New York State Court of Claims

New York State Court of Claims

ARAMINI-SAMUELS v. THE STATE OF NEW YORK, #2008-013-039, Claim No. 115288, Motion No. M-75085


Synopsis



Case Information

UID:
2008-013-039
Claimant(s):
MARY E. ARAMINI-SAMUELS
Claimant short name:
ARAMINI-SAMUELS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115288
Motion number(s):
M-75085
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant’s attorney:
MARY E. ARAMINI-SAMUELS, ESQ., Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 29, 2008
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


On July 16, 2008, the following papers were read on motion by Defendant for dismissal of the claim in lieu of an answer:

Notice of Motion, Affirmation and Exhibit Annexed


Opposing Affirmation


Reply Affirmation and Affidavit


Sur-Reply Affirmation


Filed Papers: Claim

Upon the foregoing papers, this motion is denied without prejudice.

In a claim filed on May 27, 2008, Claimant Mary E. Aramini-Samuels alleges that she sustained personal injuries in a slip and fall on ice while walking at about 9:15 a.m. on March 11, 2008 “from the sidewalk area to the handicapped ramp located at the entrance to the Hall of Justice” located in Rochester. The claim alleges upon information and belief that the Hall of Justice is owned, operated and/or maintained by the State of New York. In lieu of an answer, the Defendant State of New York seeks dismissal of the claim pursuant to CPLR 3211(a)(1); 3211(a)(2); and 3211(a)(7).

The essence of the Defendant’s motion is that the State of New York does not own, operate and/or maintain the Monroe County Hall of Justice, which by affirmation of its counsel is a facility which is owned, operated and maintained by Monroe County under the “statutory aegis of Judiciary Law Section 39(3)(a)” and that all facilities furnished by Monroe County “shall continue to be so furnished.” The Defendant adds that security and other service personnel at the Hall of Justice remain county employees (Judiciary Law Section 39[3][c]).

In furtherance of its argument that the claim will not lie against the State of New York, the Defendant references a telephone call with a Deputy Attorney for Monroe County who acknowledged that a Notice of Claim had been filed by Claimant with Monroe County, and who purportedly acknowledged that “he was unaware of any contractual or other nexus that would implicate the State.”

The Claimant opposes dismissal, noting that a defense relying upon CPLR 3211(a)(1) requires such defense to be founded upon documentary evidence. She also suggests that the statutory references to Judiciary Law Section 39(3)(a) merely places the State as the financially responsible party, a conclusion that I believe is erroneous. On the other hand, pursuant to Judiciary Law Sections 39(3)(b) and (c), court security personnel do remain employees of Monroe County, which is statutorily entitled to reimbursement by the State for the costs thereof.

Claimant also notes that Judiciary Law Section 39-b(2) makes the State responsible for the “cleaning of court facilities” (as defined by Judiciary Law Section 39-b[1][b]).

Claimant alleges that the Monroe County court deputies charged with furnishing security at the Hall of Justice and who “patrol” on foot outside looking, upon information and belief, for dangerous conditions, take their orders from both Monroe County and the State. Thus, suggests the Claimant, those deputies patrolling outdoors, employed by the County but somehow directed by both the County and the State, saw or should have seen the dangerous condition of ice on the handicapped ramp and had a duty to arrange for the condition to be remedied or to have the area secured until it was safe for use.

Claimant avers that a question of fact exists requiring the Court to determine if the failure to remedy the condition or secure the area is attributable to the State or the County or both. More specifically, were these individuals acting, or failing to act, in their capacity as employees of Monroe County and/or as agents of the State.

Claimant readily distinguishes the decisions cited by the Defendant, noting that in Waldstreicher v State of New York (UID 2006-030-502, Ct Cl, Claim No. 109367, Motion Nos. M-70819 and CM-70885, Jan. 9, 2006, Scuccimarra, J.)[1] the State entity implicated, the Dormitory Authority of the State of New York, cannot be sued in the Court of Claims; in Cosentino v State of New York (UID 2005-016-016, Ct Cl, Claim No. 109160, Motion No. M-68482, Feb. 28, 2005, Marin, J.), the claim was dismissed because the incident occurred on a New York City sidewalk outside the courthouse and not in any way related to the State’s §39-b(2) responsibilities; in Gutz v County of Monroe (221 AD2d 838), where the State is not discussed at all; and in Roumpapas v State of New York (Ct Cl, Motion No. M-71449, Aug. 24, 2006, Minarik, J.), where a late claim was denied on grounds distinct from the issues at bar.

Indeed, albeit in a late claim motion which was denied (Gay v State of New York, UID 2000-016-108, Ct Cl, Claim No. 102255, Motion Nos. M-61661 and CM-62392, Jan. 3, 2001, Marin, J.) while the Court could not find that the control of moisture tracked into the courthouse would fall within the cleaning activities contemplated by Judiciary Law §39-b, it noted that “[p]olicies dealing with rain and snow removal are clearly distinct from the... items contemplated by §39-b.” The papers before me are totally silent with respect to policies and/or the designation of responsibility for snow and ice removal.

In summation, Claimant opposes dismissal by noting that no document has been presented to the Court to demonstrate that Monroe County, and not the Defendant, is responsible.

The State replies in an attempt to fill that void by adding the affidavit of one Harry Salis, the District Executive of the Seventh Judicial District, who avers that the Hall of Justice is a facility owned and operated by Monroe County, and who allows that snow and ice removal at the said Hall of Justice is the sole responsibility of Monroe County, and such duties are handled by Monroe County forces.

The Claimant respectfully demurs in a sur-reply affirmation.[2] Preliminarily, although the CPLR does not reference such sur-reply opportunities, given the Defendant’s initial submission of Mr. Salis’s affidavit in its reply affirmation, I find that Claimant is entitled to respond thereto, and accordingly her sur-reply will be considered.

Claimant’s position here is quite simple and direct. She alleges upon personal knowledge that the Defendant issues instructions to personnel at the Hall of Justice. She notes that even in its reply, the Defendant proffers no written document delineating the respective responsibilities of the State and Monroe County.

Significantly, she notes, and I certainly note as well, that there is no affidavit from anyone from Monroe County, and that all the denials and demurrals of responsibility here come from State officials and counsel, and would appear to be self-serving. She is correct.

Would that there be an affidavit or affirmation from someone in a position of authority capable of binding Monroe County, that it owns, operates and maintains the Hall of Justice and is legally and solely responsible, inter alia, for the operation and maintenance of the “sidewalk area to the handicapped ramp located at the entrance to the Hall of Justice,” albeit without acknowledging any liability with respect to the instant accident. Then, perhaps Claimant would know that she may proceed in her Supreme Court action against Monroe County relating to this incident without facing a similar spate of reciprocal self-serving proclamations pointing the finger at the State.

Regardless, based upon the papers before me at this time, the State’s motion is denied. The State shall have 40 days from the date of service upon it of a file-stamped copy of this Order to serve and file its answer.


September 29, 2008
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims




  1. Decisions and selected orders of the New York State Court of Claims are available on the Internet at www.nyscourtofclaims.state.ny.us
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  2. [2]Lest there by any question, Claimant is an attorney, appearing pro se, and is thus entitled to provide an affirmation (CPLR 2106).