Claim dismissed on pre-answer motion for failing to state a cause of action against the State of ew York, based on unopposed motion alleging that state was not responsible for area where accident occurred. The court cautioned that if the motion had not been unopposed, defendant's submission would have been inadequate on a CPLR 3211(a)(7) motion because defendant failed to submit the evidence upon which the conclusion that the State was not responsible was based, only an affidavit from a State employee stating he had reviewed maps and records and concluded that the State was not responsible.
|Claimant(s):||JANE GERBER and ROGER GERBER|
|Claimant short name:||GERBER|
|Footnote (claimant name) :|
|Defendant(s):||NEW YORK STATE, NEW YORK STATE DEPARTMENT OF TRANSPORTATION and WESTCHESTER/BRONX RIVER PARKWAY AUTHORITY|
|Footnote (defendant name) :|
|Judge:||STEPHEN J. MIGNANO|
|Claimant's attorney:||FINGER & FINGER, P.C.
(no appearance on motion)
|Defendant's attorney:||ANDREW M. CUOMO, ATTORNEY GENERAL
By: Dian Kerr McCullough, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 6, 2010|
|See also (multicaptioned case)|
Defendants move for an order dismissing the claim for (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction over the defendants and (3) failure to state a cause of action. Claimants, although granted an adjournment of the motion, did not submit any papers in opposition.
The claim alleges that Jane Gerber was injured in a trip-and-fall incident "at or near the entrance to the Hartsdale train station of the metro north railroad . . . just past the bridge over the Bronx River Parkway" (Claim, para. 2).
In support of the motion to dismiss, defendants submit the affidavit of Thomas Mason, Assistant Resident Engineer for Westchester County with the State Department of Transportation. Mr. Mason advises that he is familiar with the sidewalk in question and that he has examined various unidentified DOT maps and records and has "determined" that the State of New York is not responsible for the sidewalk.
The court notes that defendants failed to submit any of the maps and records referred to by Mr. Mason. A legally conclusory statement from a State employee that he has examined records and determined that the State is not responsible would normally be insufficient to resolve a controverted issue of fact on a motion to dismiss pursuant to CPLR 3211. However, claimants have chosen not to dispute defendants' allegations, presumably because they are satisfied that the allegations are accurate.
The motion is denied insofar as it seeks dismissal for lack of subject matter or personal jurisdiction over the State of New York. Although neither the Department of Transportation nor the "Westchester/Bronx River Parkway Authority" is a proper defendant in this court - the former because it is a State agency that lacks independent legal existence and the latter because there is no such entity - there is no jurisdictional infirmity with respect to the claim against the State. However, based on the uncontradicted allegations in defendants' submission, the court determines that claimants have not stated a cause of action against the State of New York and the claim is therefore dismissed pursuant to CPLR 3211(a)(7) (Parsippany Constr. Co., Inc. v. Clark Patterson Assoc., P.C., 41 AD3d 805 ; Meyer v Guinta, 262 AD2d 463 ).
January 6, 2010
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Notice of Motion, Affirmation and Exhibits