Opinion
# 2018-049-027 Claim No. 129423 Motion No. M-92834
12-12-2018
JEFFREY P. SEGAL v. THE STATE OF NEW YORK
Matthew B. Segal, Esq. Barbara D. Underwood, New York State Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General
Synopsis
Case information
| UID: | 2018-049-027 |
| Claimant(s): | JEFFREY P. SEGAL |
| Claimant short name: | SEGAL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The New York State Department of Transportation was named as a defendant along with the State of New York in the caption to this claim. Since the State is the only proper defendant in this action, the caption is hereby amended sua sponte to reflect the only proper defendant (see Taylor v State, 160 Misc2d 120, 120 n 1 [Ct Cl, 1994]). |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129423 |
| Motion number(s): | M-92834 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Matthew B. Segal, Esq. |
| Defendant's attorney: | Barbara D. Underwood, New York State Attorney General By: Edward J. Curtis, Jr., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 12, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In a claim filed March 13, 2017, claimant Jeffrey Segal seeks damages for personal injuries he allegedly sustained on January 22, 2016, as a result of being struck by a motor vehicle while he was standing on the sidewalk at Nostrand Avenue at or near its intersection with Avenue X in Brooklyn, New York. The claim alleges that the injury was due to the negligence of defendant State of New York, and in particular the New York State Department of Transportation ("DOT"), in its "ownership, operation, control design, creation, management, inspection, authorization, maintenance, repair and use of the road and sidewalk." Defendant now moves for summary judgment and to dismiss the claim.
In the claim, Segal alleges that the accident took place on January 22, 2017. The remaining documents refer to December 22, 2016 as the date of the accident.
Claimant indicated at a preliminary conference that there is a parallel action pending in Supreme Court against the City of New York and other defendants.
The basis on which the motion has been brought is a matter in dispute, as is discussed further below.
The State contends that it did not and does not own, control, or manage the intersection in question. Its answer in this matter, verified by counsel on May 10, 2017, sets forth a defense to this effect, stating that "the State of New York does not own, operate or maintain the situs of the accident alleged in the claim, New York City Streets Nostrand Avenue and Avenue X in Brooklyn" (Curtis Aff, Ex. B at ¶ 11). According to counsel's affirmation on the present motion, on June 14, 2018 defendant provided claimant's attorney with a copy of the affidavit of Prakash Roy, a DOT Region 11 Claims Engineer and Records Access Officer, stating that the intersection of Notstrand Avene and Avenue X in the City of Brooklyn, as described in the Claim, "is not part of the New York State arterial highway system and is not within the jurisdiction of State DOT"
An arterial highway is a highway "running through a locality and connecting it to State highways" (Nowlin v City of New York, 81 NY2d 81, 86 [1993]). Such highways are governed by article XII-B of the Highway Law (see generally Amerino v State of New York, UID No. 2012-049-015 [Ct Cl, Weinstein, J., Mar. 26, 2012]). This and other decisions of the Court of Claims may be found on the Court's website: www.nycourts.gov/courts/nyscourtofclaims/.
(id. ¶ 12, Ex. D at ¶ 5).
On this motion, defendant argues that claimant has not pled any facts to suggest that the intersection at issue, which is one of more than 4,000 intersections in Kings County, is in any way owned, operated or managed by New York State, and defendant has shown that it is entitled to summary judgment on that ground (id. ¶ 17). In support of its motion, the State provides the Roy affidavit to show that the DOT has no jurisdiction over this particular intersection, as well as printouts from Google Maps and Google Earth for the location at issue. According to defendant, since the State of New York does not own, control, or manage the intersection, claimant has failed to state a cause of action, summary judgment should be granted, and the claim should be dismissed (id. ¶ 18).
I may take judicial notice of such evidence for this purpose, and thus they are properly considered on a motion for summary judgment (see Lovelace v RPM Ecosystems Ithaca, LLC, 42 Misc 3d 1235[A] [Sup Ct, Tompkins Cty 2014] [citing numerous cases for proposition that "Courts "commonly use internet mapping tools to take judicial notice of distance and geography"]). These documents have little relevance on the present motion, though, except to show that the location at issue is not a highway, but a local road, a point that is apparent anyway from the claim's allegation that claimant was walking on the sidewalk when he was injured.
