to general denials, the Defendant asserts six affirmative defenses, two of which are pertinent here. Defendant indicates in its sixth affirmative defense[1] that the State of New York does not own the situs of the accident alleged in the Claim, and indicates in its fourth affirmative defense that the Dormitory Authority of the State of New York (hereafter DASNY) entered into an agreement with the City of New York for construction work at the location described.

Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

In a motion to dismiss a claim for failure to state a cause of action the movant is held to have conceded the truth of every fact alleged by the Claimant for purposes of the motion. Civil Practice Law and Rules §3211(a)(7). Determination of the motion, generally, does not rest upon resolution of the ultimate facts, but rather on whether those facts asserted make out a claim.

Thomas J. Lotito, Coordinator of Court Facilities Management for the New York State of Office of Court Administration Unified Court System, indicates that his responsibilities include coordination of court facilities for the State of New York with the City of New York. [Affirmation in Support, Exhibit C]. Mr. Lotito states that the State of New York does not own, operate or maintain the Queens County Supreme Court Building where Claimant's fall occurred, and confirms that it is the City of New York that owns, operates and maintains the premises. [Id.]. Throughout the State of New York, he notes, counties and cities are required to furnish and maintain court facilities for the use of New York State trial courts. [Id.]. His understanding with respect to the present case is that DASNY was "engaged" in a project at the building on the date of Claimant's fall, managing the project as "part of New York City's Capital Plan to improve court facilities." [Id.].

The "Aided Report" completed at the time of the accident confirms that Claimant's trip and fall occurred when he "tripped over construction sheets taped to the floor . . . " [Affirmation in Support, Exhibit D]. Additionally, Claimant has sued the City of New York in Supreme Court, the Assistant Attorney General avers, because he is "fully aware of the City's involvement and any construction contracts it had entered into at the Queens County Supreme Courthouse

. . . " [Ibid. ¶ 11].

It has generally been held that when the enabling legislation for a public authority such as DASNY does not confer jurisdiction to the Court of Claims, lawsuits against those entities belong in court of general jurisdiction. See e.g. Gembala v Audobon Association, Inc., 97 AD2d 345, 346 (4th Dept 1983); Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978); Gardner v State of New York, 62 Misc 2d 278 (Ct Cl 1970). Any action against DASNY would have to be commenced in Supreme Court since the Court of Claims does not have subject matter jurisdiction to hear claims against this separate entity. Court of Claims Act §9; Public Authorities Law §§1677, 1691(1); 2982; General Municipal Law §50-e.

In addition to opposing Defendant's application, Claimant has made a cross-motion for an Order allowing him to amend his bill of particulars to include additional assertions to the effect that the State was in possession and control of the hallway, and failed to keep the area in a reasonably safe condition, permitted a contractor to "lay a dangerous path," failed to inspect the path, failed to tell the contractor to correct it, failed to warn the public about using the only way to the open Court rooms, and kept Court rooms open on the North side of the hallway when the only means of ingress was crossing the dangerous obstacle the State of New York permitted the contractor to erect. [Affirmation by John J. Howley, Exhibit A]. Claimant's counsel states that "[t]he entire building is for the Courts of New York . . . [a]nyone entering is under the scrutiny of Supreme Court's court officers and may be searched . . .", and then refers to a portion of attached pattern jury instructions concerning the owner or possessor of a building's duty to use reasonable care in keeping the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable. [Affirmation by John J. Howley, Page 2 and Exhibit D].

In Claimant's Affidavit of Merit he describes the happening of the accident, indicating that in order to reach the second floor courtroom in which a lawsuit to which he was a party was being tried he had to go through metal detectors operated by Court officers on the first floor, go upstairs, and then cross the boards creating the path to the courtroom itself. When he returned from the first floor men's room on his way to the courtroom - the third time he would be crossing the path that day - he "tripped on the raised edge of the path laid across the floor . . ." [Affidavit of Merit, Page 3].

In Defendant's Reply the Assistant Attorney General notes, and this Court agrees, that the Claimant's opposition papers do not dispute the critical elements of Defendant's motion, to the effect that the State of New York does not own, operate or maintain the courthouse where Claimant fell. [Defendant's Reply Affirmation, ¶ 9]. The recitation of the mechanics of the accident - including references to having been searched by State personnel, and the route Claimant took to get into the courtroom - does not address this status and does not create material triable issues of fact. No independent nexus to State involvement is created simply by asserting that State employees searched him when he came in the courthouse, and were present when he took the route to the courtroom.

There has been no contradiction of Defendant's showing through a sworn affidavit that it is the City of New York who owns the property, and that the only State entity arguably having involvement would be DASNY, an entity that may not be sued in the Court of Claims. Gardner v State of New York, supra. Indeed, the pendency of an action in Supreme Court against DASNY and the City of New York also tends to support these determinative facts. Parenthetically, this is not a situation where the State obligations to clean and make minor repairs remaining under Judiciary Law §39-b are implicated. See 22 NYCRR Part 34; Gay v State of New York, UID#2000-016-108, Claim No. 102255, Motion Nos. M-61661, CM-62932, unreported opinion (Marin, J., January 3, 2001); Favia v State of New York, UID#2003-016-030, Claim No. None, Motion No. M-66365, unreported opinion (Marin, J., April 10, 2003).

Defendant's papers establish without contradiction that the City of New York is the owner of the subject premises, and that DASNY was the contractor and/or hired the contractor. Lasane v State of New York, UID#2002-016-027, Claim No. 97544, Motion No. M-63575, unreported opinion (Marin, J., March 7, 2002). Defendant is entitled to judgment as a matter of law, as there are no triable issues of fact presented.

Claimant's cross-motion is denied for several reasons. First, the contents of the proposed "amended bill of particulars" do not fall within what is appropriately contained in any supplemental or amended bill [See Civil Practice Law and Rules §3043] and appear to be an attempt to tailor what fairly simple facts have been alleged to add an additional theory to the claim that the State is liable in negligence as a possessor of the premises. See Pagan v State of New York, 124 Misc 2d 366 (Ct Cl 1984). Second, a note of issue and certificate of readiness was filed by Claimant attesting that service and filing of the Bill of Particulars has been completed as of May 17, 2005, with no indication that any amendment would be sought or any rights had been reserved. Finally, it is rendered moot in that Defendant has sustained its burden on its motion for summary judgment, and Claimant has failed to produce any meaningful evidence in rebuttal.

For all of the foregoing reasons Defendant's motion for summary judgment and for dismissal of the within claim is granted, and Claimant's cross-motion is denied. Claim Number 109367 is dismissed in its entirety.

January 9, 2006
White Plains, New York

Judge of the Court of Claims

[1] Misnumbered as a second "First Defense."