Opinion
# 2016-018-700 Claim No. 126599 Motion No. M-87485
01-04-2016
MAIKEL GALINDO v. NEW YORK STATE CANAL CORPORATION
AMDURSKY, PELKY, FENNELL & WALLEN, P.C. By: Joseph E. Wallen, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General
Synopsis
Granted Defendant's motion to dismiss for failure to serve New York State Thruway Authority as a necessary party for claim against Canal Corporation.
Case information
| UID: | 2016-018-700 |
| Claimant(s): | MAIKEL GALINDO |
| Claimant short name: | GALINDO |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE CANAL CORPORATION |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126599 |
| Motion number(s): | M-87485 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | AMDURSKY, PELKY, FENNELL & WALLEN, P.C. By: Joseph E. Wallen, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Edward F. McArdle, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 4, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant brings a pre-answer motion to dismiss the claim for lack of subject matter jurisdiction (CPLR 3211 [a] [2]), failure to state a cause of action (CPLR 3211 [a] [7]), and lack of personal jurisdiction (CPLR 3211 [a] [8]). Claimant opposes the motion.
On August 17, 2015, Claimant filed a claim with the Clerk of the Court against the New York State Canal Corporation seeking compensation for property damage he sustained on May 30, 2015. On that day, at approximately 1:25 p.m., Claimant alleges the lock operator at Lock 0-8 in Oswego, New York, allowed his boat to hit the chamber wall, breaking the mast of the boat. The damage, it is alleged, was due to the negligence of the operator of the lock chamber. The cost to repair the boat was $17,625.17. Claimant served the Attorney General by certified mail, return receipt requested on August 17, 2015.
By this motion, Defendant argues that this Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the Defendant, because Claimant failed to serve the New York State Thruway Authority (NYSTA) as required by Court of Claims Act section 11 (a) (ii). The New York State Canal Corporation, Defendant argues, is a subsidiary of the New York State Thruway Authority, and it must be served in addition to the Attorney General. Defendant submits an affidavit from Marcy Dikeman, a Legal Assistant in the Legal Department of the NYSTA who is a custodian of the legal papers received by the NYSTA and the Canal Corporation, including notices of intention and claims. She indicates that she has searched the records, and the NYSTA was never served with either a Notice of Intention or a claim by this Claimant.
Claimant argues that the NYSTA did not have to be served because the Canal Corporation is a separate, independent entity and may be sued in its own right. This claim, Claimant states, only involves the Canal Corporation and the operation of canal equipment, not NYSTA.
Court of Claims Act section 11 (a) (i) provides that a claim shall be filed with the Clerk of the Court, and a copy shall be served personally or by certified mail, return receipt requested upon the Attorney General. Section 11 (a) (ii) provides that in any action brought against NYSTA, the City University of New York (CUNY), or the New York State Power Authority, a copy of the claim must be served personally or by certified mail, return receipt requested, upon such defendant.
Prior to 1992, the Canal Corporation was under the auspices of the Department of Transportation. In 1992, the Legislature enacted Public Authorities Law section 382, a subsection of Title 9, entitled "New York State Thruway Authority," creating the Canal Corporation as a public benefit corporation and subsidiary of the NYSTA. Canal Law Article 1-A, also enacted in 1992, transferred from the Department of Transportation the powers and duties of the New York State Canal Corporation and merged them with the NYSTA (Canal Law § 5). The jurisdiction over the New York State Canal System and over all its assets, equipment, and property was transferred to the NYSTA. Section 382 of the Public Authorities Law, sets forth the powers and duties of the Canal Corporation and authorizes it to sue and be sued. That statute specifically states that the corporation shall be subject to suit in the same way as described in Public Authorities Law section 361-b (Public Authorities Law § 382 [2], [7] [b]), which directs how the NYSTA may be sued. Section 361-b provides that NYSTA may be sued exclusively in the Court of Claims for its tortious acts and for breach of contract subject to the provisions of the Court of Claims Act with respect to claims against the State (Public Authorities Law § 361-b). The section also provides that "[a]ll awards and judgments arising from such claims shall be paid out of moneys of the authority." (Id.).
Although, section 361-b does not, specifically, indicate that the NYSTA has to be separately served with a notice of intention and a claim in order to commence an action in the Court of Claims, in 1999 the legislature amended the Court of Claims Act to specify that actions asserting claims against CUNY, NYSTA, or the Power Authority must be served upon that entity in addition to the service on the Attorney General (Court of Claims Act § 11 [a] [ii] as amended by L. 1999, c. 439). This codified the common law that the NYSTA was an autonomous public corporation with a separate independent existence from the State, requiring independent service because the Attorney General has not been made an agent for service (Cantor v State of New York, 43 AD2d 872, 873 [3d Dept 1974]; Macfarland-Breakell Bldg. Corp., v New York State Thruway Auth., 123 Misc 2d 307, 308 [Ct Cl 1984]).
