New York State Court of Claims

New York State Court of Claims

CROSS v. THE STATE OF NEW YORK, #2007-038-549, Claim No. 110494, Motion No. M-73227


Defendant’s motion to dismiss denied. A lease clause that contractually obligates the owner/ landlord to clear ice and snow does not relieve defendant, a tenant on the premises, of liability for claimant’s slip and fall as a matter of law. Successive motions for the same relief disfavored. Opposition to successive motions sound in “law of the case” and not collateral estoppel.

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:
WALLACE, WITTY, FRAMPTON & VELTRY, P.C.By: Carmine J. Goncalves, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: John Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 13, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from an alleged slip and fall on ice or snow on a “[s]idewalk/walkway located at or near the rear of 45 Mall Drive, Commack, New York.” At the time of her alleged fall, claimant was approaching the entrance to the Long Island Developmental Disabilities Services Offices (LIDDSO), a State agency. Defendant moves to dismiss the claim on the ground that defendant was merely a tenant in the building and that its lease with the landlord imposed the duty of clearing snow and ice upon the landlord, thereby relieving defendant of liability to claimant for this incident.

Claimant initially opposes the motion on the ground that defendant is collaterally estopped from making this motion because defendant sought the same relief on the same ground in a prior motion, and that the motion was denied (see Cross v State of New York, Claim #110494, Motion No. M-69940, Lack, J. [Dec. 7, 2005]). Collateral estoppel does not apply here, because it “precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity” (Buechel v Bain, 97 NY2d 295, 303 [2001] [emphasis added] [defendants collaterally estopped from relitigating the validity of an agreement that had been declared invalid in another action]; see Matter of Juan C. v Cortines, 89 NY2d 659 [1997] [administrative tribunal not collaterally estopped from considering issue that had been decided in Family Court]; Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985] [addressing collateral estoppel in the context of separate lawsuits against the same defendant]). Where, as here, a party seeks to relitigate the same issue in the same action, the appropriate legal doctrine is law of the case (see Leung v Kyu Sushi, Inc., 15 Misc 3d 141(A) [App Term, 2nd & 11th Jud Dists 2007]), but the doctrine of law of the case “applies only to legal determinations that were necessarily resolved on the merits in a prior decision” (Brownrigg v New York City Housing Auth., 29 AD3d 721, 722 [2d Dept 2006] [citations omitted, emphasis added]). In this matter, defendant did not submit a copy of the lease in support of the prior motion, and thus, it was denied not on the merits, but “upon a failure of proof” (Cross v State of New York, supra at 2). Although successive motions seeking the same relief are disfavored, especially in the absence of new evidence or other sufficient cause (see 2009 85th St. Corp. v WHCS Real Estate Ltd. Partnership, 292 AD2d 520 [2d Dept 2002]; cf. Inter-Power of New York, Inc. v Niagara Mohawk Power Corp., 259 AD2d 932 [3d Dept 1999], lv denied 93 NY2d 812 [1999]), this Court permitted defendant to submit the instant motion – which, if meritorious, would resolve the claim on an issue of law without necessity of a trial, thus honoring principles of judicial economy – subject to claimant’s reservation to oppose the motion on procedural grounds. Because neither collateral estoppel nor law of the case precludes the instant motion, and because defendant has submitted a copy of the lease which would permit the Court to fully rule on the motion, the Court will consider its merit.
Before addressing the merits of defendant’s motion, it must be noted that the nature of the motion is not clear. The notice of motion recites that it seeks “an order to dismiss . . . pursuant to Rules 3211(1) and 3211(2) [sic] of the C.P.L.R.,” yet CPLR 3211 does not have subdivisions (1) and (2). Defense counsel should be aware that such citations are erroneous because the same exact error was discussed in a prior decision of the Court (see Cross v State of New York, supra, at p.2, n 2). The confusion caused by these incorrect citations is further exacerbated in the instant motion because the anticipated instant motion was discussed during teleconferences as if it would be a motion for summary judgment. Further, the sole case cited in counsel’s papers governs decisions on summary judgment motions (see Belford Affirmation, ¶ 7), and counsel has submitted an EBT transcript (see Belford Affirmation, Exhibit B) in support of the motion that may be pertinent to a motion for summary judgment pursuant to CPLR 3212, but which is not proper support for a motion to dismiss pursuant to CPLR 3211(a)(1) because it is not documentary evidence (see Berger v Temple Beth-El of Great Neck, 303 AD2d 346, 347 [2d Dept 2003]). However, because Judge Lack construed the prior motion as a motion to dismiss and the instant motion was served with the same notice, and because claimant’s opposition to the instant motion is made with apparent reliance upon the notice of motion designating it as a motion to dismiss, and because the motion is essentially the same as the prior motion – primarily arguing that defendant’s liability is precluded by the lease – the instant motion will be construed as a motion to dismiss pursuant to CPLR 3211(a)(1) and not as a motion for summary judgment pursuant to CPLR 3212.[1]

The standard for deciding a motion to dismiss pursuant to CPLR 3211 is well established:

[T]he pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v Morone, 50 NY2d 481, 484; Rovello v Orofino Realty Co., 40 NY2d 633, 634). Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (see, e.g., Heaney v Purdy, 29 NY2d 157).

(Leon v Martinez, 84 NY2d 83, 87-88 [1994]; see Berger v Temple Beth-El of Great Neck, supra). As pertinent to this motion, the claim alleges that “[d]efendant, its agents, servants and/or employees were careless, reckless, negligent and grossly negligent in the ownership, operation, maintenance, control, supervision, management and inspection of the premises and sidewalk/walkway.” The lease agreement submitted by defendant in support of the motion conclusively establishes both that defendant did not own the property and that the owner had a contractual obligation to clear snow and ice from the premises. Nevertheless, such facts do not warrant dismissal of the claim because neither tenancy nor the contract clause operate to eliminate defendant’s liability as a matter of law.

“A tenant may be held liable for a dangerous or defective condition on the premises it occupies, even where the landlord has explicitly agreed in the lease to maintain the premises and keep it in good repair. . . Consequently, the fact that the landlord was contractually responsible for snow and ice removal does not relieve the defendant[] from liability for the alleged dangerous condition on the premises” (Cohen v Central Parking Systems, Inc., 303 AD2d 353, 354 [2d Dept 2003] [citations omitted]; see Chadis v Grand Union Co., 158 AD2d 443, 444 [2d Dept 1990]). Further, the terms of the lease do not demonstrate that the location where claimant fell was outside of defendant’s control (compare Masterson v Knox, 233 AD2d 549 [3d Dept 1996]; Chadis v Grand Union Co., supra), because the subject of the lease is described as “31,000 Square Feet of space at 45 Mall Drive, in Commack, New York,” and defendant is granted tenancy in “the premises with the appurtenances.” Thus, the documentary evidence submitted does not conclusively establish a defense as a matter of law, and defendant’s motion must be denied.

Motion No. M-73227 is DENIED.

July 13, 2007
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Notice of Motion, dated April 16, 2007;

(2) Affirmation of John Belford, IV, dated April 16, 2007, with exhibits A-C;

(3) Affirmation in Opposition of Carmine J. Goncalves, Esq., dated April 25, 2007,

with exhibits 1-2.

[1]. As indicated above, the notice of motion states that it seeks dismissal pursuant to CPLR 3211(2), which presumably refers to CPLR 3211(a)(2). Because the instant motion makes absolutely no argument in support of dismissal on jurisdictional grounds, that part of defendant’s motion is denied.