New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2007-044-580, Claim No. 111354, Motion No. M-73657


Synopsis


Claim for serious injuries incurred from a fall off a loading dock at a governmental complex was dismissed, where intergovernmental agreement regarding maintenance and repair of the complex was so comprehensive as to create rare situation where defendant's duty to maintain the loading dock area in a reasonably safe condition was completely displaced.

Case Information

UID:
2007-044-580
Claimant(s):
THOMAS P. ALLEN
Claimant short name:
ALLEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111354
Motion number(s):
M-73657
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
LACHMAN & GORTONBY: Peter A. Gorton, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Law Office of Michael M. Emminger Michael M. Emminger, Esq., of counsel
Third-party defendant’s attorney:

Signature date:
November 14, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an employee of the City of Binghamton (the City), seeks to recover for personal injuries allegedly received when he fell from a loading dock located at the Binghamton Governmental Civic Center (the Center). The Center contains facilities occupied by the City, the County of Broome (the County)[1] and defendant State of New York (defendant). Defendant answered and discovery was conducted. Defendant now moves for summary judgment dismissing the claim. Claimant opposes the motion. The Center was constructed pursuant to an agreement executed by the City, the County and defendant in April 1969 (the Agreement), and is located on the “Center Site” which is comprised of the City Site, the County Site and the State Site (Agreement, Article I; Exhibit A to the Agreement).[2] The Center consists of a substructure;[3] the superstructures of the City Office Building, the County Office Building, and the State Office Building;[4] a Landscaped Area;[5] and other related Public Improvements (Agreement, Article I).[6] The City Office Building is located on the City Site which is bounded on the west by State Street, on the north by Hawley Street, on the east by the State Site. The City Site specifically includes the Service Lane[7] and the Landscaped Area (Agreement, Article I). The County Office Building is located on the County Site which is bounded on the west by the State Site, on the north by Hawley Street, on the east by Isbell Street and on the south by the Service Lane (Agreement, Article I). The State Office Building is located on the State Site which is bounded on the west by the City Site, on the north by Hawley Street, on the east by the County Site and on the south by the Service Lane (Agreement, Article I). Although the City and the County each own their respective “Site” (Agreement, Article II, Section 2.01 [a]; Article III, Sections 3.04 [a]; 3.05 [a]), the City is record owner of the State Site and has leased that property to defendant for a period of 40 years, after which title will vest in the State (Agreement, Article II, Section 2.01 [a]; Article III, Sections 3.01 [a], 3.06).

The issue of the existence of a duty owed from an alleged tortfeasor to an injured claimant is, in the first instance, a question of law for the Court (see e.g. Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579, 585 [1994]; see also Church v Callanan Indus., 99 NY2d 104, 111-112 [2002]). “It is well-settled law that an owner or occupier of property open to the public owes a duty to maintain it in a reasonably safe condition to prevent foreseeable injuries” (Costello v Grand Cent. Plaza, 268 AD2d 722, 723 [2000]; see also Hendricks v Lee’s Family, 301 AD2d 1013 [2003]; see generally Basso v Miller, 40 NY2d 233, 241 [1976]). Although an owner or occupant may contract with a third party to provide maintenance services, that owner or occupant will generally remain liable to a claimant for injuries caused by the third party’s negligence in the performance of such maintenance services (see e.g. Salisbury v Wal-Mart Stores Inc., 255 AD2d 95 [1999]). However, in rare instances, a maintenance agreement may be so comprehensive and exclusive that it entirely subsumes the duty of the owner or occupant to keep the premises in a reasonably safe condition, and instead imposes that duty on the party providing the maintenance (see Palka v Servicemaster Mgt. Servs. Corp., supra [where the maintenance agreement was so comprehensive with respect to preventative maintenance, inspection and repair that defendant was in essence the sole privatized provider for a safe and clean premises]; cf. Espinal v Melville Snow Contrs., 98 NY2d 136, 138 [2002] [where the Court discussed the three circumstances under which a party to a contract may be liable in tort to a non-contracting party, including the situation presented in Palka, but found that the agreement at issue was not so comprehensive to displace the landowner’s duty]). In the instance of such a truly comprehensive agreement, the obligation is so broad that it entirely displaces the landowner’s duty, and the breach of a safety-related aspect of that contractual obligation is sufficient to impose liability on the third party (see Espinal v Melville Snow Contrs., supra).

