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
. . . " [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
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.