New York State Court of Claims

New York State Court of Claims

LEE v. STATE OF NEW YORK, #2008-029-091, Claim No. 112875


(NYSCEF), Motion Nos. M-73930, M-74658


Synopsis


Claimant, a student at the State University of New York at Albany and a member of the school’s rugby club, seeks damages for injuries sustained while a passenger in a car traveling to a rugby match that was involved in a five car accident. Defendant’s motion for summary judgment on the ground that claimant failed to state a cause of action is denied. The Court concludes that, even if liability cannot be premised upon the rugby club having financing through the Student Association, as defendant contends, defendant has nonetheless failed to meet its initial burden to establish as a matter of law that it did not have control or supervision over the activities of the rugby club. Defendant’s offer of proof to establish the lack of control or supervision as part of its reply affirmation cannot be considered by the Court in assessing whether defendant has established its prima facie burden on a motion for summary judgment.

Case Information

UID:
2008-029-091
Claimant(s):
JENNIFER LEE
Claimant short name:
LEE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112875 (NYSCEF)
Motion number(s):
M-73930, M-74658
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Powers & Santola, LLP
By: Laura M. Jordan, Esq. and John H. Fisher, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Glenn C. KingAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 15, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arises from a five car accident that occurred on October 16, 2004 on Interstate 87. On that day, claimant, a student at the State University of New York at Albany (SUNY Albany) and a member of the SUNY Albany Rugby Club, was one of three female passengers in a 2004 Nissan that was owned and operated by Kristen M. Garry, a fellow team member. At the time of the accident, the women were traveling to a sanctioned rugby match at SUNY Oneonta. Claimant alleges to have sustained personal injuries as a result of the accident, and asserts, among other things, that the “Rugby Club was a recognized student organization provided with funding by the Student Association of SUNY Albany.” Claimant asserts that the accident occurred due to “the careless, reckless and negligent conduct of [the driver],” as well as the State of New York “in arranging transportation for the event” and in failing to properly supervise and/or exercise control over the Student Association and the Rugby Club. Issue was joined, and defendant now moves the Court for summary judgment dismissing the claim on the ground that claimant has failed to state a cause of action. Defendant argues that claimant’s payment of an activity fee for participation on the rugby team is not a sufficient basis on which to premise liability for her injuries. In sum, defendant contends that it did not owe a duty to claimant. Claimant opposes the motion or, in the alternative, requests that a continuance be granted to permit additional discovery. Defendant served responses to claimant’s discovery demands, but depositions of the parties have not been conducted, and counsel for claimant contends that information is needed “regarding defendant’s control, supervision and responsibilities regarding the Student Association’s and the Albany State Rugby Club’s activities, procedures, policies, rules and regulations.” By order to show cause dated March 12, 2008, claimant also moves the Court for an order compelling defendant to accept her supplemental affirmation in opposition to summary judgment wherein she asserts the unpleaded cause of action of vicarious liability based upon the doctrine of respondeat superior. Defendant opposes the motion.

Documentation provided by defendant in response to claimant’s discovery demands reveals that students enrolled at SUNY Albany are required to pay a mandatory student activity fee at the time of registration. The amounts collected are paid to an agent of the Student Association with approval of the SUNY Albany Campus President. After its proposed budget is reviewed and certified by the Campus President, the Student Association, in turn, is authorized to allocate and distribute funds to various student organizations. Approved student organizations are authorized to use such funds for, among other things, “transportation in support of these programs” and “remuneration and reimbursement of reasonable and necessary travel expenses in accordance with state guidelines to students for service to student government” (8 NYCRR § 302.14[c][3][ix], [xi]). During the 2004-2005 academic year, the SUNY Albany Rugby Club was an approved student organization and it received activity fee funds from the Student Association.

The fiscal accounting procedures adopted by SUNY Albany required that organizations recognized by the Student Association be covered by a general liability insurance policy. Additionally, the Treasurer’s Handbook for the Student Association provided that approved organizations could receive reimbursement for gas, tolls and out-of-pocket expenses when private vehicles were used for organization events, with the following proviso:
“If you wish for one of your group members to drive his or her personal vehicles to an SA group sponsored event, everyone who will drive must submit their license to the Director of Operations at least a week in advance for clearance. Otherwise the trip will not be considered authorized and you cannot be reimbursed for gas, tolls, or other out-of-pocket expenses.”

