New York State Court of Claims

New York State Court of Claims

SEMZOCK v. STATE OF NEW YORK, #2008-038-608, Claim No. 114233, Motion No. M-74720


Defendant’s motion for summary judgment denied as premature (CPLR 3212[f]) and without prejudice, where claimant had yet to obtain documents relevant to issues raised in defendant’s motion

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:
FLINK SMITH, LLCBy: Robert H. Coughlin, Jr.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael W. Friedman, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This claim, filed on September 14, 2007, seeks compensation for injuries claimant suffered when his motorcycle struck a car that was pulling out of a parking area (or “pull-off”) alongside Spier Falls Road in the Town of Moreau, in or near Moreau Lake State Park. The claim essentially alleges that the configuration of Spier Falls Road and the pull-off provided poor visibility, which caused the accident. The claim alleges, among other things, that defendant owned the land on which the pull-off was located, and that it designed, constructed and, among other things, maintained the pull-off. The claim further alleges that defendant was negligent in various respects related to signage on Spier Falls Road. Defendant filed this motion for summary judgment on March 25, 2008, seeking dismissal of the claim on the grounds that neither the State Department of Transportation nor the New York State Office of Parks, Recreation and Historic Preservation owned, maintained, or had any responsibility with respect to the area of the accident. Claimant opposes the motion on the grounds that it is premature because discovery has not been conducted, that defendant has failed to make its prima facie showing of entitlement to judgment, and, if a prima facie case has been made, material issues of fact exist that require denial of the motion.

The Court agrees with claimant’s contention that this motion is premature. Claimant’s notice of deposition of defendant’s agent(s) is dated November 20, 2007 (see Coughlin Affirmation, Exhibit D) and his discovery demands are dated February 14, 2008 (see id., Exhibits A and B). At the time defendant noticed this motion on March 24, 2008, defendant had not yet served responses to claimant’s discovery demands. Claimant’s discovery demands patently presumed, and did not demand documentation of, defendant’s ownership, control, maintenance or other responsibility for the area where the accident occurred. Defendant’s motion for summary judgment is based solely upon its asserted lack of ownership of the roadway and the pull-off. However, claimant’s opposition to the motion includes photographs that indicate the pull-off is within a “State Park Boundary” (see id. Exhibit I; Exhibits F-H). Although defendant’s reply asserts that the sign does not, in fact, demonstrate ownership of the pull-off (see Affidavit of Kurt Kress, sworn to May 19, 2008), the sign shown in claimant’s exhibits demonstrates that, at the least, claimant ought to be given the opportunity to conduct discovery on the issue of ownership or special use. To the extent that defendant seeks to conclusively demonstrate its non-ownership by submission of a license agreement and deeds (see Kress Affidavit), these documents do not patently demonstrate that the areas of property that are relevant to this claim are outside the boundaries of defendant’s property or that the State did not enjoy a special use of the property.

Here, “it appear[s] from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot [yet] be stated” (CPLR 3212 [f]). Thus, defendant’s motion for summary judgment will be denied without prejudice pending further discovery (see Ruiz v Griffin, 50 AD3d 1005 [2d Dept 2008]; Metichecchia v Palmeri, 23 AD3d 894, 895 [3d Dept 2005]), particularly because defendant has not demonstrated that claimant was not diligent or unreasonably delayed discovery (see Spellburg v South Bay Realty, LLC, 49 AD3d 1001 [3d Dept 2008]).[1] Moreover, it is notable that defendant’s reply papers do not address or dispute claimant’s contention that the motion is premature. Accordingly, it is

ORDERED, that Motion No. M-74720 is DENIED without prejudice.

July 30, 2008
Albany, New York
Judge of the Court of Claims

Papers considered:

(1) Notice of Motion for Summary Judgment, dated March 24, 2008;

(2) Affirmation in Support of Motion for Summary Judgment of Michael W. Friedman, AAG,

dated March 24, 2008, with Exhibits A-C (including Affidavits of Dominick Gabriel,

sworn to March 20, 2008 and James S. Sponable, sworn to January 11, 2008;

(3) Affirmation in Opposition of Robert H. Coughlin, Jr. dated April 30, 2008,with Exhibits A-J;

(4) Affidavit of Charles W. Semzock, sworn to April 30, 2008;

(5) Claimant’s Memorandum of Law in Opposition to Defendant’s Motion for

Summary Judgment, dated April 30, 2008, with Appendix A;
(6) Reply Affirmation of Michael W. Friedman, AAG, dated May 20, 2008 with Exhibits A-B (Affidavits of Dominick Gabriel, sworn to May 7, 2008 and Kurt Kress, sworn to May 19, 2008).

[1]. To the extent that the parties’ submissions indicate that various provisions of this Court’s scheduling order are without force and were amenable to being ignored, the parties are sorely mistaken. When served with a scheduling order, it is expected that parties before this Court will fully comply therewith or will timely seek adjournments.