Claimant, through the affirmation of his attorney, Matthew Segal, Esq. ("Segal Aff"), argues that this motion should be viewed as brought under CPLR 3211, and does not meet the standard for dismissal under that rule. To the extent the motion seeks summary judgment, claimant argues that defendant has not produced documents in response to discovery, or in support of its motion, to conclusively demonstrate that defendant "did not build these roadways, engage in any maintenance or repair work, survey or studies, or used State money to fund such activities" (Segal Aff ¶ 23). Claimant maintains that, due to the lack of discovery from defendant, "pursuant to CPLR 3212(f) the instant application for summary judgment should be denied as facts essential to the opposition of said application exist but cannot be fully stated at this point" (id. ¶ 24). Claimant further argues that summary judgment would be premature at this juncture because defendant has not provided any discovery information that fully outlines or eliminates the extent of its potential liability in building, maintaining and/or repairing the subject intersection (id. ¶ 26).
CPLR 3212(f) provides that "[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just."
In a reply affirmation by counsel ("Reply Aff"), defendant again explains that it served a Notice of Motion for summary judgment under CPLR 3212 and is relying on the affidavit of Prakash Roy to support the motion (Reply Aff ¶ 9, n.1). Defendant contends that the "issues of fact" alluded to by claimant are nothing more than speculation (id. ¶ 9). It also argues that the claim does not set forth any factual allegations to suggest that the defendant built, maintained, repaired, surveyed, or studied the intersection in question, or that any State funds were involved in any such activities (id. ¶ 21).
Discussion
I. The Nature of Defendant's Motion
Defendant's notice of motion states that the motion is seeking "judgment pursuant to Rule 3212 of the [CPLR] dismissing the Claim . . . on the ground that [it] fails to state a cause of action, and for such other and further relief as this Court may deem proper." The affirmation in support states that the motion seeks a judgment "pursuant to Rule 3211 and 3212" dismissing the claim "on the ground that [it] fails to state a cause of action" (Supporting Affirmation of Assistant Attorney General Edward Curtis ["Curtis Aff"] in Supp ¶ 2). The body of the motion cites and applies the standard for summary judgment set forth in CPLR 3212(a), but also argues that the pleadings do not set forth a sufficient basis for the State's liability.
For his part, claimant maintains that this motion should be construed as a motion to dismiss upon " a defense . . . founded upon documentary evidence" under CPLR 3211(a)(1) (see Opposing Affidavit of Attorney Matthew Segal ["Segal Aff"] ¶ 8).
A notice of motion, under CPLR 2214, must among other things specify the relief demanded and grounds upon which relief shall be sought. Defendant's notice of motion specifically references CPLR 3212, but also the standard for relief ("failure to state a cause of action") under CPLR 3211(a)(7). Any confusion as to whether defendant is seeking summary judgment, however, is removed by the specific reference to CPLR 3212 in counsel's affirmation (see Curtis Aff ¶ 2), the statement in paragraph 13 of the affirmation of counsel that defendant is seeking "summary judgment," and counsel's extensive recitation of the summary judgment standard and applicable caselaw (id. ¶¶ 13-16). Thus, there is no reasonable question that defendant is seeking summary judgment, and claimant's own submission specifically addresses whether defendant has met the CPLR 3212 standard (see Segal Aff ¶¶ 19-25). Claimant's argument that the Court should not "convert" this motion to one for summary judgment under CPLR 3211(c) is unavailing, as the motion itself clearly seeks relief under CPLR 3212 (see Smithers v County of Oneida, 138 AD3d 1504, 1504 [4th Dept 2016] [court may treat motion as one for summary judgment when submissions indicated that defendant was "expressly seeking summary judgment or submitting facts and arguments clearly indicating that they were deliberately charting a summary judgment course" and plaintiff was "on notice" of such]).
To the extent the motion also references CPLR 3211 and the CPLR 3211(a)(7) standard, that simply sets forth an alternative ground on which the State is seeking relief. As to claimant's argument that the motion should be construed as brought under CPLR 3211(a)(1), I see no reference to that provision or its language in defendant's filings, and thus no reason to read it as asserting such basis for relief.
I turn, then, to the merits of defendant's motion.
II. Summary Judgment
To prevail on its summary judgment motion, the State must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any issues of material fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (id.).
