McGOWAN v. THE STATE OF NEW YORK, #2006-033-558, Claim No. 109136
REVERSED 41 AD3d 670 2d Dept 6/19/07
TERENCE J. McGOWAN and FRANCES McGOWAN
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
James J. Lack
The Law Office of David W. McCarthyBy: David W. McCarthy, Esq.
Eliot Spitzer, New York State Attorney
GeneralBy: Denis McElligott, Assistant Attorney General
June 30, 2006
REVERSED 41 AD3d 670 2d Dept 6/19/07
See also (multicaptioned
This claim arises from personal injuries suffered by Terence J. McGowan
(hereinafter “claimant”) due to the alleged negligence of the State
of New York (hereinafter “defendant”). The accident occurred on
March 7, 2003, at Building 26 of Pilgrim Psychiatric Center, Brentwood, New York
(hereinafter “Pilgrim”). On January 17, 2006, a bifurcated trial
was held on the issue of liability. The claim of Frances McGowan is derivative
Claimant’s testimony was simple. Claimant is an employee
of the Dormitory Authority of the State of New York (hereinafter
“DASNY”) and was so employed on the date of his accident. His
office is located in Building 26 at Pilgrim. DASNY shares the building with the
maintenance staff of Pilgrim. He arrived at work at approximately 9:00 a.m. on
March 7, 2003 and walked without incident into Building 26 which has two
entrances. The main entrance is used primarily by the Pilgrim maintenance staff
but can be used by DASNY workers to access their own area in the building.
There is also an entrance specifically for DASNY employees.
first entered the building on the morning of March 7, 2003, he entered through
the main entrance. Shortly after entering the building and getting to his
office, claimant realized he left something in his car. Claimant then exited
the building using the DASNY door. The door is a solid door and claimant could
not see outside. When claimant opened the door, he could see that the steps had
not been cleared of snow and ice. Nevertheless, claimant began to walk down the
steps when he slipped and fell.
According to claimant’s testimony,
there was a snowstorm during the night of March 6, 2003, into the morning of
March 7, 2003. Claimant estimated that the snowfall was approximately 6 to 10
inches. He said that as he drove to work the roads he traveled were clear of
any snow or ice. The same was true for the interior roads of Pilgrim, the
parking lot for Building 26 and the sidewalks and maintenance steps of Building
Testifying on behalf of defendant, Robert Ryan, a plant
superintendent, is in charge of maintenance for Pilgrim. Ryan acknowledged
that the DASNY steps were the responsibility of Pilgrim’s maintenance
On cross-examination, Ryan stated that it would take approximately 15 minutes to
shovel the DASNY steps. However, Ryan testified that there was a priority list
in clearing snow and ice at Pilgrim.
Ryan described Pilgrim as consisting
of approximately 250 acres, with 25 buildings. Some of the buildings contain
tenants. In addition to the 25 buildings, there are outpatient buildings,
eleven community residences, four clinics off the grounds and two clinics on the
grounds (see Exhibits D and E). There are three inpatient buildings and
another building which contains the kitchen to feed the patients. Only one of
the inpatient buildings is connected to the kitchen building. The basic
description of Pilgrim is that the buildings are spread out over the 250 acres.
While the inpatients are concentrated in three buildings, the places where they
receive treatment or participate in programs are spread out in many other
Ryan testified that in the event of a snowfall there is a plan
to clean the snow and ice using various equipment to handle the roads and
sidewalks, with the maintenance staff divided into shifts to handle the storm
requirements. In addition, some of the maintenance staff must remain available
for everyday maintenance problems (e.g. light bulbs, plumbing problems, lock
problems). Lastly, that staff also needed to transport other Pilgrim personnel
to and from work.
Keeping the roadways clear is the first priority. The
next priority is the loading docks. The loading docks are cleared for the
inpatient buildings and the kitchen building. This is necessary to allow
medical waste, laundry and food into and out of Pilgrim. Parking lots are done
next. During this time, the maintenance staff must also clear two off-site
community residences and keep off-site entrances and exits to the nearby parkway
clear. The New York State Police use the ramps to the parkway and therefore the
ramps must be constantly monitored. Sidewalks are done after the roadways.
Plows and machinery are used to clear the roads, loading docks, parking lots and
During cross-examination, Ryan testified that in the priority
of Building 26, the parking lot is one of the last things done. He also
testified that he did not even think about the DASNY steps in relation to the
rest of the Pilgrim campus. The steps would be cleared if someone asked or when
everything else was done. The steps at the maintenance entrance and the area
where the snow removal vehicles are stored were cleared because this was the
base of operations. DASNY had access to their area through the main entrance.
In the ownership of property, the State of New York serves two functions.
The first role casts the State in a proprietary function and the other role is
that of a governmental function (Miller v State of New York
, 62 NY2d
506). The functions are not mutually exclusive. Instead, the functions are
opposite ends of a continuum (see Miller
A governmental entity's conduct may fall along a continuum of
responsibility to individuals and society deriving from its governmental and
proprietary functions. This begins with the simplest matters directly concerning
a piece of property for which the entity acting as landlord has a certain duty
of care, for example, the repair of steps or the maintenance of doors in an
apartment building. The spectrum extends gradually out to more complex measures
of safety and security for a greater area and populace, whereupon the actions
increasingly, and at a certain point only, involve governmental functions, for
example, the maintenance of general police and fire protection. Consequently,
any issue relating to the safety or security of an individual claimant must be
carefully scrutinized to determine the point along the continuum that the
State's alleged negligent action falls into, either a proprietary or
governmental category. Miller at 511 - 512.