When the legislation was drafted to amend the Court of Claims Act to add section 11 [a] [ii], the original version that passed both the Senate and Assembly included language also requiring service upon the Olympic Regional Development Authority as well as "any other defendant, other than the State of New York, over whom jurisdiction lies in the court of claims." Before the legislation was signed into law, those provisions were excluded leaving the requirement for independent service on only the three entities, CUNY, NYSTA, and the Power Authority. Included as part of the legislative bill jacket for that statute, is a letter from Sharon P. O'Conor, the then General Counsel of the NYSTA, to James M. McGuire, Counsel to the then Governor, expressing concern that the proposed change removing the language referencing "any other defendant" might cause confusion over whether the Court of Claims has jurisdiction over the Canal Corporation and the proper manner of service. Since the legislation that was passed and signed into law did not include that provision, it can be inferred that the legislature found the need to specify jurisdiction or separate service on the Canal Corporation to be unnecessary (McKinney's Cons Laws of NY, Book 1, Statutes, § 240; Patrolmen's Benevolent Assn. of City of N.Y. v City of New York, 41 NY2d 205, 208-209 [1976]). Although this could be interpreted to mean that only service on the Attorney General is necessary, that would be inconsistent with the language in Public Authorities Law sections 382 [2] and 361-b. Reading those statutes with Court of Claims Act section 11 (a) (ii) leads to the conclusion that to sue the Canal Corporation in the Court of Claims, the NYSTA must be served with a copy of the claim in addition to the Attorney General. Here, the failure to serve the NYSTA results in a jurisdictional defect and deprives this Court of the authority to hear this claim.
Letter dated August 30, 1999, from Sharon P. O'Conor, General Counsel, New York State Thruway Authority, to James M. McGuire, Counsel to the Governor, Bill Jacket, L. 1999, ch 439, at 8-9.
Although the failure to serve the NYSTA was only an issue of personal jurisdiction prior to the enactment of Court of Claims Act section 11 [a] [ii], since service upon the NYSTA is now specifically part of the requirements for bringing an action in the Court of Claims, and the issue was timely raised by Defendant, it raises issues of subject matter jurisdiction (Johnson v State of New York, 71 AD3d 1355 [3d Dept 2010]; Welch v State of New York, 286 AD2d 496 [2d Dept 2001]; Klopfe v New York State Thruway Auth., 177 AD2d 1059 [4th Dept 1991]).
Even if service had been proper, Defendant also argues that the claim fails to state a cause of action because section 120 of the Canal Law permits claims for damages arising out of the use or management of the New York State Canal Corporation, but expressly excludes those claims "arising from damages resulting from the navigation of canals . . ." (Canal Law § 120). The State has retained its sovereign immunity related to claims for damages arising from navigation of its canals, and the term navigation has been viewed broadly (Locke v State of New York, 140 NY 480 [1894]). Navigation has been found to include, "the passage of boats through locks or under draw or lift bridges, and if injury should occur while passing through a lock, through the neglect of the agent or servant of the State, whose duty it was to open and close it, such injury would in a just sense result from the navigation of the canals." (Id., at 483). Thus, claims involving injuries or property damage sustained on canal waters have been entirely unsuccessful (see Arquette v State of New York, 190 Misc 2d 676, 691 [Ct Cl 2001]).
Here, Claimant asserts that his sailboat was damaged while in the lock chamber when the operator left the lock unattended after he opened the valves to let the boat down and the boat hit the chamber wall breaking the mast. It cannot be reasonably argued based upon Locke, 140 NY at 483, that the wrongdoing did not occur from navigation of the canal. This is so, even though the boat was not in motion at the time, and was in the lock chamber (see Zorn v State of New York, 45 AD 163, 165-166 [3d Dept 1899]; Marston v State of New York, 41 Misc 3d 725 [Ct Cl 2012]; Glens Falls Ins. Co. v State of New York, 188 Misc 684 [Ct Cl 1947]).
Accordingly, based upon the foregoing Defendant's motion must be GRANTED and the claim DISMISSED.
January 4, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court considered the following documents in deciding this motion: 1) Notice of Motion. 2) Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, with attachments thereto. 3) Responding affidavit of Joseph E. Wallen, Esquire, in opposition, sworn to October 16, 2015.