In general, the State of New York, as with any public entity, "is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition and that liability will flow for injuries resulting from a breach of that duty" (Levine v New York State Thruway Authority, 52 AD3d 975, 977 [3d Dept 2008]; see also Chang v City of New York, 142 AD3d 401, 402 [1st Dept 2016] [same]; Finn v Town of Southampton, 289 AD2d 285, 286 [2d Dept 2001] [same]; Vehicle and Traffic Law § 1621[a] ). For such a duty to exist, however, the State must own or control the roadway in question, or make "special use" of it (see Ladd v Battle, 231 AD2d 884, 884 [4th Dept 1996] [noting that duty of care extends only to area of highway that public entity owns or controls]; Federoff v Camperlengo, 215 AD2d 806, 807 [3d Dept 1995] [same]; see also Donatien v Long Island College Hospital, 153 AD3d 600, 600-01 [2d Dept 2017] ["Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control or special use of the property"]).
Here, by the affidavit of Mr. Roy, defendant has presented admissible evidence that the State is not the owner of the intersection of Nostrand Avenue and Avenue X in the County of Kings, City of New York. Mr. Roy attested that this location, "is not part of the New York State arterial highway system and is not within the jurisdiction of the State DOT" (Curtis Aff, Ex. D ¶ 5).
Claimant argues that defendant has not demonstrated that the State "did not build these roadways, engage in any maintenance or repair work, survey or studies, or used State money to fund such activities" (Segal Aff ¶ 23). On a summary judgment motion the State is not required, however to "to prove a negative on an issue as to which [it] does not bear the burden of proof" (Martinez v Hunts Point Co-op. Market, Inc., 79 AD3d 569, 570 [1st Dept 2010]). I find Roy's affidavit sufficient to show it is not liable, and that defendant need not (and indeed, cannot) rebut every hypothetical connection it may have to this spot of land. The State has thus met its prima facie burden of demonstrating that it is not liable for claimant's alleged injuries.
The Roy affidavit is notably lacking in certain detail. It would be better practice if defendant's affidavit explained the basis for affiant's knowledge, by providing information on his responsibilities or the manner in which he determined defendant's lack of ownership. Nevertheless, I find that in this case that the affidavit meets defendant's prima facie burden regarding a location that, on its face, bears no apparent connection with the State.
That is particularly the case here where defendant points out - and claimant does not dispute - that the location of the accident in question is a plain vanilla intersection in Brooklyn. There is nothing on the face of the pleading or in claimant's submission which even hints at State involvement with or ownership of the location at issue. I do not find, and the law does not require, that defendant rebut every theoretical tie it might have to a location, without any indication of a State role in the property.
Claimant's contention that summary judgment should be denied pursuant CPLR 3212(f) (see supra n 6), until he has an opportunity to complete discovery, is supported by nothing more than counsel's bald claim that, if discovery were to continue, there is a potential that evidence may be produced to demonstrate that defendant built the intersection, engaged in maintenance or repair work there, or surveyed or conducted a study of the intersection. However, in opposing a motion for summary judgment prior to the completion of discovery under CPLR 3212(f), it is insufficient for a party to merely offer "hope that evidence sufficient to defeat the motion might be uncovered during the discovery process" (Lamore v Panapoulos, 121 AD3d 863, 864 [2d Dept 2014]; see also Savage v Quinn, 91 AD3d 748, 750 [2d Dept 2012] [same]; Safier v Saggio Restaurant Inc., 151 AD3d 543, 544 [1st Dept 2017] [same]). Indeed, CPLR 3212(f) cannot be used for a "fishing expedition premised upon surmise conjecture and speculation" (Kennerly v Campbell Chain Co., 133 AD2d 669, 670 [2d Dept 1987]; see also Markov v Spectrom Group Intern, Inc., 136 AD3d 413, 414 [1st Dept 2016] [CPLR 3212(f) "may not be used as a means to embark upon a 'fishing expedition' to explore the possibility of fashioning a viable cause of action against the [defendant]").
Counsel does not point to any factual information that would reasonably support an inference that further discovery will unearth the information sought. The mere hope that claimant will uncover evidence to prove a connection between the defendant and the intersection that could give rise to liability provides no basis under CPLR 3212(f) for postponing a decision in defendant's favor (see Lamore, 121 AD3d at 864).
Accordingly, it is
ORDERED that defendant's motion no. M-92834 for summary judgment be granted, and that claim no. 129423 be dismissed.
In light of the foregoing, I need not consider defendant's argument that the claim is insufficient on its face.
December 12, 2018
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers Considered: 1. Defendant's Notice of Motion, Affirmation in Support and annexed exhibits. 2. Claimant's Affirmation in Opposition and annexed exhibits. 3. Defendant's Reply Affirmation.