New York State Court of Claims

New York State Court of Claims

McGOWAN v. THE STATE OF NEW YORK, #2006-033-558, Claim No. 109136


REVERSED 41 AD3d 670 2d Dept 6/19/07

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):

James J. Lack
Claimant’s attorney:
The Law Office of David W. McCarthyBy: David W. McCarthy, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Denis McElligott, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2006

Official citation:

Appellate results:
REVERSED 41 AD3d 670 2d Dept 6/19/07
See also (multicaptioned case)

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 in nature.
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.
When claimant 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 26.
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 staff.
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 buildings.
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 sidewalks.
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 York, 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 - 558).
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 defense,
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 enumerated.

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 New York.
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.
Based 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.
Let judgment be entered accordingly.

June 30, 2006
Hauppauge, New York

Judge of the Court of Claims



.In other buildings, the housekeeping staff was responsible for clearing the steps.
.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.