Article VII of the Agreement provides that, after completion of the construction, “the City shall have charge of and conduct all operations and maintenance of the Common Areas. Such maintenance shall include, without limitation thereto, all cleaning services, snow removal, preventive care and maintenance of planting, ornamentation, mechanical equipment and other Improvements, the furnishing of lighting, heating, ventilation and similar utilities and all repairs and refurbishing, other than major or structural repairs, necessary to maintain and preserve the Common Areas in orderly and safe condition” (Agreement, Article VII, Section 7.02 [a]). Importantly, the Common Areas are defined to be “[t]he Service Lane and all portions of the Substructure except those spaces integral to and situated below the Office Buildings of the State, the County and the City as the said spaces are more particularly described and delineated on Exhibits C-1 through C-4 attached [to the] Agreement.”[8]

In March 1973, the City, the County and defendant entered into the “First Amendment of Tripartite Agreement” (the First Amendment), one of the purposes of which was to charge the County, rather than the City, with the conduct of all operations and maintenance of the Common Areas (the First Amendment, ¶ 4). The First Amendment specifically amended Section 7.02 (a) of the Agreement, and provides that after completion of construction, “the County shall have charge of and conduct all operations and maintenance of the Common Areas and the Landscaped Area. Such maintenance and operation shall include, without limitation thereto, all cleaning services, snow removal, preventive care and maintenance of planting, ornamentation, mechanical equipment and other Improvements, the furnishing of security services and of lighting, heating, ventilation and similar utilities, the operation of the sprinkler system and the carbon dioxide system, and all repairs, and refurbishing, other than structural repairs, necessary to maintain and preserve the Common Areas and the Landscaped Area in orderly and safe condition.”[9]

There is no dispute concerning the manner in which claimant’s accident occurred. Claimant arrived at the Center and parked a City pickup truck in close proximity to the loading dock adjacent to the City Office Building. Claimant entered the City Office Building through one of the four doors connecting it with the loading dock. Claimant and a co-worker retrieved a ladder and returned to the loading dock area. It is undisputed that there are two separate metal ramps at the loading dock area which can be raised and lowered to the level of a truck which is either loading or unloading items. Both ramps work in an identical manner and each has an additional plate or flap that is hinged to the front of the ramp which bridges the gap between the ramp and the truck bed. Under normal circumstances, once the ramp is raised or lowered to the correct position and the flaps are in a vertical position, the ramp is locked at that height. As claimant was attempting to step into the bed of the truck, he walked onto the ramp, which descended without warning. Claimant lost his balance and fell to the ground below, and incurred serious personal injuries.

Defendant contends that, based upon the Agreement and the First Amendment, the State had no duty to inspect, maintain or repair the loading dock area, particularly the ramps. In the alternative, defendant argues that claimant has not submitted evidence that the loading dock or ramps were defective, and moreover, even if there was a defect, the State had neither actual nor constructive notice thereof. In contrast, claimant asserts that the Agreement establishes that the City and defendant shared the loading dock area equally.1[0] Claimant also alleges that there is a question of fact as to whether defendant would have noticed the defect if it had performed routine inspections of the loading dock area, although there is no allegation that defendant is obligated in any way to conduct such inspections.

A review of the documents submitted establishes that the loading dock area is located completely within the City Site, although that area is used by both the City and defendant [Agreement, Exhibit A; the First Amendment, Exhibit C-2].1[1] Defendant’s potential liability, therefore, is that of an occupant of the loading dock area. The crucial issue in this case is whether the maintenance sections of the Agreement and the First Amendment are so comprehensive and exclusive that together they displace defendant’s duty to maintain the loading dock area and instead ultimately impose that duty upon the County.

As noted previously, the Agreement, as amended by the First Amendment, obligated the County to be in charge of and to conduct all maintenance of the Common Areas, including preventative care and maintenance of mechanical equipment; to furnish utilities such as lighting, heating, and ventilation; and to undertake non-structural repairs to keep the Common Areas in an orderly and safe condition. Notably, neither the Agreement nor the First Amendment thereto reserved to either defendant or the City any responsibility or control whatever over the routine maintenance of the Common Areas, including the loading dock area. Moreover, the Agreement and the First Amendment plainly impact the safety of all users of the Common Areas of the Center.