In regard to its proprietary function, “the State ‘
“must act as a reasonable man in maintaining his property in a reasonably
safe condition in view of all the circumstances, including the likelihood of
injury to others, the seriousness of the injury, and the burden of avoiding the
risk” ’ (Basso v Miller
, 40 NY2d 233, 241, quoting Smith
v Arbaugh’s Rest
., 469 F2d 97, 100)” (Preston v State of New
, 59 NY2d 997, 998). The State’s proprietary function subjects it
to the same rules of liability as apply to a private citizen.
On the other
end of the continuum, is the State’s governmental function. The State
“remains immune from negligence claims arising out of governmental
functions such as police protection unless a special relationship with a person
creates a specific duty to protect, and that person relies on performance of
that duty” (Price v New York City Hous. Auth.
, 92 NY2d 553, 557 -
Taken in a vacuum, the snow removal operations at Pilgrim could
certainly be seen as a proprietary function, with a duty owed to the tenants
such as DASNY. However, snow removal at Pilgrim, is not simple as attested to
by Ryan and already set forth herein. As such, defendant developed a policy for
the removal of snow by prioritizing an order of removal, use of assets to remove
snow, and the use of personnel to divide between snow removal and the daily
functioning of the facility.
The burden in this matter was on claimant to
show the snow removal by defendant for this particular storm was outside of the
governmental function and into the normal proprietary function of a landlord in
removing snow. The testimony that was missing in this case is the testimony
that would have aided claimant in proving his case. There is no testimony as to
what the maintenance people were doing during this particular storm and when
they were doing it. No testimony was elicited as to the amount of people
working at the time of claimant’s accident other than approximately 80
people were employed by Pilgrim at this time. There was no testimony as to when
snow removal operations began or when they ceased. The fact that claimant saw
clear roads where he was and a clean parking lot does not answer the question of
whether the entire campus and off-campus facilities were cleared.
Claimant’s questioning of when the Building 26 parking lot was done was
phrased in relation to that particular building, not in relation to the entire
facility or scope of defendant’s duty.
The only testimony elicited
from defendant’s witness was that a policy had been developed and followed
during snowstorms. Based on the testimony, the Court finds defendant was acting
within its governmental function. Claimant has failed to prove any special
relationship between himself and defendant.
At trial, claimant moved to
strike defendant’s affirmative defense as to asserting governmental
immunity. The basis for striking the affirmative defense is that defendant
failed to answer a demand for a bill of particulars for the affirmative defense.
In opposition, defendant’s trial counsel argues that while immunity was
pled as an affirmative defense, such pleading was unnecessary. In examining the
exhibits supplied by claimant in support of his motion to strike the affirmative
it is clear that defendant never formally answered the demand for a bill of
particulars as to this affirmative defense.
As to affirmative defenses, CPLR 3018(b) states:
A party shall plead all matters which if not pleaded would be likely to take the
adverse party by surprise or would raise issues of fact not appearing on the
face of a prior pleading such as arbitration and award, collateral estoppel,
culpable conduct claimed in diminution of damages as set forth in article
fourteen-A, discharge in bankruptcy, facts showing illegality either by statute
or common law, fraud, infancy or other disability of the party defending,
payment, release, res judicata, statute of frauds, or statute of limitation. The
application of this subdivision shall not be confined to the instances
Two instances are raised when an affirmative defense must
be pled: first, if the defense were to take claimant by surprise, or second,
would raise an issue of fact not appearing in a prior pleading. Claimant argues
that there is nothing on the face of the claim which raises the issue of
immunity and such a claim now would take a party by surprise.
The Court of
Claims Act became effective July 1, 1939. The purpose of the Act was to waive
governmental immunity and allow citizens to sue the State of New York for money
damages. In order to sue the State of New York, a claim must be filed in the
Court of Claims which was established specifically to hear cases in which it is
alleged that the State of New York waived its governmental immunity. The issue
of governmental immunity is raised the moment a claimant believes he has a valid
claim against the State of New York. The Court is hard pressed to see how a
claimant suing the State of New York, in the Court of Claims, can claim surprise
when governmental immunity is raised as a defense. It is this very immunity
that a claimant must overcome in order to prosecute a case against the State of
The Court finds that governmental immunity need not be raised as
an affirmative defense and denies claimant’s motion to strike
defendant’s ninth affirmative defense of governmental immunity.
upon the foregoing, the Court finds defendant has successfully raised the
defense of governmental immunity. Claimant has failed in his proof to overcome
this immunity. The Court finds in favor of defendant and the Claim is
dismissed. All motions not specifically ruled upon are denied.
judgment be entered accordingly.
June 30, 2006
HON. JAMES J. LACK
Judge of the Court of Claims
.In other buildings, the housekeeping staff was responsible for clearing the
.Claimant attached Exhibits A - J to his post-trial memorandum of law to support
the motion to strike the affirmative defense.
.The Court notes that defendant’s trial counsel was not the attorney that
handled the discovery phase of this trial.