Claimant states in her opposing affidavit that in the fall of 2004 she was a full-time, matriculated student at SUNY Albany, and that she paid the student activity fee. In September 2004, she joined the rugby team. Prior to the accident, the team had played two regular season games, one at Rensselaer Polytechnic Institute in Troy, New York and the other at SUNY Albany. Claimant participated in both games and was scheduled to play against SUNY Oneonta on the day of the accident. Claimant states that the players and the team’s two coaches had discussed travel plans for the Oneonta game, and it was decided that the team would meet at the SUNY Albany field where the players would be transported to SUNY Oneonta in vehicles that were owned by fellow team members. No school van or other vehicle was provided by SUNY Albany or by the Student Association. Claimant further avers that “[a]t the time of the collision, our vehicle was lost and not traveling in the correct direction on the highway to reach the SUNY Oneonta campus.”

In assessing whether a litigant has failed to state a cause of action, “[the Court] must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory” (Sokoloff v Harriman Estates Dev. Corp., 96 NY2d 409, 414 [2001]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]).

“As the party seeking summary judgment, defendant ha[s] the initial burden of establishing its defense sufficiently to warrant an award of judgment in its favor as a matter of law” (Antonucci v Emeco Indus., 223 AD2d 913, 914 [1996]). “The burden is not met by . . . pointing to gaps in plaintiffs’ proof” (id.). Nor does a movant meets its burden by “rely[ing] on . . . evidence submitted for the first time in its reply papers” (Barrera v MTA Long Island Bus, 52 AD3d 446, 447 [2008]; see also Rengifo v City of New York, 7 AD3d 773 [2004]; Migdol v City of New York, 291 AD2d 201 [2002]). “Rather, a defendant must affirmatively demonstrate the merit of its defense ‘ . . . by tender of evidentiary proof in admissible form’ ” (id., quoting Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “[T]he issue on summary judgment is not what the plaintiff will be able to prima facie establish at trial but whether the movant has prima facie established his entitlement to summary judgment by eliminating all material issues raised by the pleadings” (S.S. v New York City Health & Hosps. Corp. [Harlem Hosp.], 11 Misc 3d 1071(A), *3 [2006]).

The Court concludes that, even if liability cannot be premised upon the Rugby Club having financing through the Student Association, as defendant contends, defendant has nonetheless failed to meet its initial burden to establish as a matter of law that it did not otherwise owe a duty to claimant. “It is well established that before a defendant may be found liable for negligence, a duty must exist, the breach of which is the proximate cause of plaintiff's injury” (Vogel v West Mountain Corp., 97 AD2d 46, 48 [1983]). In Hores v Sargent (230 AD2d 712 [1996]), a student was injured while participating in a bicycle trip that was organized, planned and supervised by a Community College’s Office of Student Activities. It was held that the school “possessed a sufficient degree of control over the subject event, and thus was under a duty to take reasonable precautions for the safety of the participants.” In contrast, the court in Vogel v West Mountain Corp., (supra), held that the sponsor of a race was not liable for injuries sustained by one of the participants because it did not direct or control the event. Additionally, in Wankmuller v State of New York, (Ct Cl, UID # 2000-007-055, Sept. 18, 2000, Bell, J.), a student member of SUNY Albany’s “Outing Club” died after falling down a 150 foot rock slide while on a hike sponsored by the club. Summary judgment dismissing the claim was denied. The court concluded, in relevant part, that a determination as to “whether the level of control retained by SUNY Albany [over the club, vis-a-vis the Student Association,] is an adequate base upon which to premise liability will be best addressed after both parties have had a full opportunity to present proof at trial” (id. at 2).

Here, in addition to alleging that the Rugby Club was a recognized student organization provided with funding by the Student Association of SUNY Albany, claimant also alleges that she sustained injuries as a result of the negligent conduct of the driver and that of the State of New York in arranging and failing to provide appropriate transportation for the event and in failing to properly supervise and/or exercise control over the Student Association and the Rugby Club. Defendant now argues that claimant has failed to set forth sufficient information to show that defendant had active control or participation in the activities of the Rugby Club.

