New York State Court of Claims

New York State Court of Claims

CADEN v. THE STATE OF NEW YORK, #2008-015-096, Claim No. 112898, Motion No. M-75248


Claim for personal injuries sustained in trip and fall on sound cable at SPAC was dismissed. SPAC lacked authority to supervise or control the amphitheater where the accident occurred.

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:
Friedman, Hirschen & Miller LLPBy: Lynn Knapp Blake, Esquire
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney GeneralBy: Carter, Conboy , Case, Blackmore, Maloney & Laird, P.C., Leah W. Casey, Esquire
Third-party defendant’s attorney:

Signature date:
December 3, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212. Claimant allegedly sustained injuries when she tripped on cables and fell while attending a performance of the New York City Ballet held in the amphitheater at the Saratoga Performing Arts Center ("SPAC") on July 22, 2006. As described at her examination before trial, the claimant tripped on a large black cable on the floor of the auditorium while walking to her assigned seat. The cable appeared to run from the stage area which was in front of the claimant's seat to a "sound stage" situated behind it (defendant's Exhibit D, p. 26). According to Richard D. Geary, Chief Financial Officer and Chief Operating Officer of SPAC, the cables were installed by a company identified as Omnitech pursuant to a contract with SPAC and ran through the center section of seats from the stage at the front of the auditorium to the "mix position" in the rear of the auditorium where sound mixing equipment was located (defendant's Exhibit F, pp. 16-18). It is undisputed that the defendant had no involvement in the placement of the cables upon which the claimant tripped and fell (defendant's Exhibit F, p. 23; defendant's Exhibit G, p. 28).

It is also undisputed that the amphitheater is owned by the State of New York and operated by SPAC pursuant to a license agreement with the Office of Parks and Recreation (hereinafter "defendant" or "PARKS") (defendant's Exhibit G, p. 7-9; defendant's Exhibit F, p. 6). As part of discussions begun in early 2006 regarding certain renovation work to be performed at the SPAC amphitheater, SPAC representatives suggested that a trench designed to contain cabling be installed in the amphitheater's cement floor "[t]o avoid an obvious condition with cables running on concrete"

(defendant's Exhibit F, p. 14, 18-19). The work, including installation of the trenches recommended by SPAC, was performed in the winter of 2006/2007 pursuant to a contract between the defendant and an outside contractor (defendant's Exhibit G, p. 13). Guidelines for the timing of the work were provided by SPAC, which required that a portion of the work commence after the completion of the performance season (defendant's Exhibit F, p. 12).

The license agreement between PARKS and SPAC granted to SPAC "an exclusive license to use, occupy, possess and to restrict entrance to, all that certain piece and parcel of land occupied by and surrounding the amphitheater erected by SPAC situated at the Saratoga Springs Reservation, in the City of Saratoga Springs, Saratoga County and State of New York . . . including any structures now or hereafter erected thereon incidental to the operation of said amphitheater . . ." (defendant's Exhibit H, License Agreement entered into April 25, 1977). Pursuant to this agreement, PARKS agreed to "[r]epair, rehabilitate, replace in kind and, when necessary or appropriate in the opinion of PARKS, add to or improve all structures now or hereafter built upon the licensed premises, . . . so that these properties may remain in as good condition as when the construction thereof was accomplished, reasonable wear and tear excepted . . ." (defendant's Exhibit H, 1977 License Agreement, pp. 4-5). PARKS further agreed that it would not "without the prior consent of SPAC alter, add to, subtract from or replace (otherwise than in kind as heretofore set forth) any of the aforesaid structures contained within the licensed premises" (defendant's Exhibit H, 1977 License Agreement, p. 5). The license agreement also permitted SPAC at its own expense to "alter or add to the licensed area" with the prior approval of PARKS (defendant's Exhibit H, 1977 License Agreement, p. 6, ¶ 2 [c]) and permitted PARKS "full access to the premises for the purposes of inspection and control" (defendant's Exhibit H, 1977 License Agreement, p. 16, ¶ 22).[1] An amendment to the license agreement made on December 15, 1989, among other things, provided that SPAC "shall be responsible for seasonal and hourly personnel in conjunction with all its operations . . ." (defendant's Exhibit H, License Revision dated December 15, 1989, ¶ 1 [d]). The agreement also made SPAC responsible for costs related to "[m]aterials and supplies required for PARKS' repair, replacement and maintenance of licensed premises. . . " (defendant's Exhibit H, License Revision dated December 15, 1989, ¶ 1 [h] [ii]).[2]

In support of its motion for summary judgment, the defendant argues that it did not create the allegedly defective condition involving the cable and was without the power to correct it. It also argues that it had no duty to make capital improvements to the amphitheater which it argues was in a reasonably safe condition.

It is well established that "'summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue'" (Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978][citation omitted]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986], citing Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Here, claimant failed to overcome defendant's prima facie showing of its entitlement to summary judgment dismissing the claim.

