New York State Court of Claims

New York State Court of Claims
SIMMS v. THE STATE OF NEW YORK, # 2010-030-504, Claim No. 117403, Motion No. M-77493


Summary judgment granted dismissing claim against Battery Park City Authority. Battery Park City Authority is a public benefit corporation sued in its own name in Supreme Court.

Case information

UID: 2010-030-504
Claimant(s): DAVID P. SIMMS
Claimant short name: SIMMS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 117403
Motion number(s): M-77493
Cross-motion number(s):
Claimant's attorney: FOLEY, GRIFFIN, JACOBSON & FARIA, LLP
Third-party defendant's attorney:
Signature date: January 6, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read and considered on defendant's motion for summary judgment dismissing the claim:

1,2 Notice of Motion, Affirmation in Support by Gwendolyn Hatcher, Assistant Attorney General and attached exhibits

3,4 Filed papers: Claim, Answer

David P. Simms alleges that on July 14, 2009, while performing construction work for his employer on a scaffold at a work site at 200 West Street in New York City - also known as the Goldman Sachs Headquarters - he fell and suffered serious injury due to various Labor Law violations. He states that the claim arises from "the acts or omissions of the defendant State of New York - Battery Park City Authority, as well as Goldman Sachs Headquarters, LLC and Tishman Construction Corp. NYC." [Claim No. 117403, 2].

In its answer, in addition to general denials, and a first defense that the State of New York does not own, operate or maintain the situs of the accident, the defendant also raised seven affirmative defenses, including a fourth affirmative defense noting that the State of New York and Battery Park City Authority are separate and distinct legal entities.

This present unopposed motion seeks dismissal pursuant to Civil Practice Law and Rules 3211 and/or summary judgment dismissing the claim pursuant to Civil Practice Law and Rules 3212 because the situs of the accident is not owned, operated or maintained by the State of New York and the apparent owner, the Battery Park City Authority, may not be sued in the Court of Claims.

The Court of Claims does not have jurisdiction to hear claims against individuals or entities other than the State of New York and its agencies, and certain other entities specified by statute. (Court of Claims Act 9; see e.g. Education Law 6224 [4]).

The Battery Park City Authority was created with the intent of ameliorating conditions in a perceived blighted area on the lower West side of the City of New York. [See Public Authorities Law 1971 et seq]. It is a public benefit corporation [Public Authorities Law 1973(1)] and may sue and be sued in its own name. [Public Authorities Law 1974(1)]. "Where the State Legislature has decided to confer on the Court of Claims jurisdiction over public authorities, it has done so specifically by statute; the absence of such a provision in the enabling legislation indicates that jurisdiction lies with courts of general jurisdiction . . . (citation omitted)." Gembala v Audobon Assn., Inc., 97 AD2d 345, 346 (4th Dept 1983). Additionally, the Battery Park City Authority must be served with a notice of claim as a condition precedent to any negligence lawsuit against it or its officers or employees in Supreme Court. See Public Authorities Law 1984; General Municipal Law 50-e. The fact that such procedure under the General Municipal Law is invoked has been found to be indicative of Legislative intent that Supreme Court be the forum for suit. See e.g. Prime Energy Solutions, Inc. v State of New York, 20 Misc 3d 750, 754 (Ct Cl 2008) Hampton v State of New York, 168 Misc 2d 1036, 1037 (Ct Cl 1995).

Finally, it has been held previously that the Battery Park City Authority is not subject to suit in the Court of Claims, and further that at least one specific building - not the one at issue here - is not owned, operated, maintained or otherwise controlled by the State of New York. [See Affirmation in Support, Exhibit C, Leong v Battery Park City Authority and the State of New York, Claim No. 99739, M-59153, unreported, (Lebous, J., April 30, 1999)].

In support of the present motion, defendant has included information obtained from the New York City Department of Finance, Office of the City Register, showing that the situs of the accident is leased to Goldman Sachs Headquarters LLC by Battery Park City Authority. [Affirmation in Support, 6, Exhibit B].

In a motion to dismiss a claim for failure to state a cause of action the movant is held to have conceded the truth of every fact alleged by the Claimant for purposes of the motion. 3211(a)(7) Civil Practice Law and Rules. Determination of the motion, generally, does not rest upon resolution of the ultimate facts, but rather on whether those facts asserted make out a claim. With regard to a motion for summary judgment, however, Civil Practice Law and Rules 3212(b) provides in pertinent part:

"A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the case of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact . . ."

Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine, material, issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York Univ. Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980). Given the lack of opposition to the motion, no dispute is raised as to the ownership of the building where claimant's fall occurred, nor is any independent nexus to State involvement created. While the use of only an attorney's affirmation with attached documents, rather than including an affidavit by a person with knowledge as well, is normally a perilous approach to seeking summary relief, where, as here, documentary proof shows entitlement to judgment as a matter of law, and no material triable issues of fact have been raised in opposition, it will marginally suffice.

Based on the foregoing, defendant's motion for summary judgment dismissing the claim is granted, and Claim number 117403 is in all respects dismissed.

January 6, 2010

White Plains, New York


Judge of the Court of Claims