New York State Court of Claims

New York State Court of Claims

MACEDO v. THE STATE OF NEW YORK, #2008-033-320, Claim No. 112884, Motion Nos. M-75236, CM-75339


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):
James J. Lack
Claimant’s attorney:
Law Offices of Lawrence P. BiondiBy: Lawrence P. Biondi, Esq.
Defendant’s attorney:
Traub Lieberman Straus & Shrewsberry LLPBy: Jeffrey Briem, Esq.
Third-party defendant’s attorney:

Signature date:
December 23, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim is brought by Jonas Macedo (hereinafter "claimant") due to alleged violations of the New York State Labor Law. The claim alleges violations of Labor Law §§200, 240(1) and 241(6). The accident took place on June 20, 2005, on the Long Beach Bridge, Long Beach, New York.

Defendant seeks to dismiss the claim pursuant to CPLR 3211 and Court of Claims Act §§10 and 11. In the alternative, defendant moves this Court for summary judgment pursuant to CPLR 3212[1]. Defendant argues the claim fails to state with specificity the location of claimant’s accident.

Claimant opposes defendant’s motion and cross-moves for partial summary judgment based upon his claim pursuant to Labor Law §240(1).

The requirements of the Court of Claims Act are jurisdictional in nature and must be strictly construed (Lurie v State of New York, 73 AD2d 1006, aff’d 52 NY2d 849). The purpose of these requirements is to give the State prompt notice of an occurrence and an opportunity to investigate the facts and prepare a defense. There must be sufficient detail to enable the State to investigate (Schwartzberg v State of New York, 121 Misc 2d 1095, aff’d 98 AD2d 902). Pursuant to the Court of Claims Act, a claim must include the time when and place where the claim arose, the nature of the claim, items of damage or injuries sustained as well as the total sum claimed. If the original document does not include all that is essential to constitute a claim, the document is jurisdictionally defective (Grande v State of New York, 160 Misc 2d 383). The claim is subject to dismissal and “a lack of prejudice to the State is an immaterial factor” (Byrne v State of New York, 104 AD2d 782, 785, lv denied 64 NY2d 607).

It is well settled that absolute exactness is not required, only a statement with sufficient definiteness to give the defendant an opportunity to investigate the claim (Heisler v State of New York, 78 AD2d 767). “The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State . . . Conclusory or general allegations of negligence that fail to adduce the manner in which the claimant was injured and how the State was negligent do not meet its requirements” (Heisler at 767 - 768). The location of the accident must be sufficiently identified to enable the Defendant to conduct a meaningful investigation (Grande).

In Grande, claimant was involved in a motor vehicle accident when a tree fell on his motor vehicle. Claimant identified the location as traveling along Route 25A when a tree fell on his car. In another paragraph, claimant mentioned the Village of Brookville. The court inferred that the accident happened on Route 25A in Brookville. Given the lack of traveling direction, intersecting roadways or any other landmark the court found the claim to be jurisdictionally defective.

In this case, defendant argues claimant’s description of the location is as vague as the description in Grande. The claim indicates the incident occurred “beneath the road surface on the Long Beach Bridge”. Defendant argues that Long Beach Bridge is not one but two bridges, running side by side. Defendant states claimant does not indicate which span he was working on or under which part of the roadway claimant was working. However, since claimant indicates he was beneath the bridge, there is a limited amount of space that the bridge occupies. Defendant is able, given the description of the location, to conduct a meaningful investigation.

Defendant also argues that it is immune from the claim because the project at the Long Beach Bridge was performed by the State as part of its governmental function.

In the ownership of property, the State of New York serves two functions. The first role casts the State in a proprietary function and the other role is that of a government function (Miller v State of New York, 62 NY2d 506). The functions are not mutually exclusive. Instead, the functions are opposite ends of a continuum (see Miller).
A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category. Miller at 511 - 512.

In regard to its proprietary function, "the State ‘must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ " (Basso v Miller, 40 NY2d 233, 241, quoting Smith v Arbaugh’s Rest., 469 F2d 97, 100)" (Preston v State of New York, 59 NY2d 997, 998). The State’s proprietary function subjects it to the same rules of liability as apply to a private citizen.

On the other end of the continuum, is the State’s governmental function. The State "remains immune from negligence claims arising out of governmental functions such as police protection unless a special relationship with a person creates a specific duty to protect, and that person relies on performance of that duty" (Price v New York City Hous. Auth., 92 NY2d 553, 557 - 558). In the case at bar, defendant’s function falls into the proprietary category.

Defendant asks this Court to dismiss claimant’s cause of action pursuant to Labor Law §200. Defendant argues it did not direct or control claimant’s work and it did not create the alleged defective condition.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

From the evidence presented to the Court, it is clear significant issues of fact exist in regard to defendant’s supervisory control, the existence of violations of the industrial code, and the need for an overhead line to attach the safety harness. In addition, there are several questions as to claimant’s immigration status and the documents presented to his employer. The only way to determine the outcome of this matter is to allow the parties to present their evidence and experts at trial.

Based upon the foregoing, defendant’s motion and claimant’s cross-motion are denied.

December 23, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].The following papers have been read and considered on defendant’s motion and claimant’s cross-motion: Notice of Motion dated July 11, 2008 and filed July 15, 2008; Affirmation in Support of Motion for Summary Judgment of Jeffrey Briem, Esq. with annexed Exhibits A-X dated July 11, 2008 and filed July 15, 2008; Notice of Cross- Motion dated August 4, 2008 and filed August 7, 2008; Affirmation in Support of Claimant’s Cross-Motion for Summary Judgment and in Opposition to Defendant’s Motion of Lawrence P. Biondi, Esq. with annexed Exhibits 1-14 dated August 4, 2008 and filed August 7, 2008; Reply Affirmation in Further Support of Motion for Summary Judgment and in Opposition to Cross Motion of Jeffrey Briem, Esq. with annexed Exhibit A dated August 12, 2008 and filed August 13, 2008.