The law is well settled that "[a]n out-of-possession landlord who retains the right to reenter the leased premises for purposes of inspection or structural repair may be held liable for injuries to third parties only where the injuries arise from structural defects or a specific statutory violation" (Sauer v Mannino, 309 AD2d 1053, 1054 [2003]; cf. Katz v Queens Theater in the Park, 27 AD3d 623 [2006]; Gibbs v Port Auth. of N.Y., 17 AD3d 252 [2005] ). An out-of- possession landlord bears no liability, however, for unsafe conditions brought about through the act of its tenant regardless of whether it has notice of the allegedly defective condition (Davison v Wiggand, 259 AD2d 799, 802 [1999], lv denied 94 NY2d 751 [1999]; see also Brockington v Brookfield Dev. Corp., 20 AD3d 382 [2005]). For example, in Davison v Wiggand, supra, the plaintiff sustained injuries when he struck his head on pipes while performing work on a 15-foot-high storage loft. The Appellate Division, Third Department, held that summary judgment dismissing the complaint against an out-of-possession landlord was appropriate in that although the landlord was contractually obligated to make structural repairs to the premises, including the pipes, it was the tenant's construction of the loft which created the dangerous condition giving rise to the plaintiff's injuries. The pipes themselves functioned properly and required no repairs. According to the Court "[u]nder the circumstances, we are unpersuaded . . . that defendant's 'control' of the pipes or its notice of the dangerous condition (even if established) imposed a duty upon defendant to make structural modifications necessary to remedy the condition" (Id. at 801).

Here, SPAC had an exclusive license for the use and operation of the premises. SPAC entered into a contract with Omnitech for the installation of the cables, an act for which its license agreement with the defendant required no prior approval. It is undisputed that the defendant took no part in the placement of the cables upon which the claimant tripped.

Like the facts in Davison v Wiggand, supra, while the claimant argues the defendant should have installed a trench to house the cables prior to the date of the claimant's accident " there was no defective condition requiring repair and defendant took no action such as would have provided a separate basis for liability" (Davison v Wiggand, supra at 802). The claimant was not injured as a result of a defect in the amphitheater floor. Rather, the claimant allegedly tripped on cables installed by a third party pursuant to a contract with SPAC. Notwithstanding the claimant's contrary argument, under these circumstances the mere fact that the defendant admittedly knew that SPAC placed cables on the floor (defendant's Exhibit G, pp. 25-26, 34-35) is an insufficient basis upon which to predicate liability. The license agreements make clear that defendant lacked the authority to control the use and operation of the amphitheater or otherwise make structural repairs without the approval of SPAC. Even once approval for repairs was obtained, SPAC dictated the timing of the work, requiring that some of it be performed at the conclusion of the performance season. The creation of the trenches in the cement floor of the amphitheater obviously could not be performed during the performance season and was therefore completed in the winter of 2006/2007. Thus, defendant did not have the requisite degree of control necessary to impose liability for the failure to correct the allegedly unsafe condition of the cables on the premises (cf. Deerr'Matos v Ulysses Upp, LLC, 52 AD3d 645 [2008]; Stickles v Fuller, 9 AD3d 599 [2004]; Henness v Lusins, 229 AD2d 873 [1996]; Downey v R.W. Garraghan, Inc., 198 AD2d 570 [1993]).

Accordingly, the defendant's motion for summary judgment is granted and the claim is dismissed.

December 3, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 14, 2008;
  2. Affidavit of Leah W. Casey sworn to July 14, 2008 with exhibits;
  3. Memorandum of Law of Leah W. Casey dated July 14, 2008;
  4. Affidavit of Leah W. Casey sworn to July 17, 2008 with exhibit;
  5. Affidavit of Lynn Knapp Blake sworn to August 21, 2008;
  6. Reply affidavit of Leah W. Casey sworn to September 2, 2008.

[1]. A reciprocal indemnity provision is included in the agreement, which provides, inter alia, that SPAC would indemnify and hold PARKS harmless for claims "arising out of the operation of the licensed premises by SPAC" (defendant's Exhibit H, 1977 License Agreement, p. 16).
[2]. The premises on which the amphitheater is now situated was originally leased to SPAC in 1966. The 1966 "Lease" reflects the desire of SPAC to erect a building on the premises of the lessor (the predecessor in interest to PARKS) and granted to SPAC a license to use and restrict access to the lands outside the leased premises (see Lease dated June 28, 1966, par. 14). This lease agreement was amended on February 3, 1968 to require SPAC to take the necessary steps to convey title to the structure to the State of New York with the concomitant provision granting SPAC an exclusive license to use the premises. Pursuant to this 1968 agreement, SPAC gave up its rights to the leased and licensed premises which had been granted under the 1966 agreement (see 1968 Agreement, p. 13).