The Court finds that the Agreement and the First Amendment are so comprehensive and exclusive with respect to the maintenance and repair of the premises that defendant’s duty to maintain the loading dock area in a reasonably safe condition was completely displaced (see Palka v Servicemaster Mgt. Servs. Corp., supra; Karac v City of Elmira, 14 AD3d 842 [2005]; Burniche v CB Richard Ellis, 294 AD2d 729 [2002]). Unfortunately for claimant, this situation

is one of the rare instances in which defendant, as occupant of the area, owes no duty to claimant and thus is not liable. Accordingly, defendant’s motion for summary judgment is granted and Claim No. 111354 is hereby dismissed.



November 14, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on defendant’s motion:

1) Notice of Motion filed on July 3, 2007; Affirmation of Matthew J. Roe, Esq., dated June 28, 2007, and attached Exhibits A through K.


2) Defendant’s Memorandum of Law dated June 28, 2007.

3) Affirmation of Peter A. Gorton, Esq., dated July 10, 2007, in opposition to defendant’s motion.


4) Claimant’s Memorandum of Law dated July 12, 2007.


Filed papers: Claim filed on September 12, 2005; Answer filed on November 10, 2005.



[1]. Claimant also has a civil action pending against the County in Supreme Court.
[2]. The Agreement, its amendments, and site plans are attached to defendant’s motion papers as Exhibit F.
[3]. The substructure includes “[t]he sub-basement, basement, ground, and plaza levels, including the spaces integral to the Office Buildings for the State, the County and the City, the parking areas on ground level . . . basement and sub-basement levels and ramps leading to and from the same; the pedestrian bridges and walkways whether wholly or partly within the Center Site; the Service Lane; benches, fountains and other ornamentation serving the plaza; grass, trees, shrubs and other landscaping items, and related facilities and Improvements, excluding, however, the Landscaped Area; as generally described and delineated in Exhibit C-1 through C-4 annexed [to the Agreement]” (Agreement, Article I).
[4]. For use by the City, the County and defendant, respectively.
[5]. The Landscaped Area is “[t]hat portion of the City Site bounded by the YMCA parcel on the east, State Street on the west and Susquehanna Street on the south which is delineated on Exhibit A annexed [to the Agreement].”
[6]. Public Improvements or Improvements are defined as “[t]he structural improvements and facilities constituting all or any part of the Substructure, the State, County or City Office Buildings and the Landscaped Area, including but not limited to pedestrian bridges and walkways, ramps, fountains, sculptures and other ornamentation, installation of trees, shrubs and other landscaping, or any combination of the foregoing and [a]ppurtenances thereto.”
[7]. The Service Lane is defined as “[t]hat portion of the City Site providing access from and to Isbell Street and being a strip of land 20 feet in width extending from Isbell Street westerly 267.98 feet as delineated on Exhibit A annexed [to the Agreement]” (Agreement, Article I).
[8]. Each entity is responsible to repair and reconstruct their respective office buildings and integral spaces in the event of fire, explosion or other catastrophe (Agreement, Article VII, Section 7.04).
[9]. As a result, the First Amendment relieved the City of the obligation to perform maintenance on the Landscaped Area, and additionally charged the County with responsibility for the operation of the sprinkler and carbon dioxide systems.
1[0]. Although claimant also attempts to make the argument that the evidence shows that defendant's employees had previously provided some maintenance in the area, and thus should have been aware of the defect, both claimant's counsel and the evidence (a deposition) in question indicate that it was actually the County's employees who may have provided some maintenance, and that such maintenance occurred approximately 20 years ago. Additionally, defendant's employees may have assisted the City in disposing of some garbage from the area, but that assistance occurred substantially after the accident in question, and does not constitute an activity which might revive any obligation to maintain the area and/or equipment despite the provisions of the Agreement.
[1]1. The parking allocation was also amended in the First Amendment, Article VIII, Section 8.01. The site plans for the sub-basement and basement levels, originally marked as Exhibits C-4 and C-3, respectively, to the Agreement, were revised and became Exhibits C-1 and C-2 to the First Amendment.