As movant, defendant has the burden to establish, “by tender of evidentiary proof in admissible form” (Antonucci v Emeco Indus., supra, quoting Zuckerman v City of NewYork, supra), that it did not have control or supervision over the activities of the Rugby Club. The Court finds that defendant has not offered sufficient prima facie proof to meet its burden. Defendant does not offer a supporting affidavit from an individual with personal knowledge of whether SUNY Albany exercised any control or supervision over the activities of the Rugby Club in its moving papers. Rather, defendant offers as an exhibit to its reply affirmation the affidavit of Michael Jaromin, Director of Student Involvement in the Office of Student Involvement & Leadership at SUNY Albany. Although Jaromin does discuss the absence of control by SUNY over the activities of the Rugby Club, the Court cannot consider such proof, offered for the first time as part of defendant’s reply papers, in assessing whether defendant has established its prima facie burden (see Barrera v MTA Long Island Bus, supra; see also Rengifo v City of New York, supra; Migdol v City of New York, supra). Nor can defendant rely upon alleged gaps in claimant’s proof to meet its burden (see Antonucci v Emeco Indus., supra at 914). Accordingly, defendant has not met its initial burden on the motion to “eliminat[e] all material issues raised by the pleadings” (S.S. v New York City Health & Hosps. Corp. [Harlem Hosp.], supra).

Notably, defendant refers to the court’s decision in Vogel v West Mountain Corp., (supra), in support of its motion. However, in Vogel, (supra at 49-50), there was an ample record before the court, including deposition testimony, from which the court was able to determine that the sponsor of the athletic event played no part in the design of the slope or supervision and control over the race. Moreover, like the Court in Wankmuller v State of New York, (supra), this Court also concludes that SUNY Albany’s level of control or supervision over the activities of the Rugby Club will be better assessed after the parties have had a full opportunity to conduct discovery.

Finally, claimant seeks an order from the Court compelling defendant to accept service of her supplemental affirmation in opposition to summary judgment wherein she asserts the unpleaded cause of action of vicarious liability based upon the doctrine of respondeat superior. In considering claimant’s motion, the Court is mindful that “modern practice permits a plaintiff to successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by the plaintiff’s submissions” (Comsewogue Union Free School Dist. v Allied-Trent Roofing Sys., Inc., 15 AD3d 523, 524 [2005]). The Court also recognizes that an issue of fact may exist with respect to whether the student driver of the vehicle was a servant of defendant at the time of the accident (see Fils-Aime v Ryder TRS, Inc., 40 AD3d 917 [2007]; see also Robinson v Downs, 39 AD3d 1250 [2007]). However, in light of the foregoing decision to deny defendant’s motion for summary judgment, the Court denies, as moot, claimant’s motion to compel defendant to accept service of her supplemental affirmation.

Accordingly, it is hereby

ORDERED that M-73930 is denied; and it is further

ORDERED that M-74658 is denied as moot.


September 15, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion dated September 7, 2007;
  1. Affirmation in Support of Defendant’s Motion For Summary Judgment by Glenn C. King, AAG, dated September 7, 2007 with exhibits;
  1. Affirmation in Opposition to Defendant’s Motion for Summary Judgment by Laura M. Jordan, Esq., dated October 10, 2007 with exhibits;
  1. Affidavit of Jennifer Lee, sworn to on October 10, 2007;
  1. Reply Affirmation in Support of Defendant’s Motion for Summary Judgment by Glenn C. King, AAG, dated November 2, 2007 with exhibits;
  1. Order to Show Cause dated March 12, 2008;
  1. Affirmation in Support of Claimant’s Motion to Supplement Opposition to Defendant’s Motion for Summary Judgment by John H. Fisher, Esq., dated March 6, 2008 with exhibits; and
  1. Affirmation in Opposition to Claimant’s Motion to Compel Defendant to Accept Late Service of Affirmation by Glenn C. King, AAG, dated March 26, 2008.