Opinion
# 2018-040-090 Claim No. 129966 Motion No. M-92461
10-16-2018
AH TUA TEO and YETTA JEAN TEO v. THE STATE OF NEW YORK
GREENBERG & GREENBERG By: Mark D. Greenberg, Esq. REINER, SLAUGHTER, McCARTNEY & FRANKEL LLP By: Terrence E. McCartney, Esq. BARBARA D. UNDERWOOD Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG
Synopsis
State's Motion to Dismiss Claim on basis that accident did not occur at location owned, operated, maintained, or controlled by the State granted.
Case information
| UID: | 2018-040-090 |
| Claimant(s): | AH TUA TEO and YETTA JEAN TEO |
| Claimant short name: | TEO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | Caption amended to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129966 |
| Motion number(s): | M-92461 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | GREENBERG & GREENBERG By: Mark D. Greenberg, Esq. REINER, SLAUGHTER, McCARTNEY & FRANKEL LLP By: Terrence E. McCartney, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Belinda A. Wagner, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | October 16, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion for summary judgment pursuant to CPLR 3212 on the basis that the subject accident did not occur at a location owned, operated, maintained, or controlled by the Defendant is granted.
This Claim, which was filed with the office of the Clerk of the Court on July 12, 2017, asserts that Defendant operated County Route 14 in Columbia County, State of New York (Claim, ¶ 5). It is further alleged that, on April 24, 2017, Claimant, Ah Tua Teo, was operating a vehicle on County Route 14, approximately 1,500 feet west of Howe Road, when it went under the guide rail and down an embankment, where it overturned as a result of the defective, hazardous condition of the guide rail (Claim, ¶ 17). It also is alleged that Defendant controlled, maintained, and owned County Route 14 and that Defendant designed the guide rail in question. It is alleged Defendant was negligent in designing, maintaining and operating the guide rail in question.
Defendant seeks summary judgment dismissing the Claim on the basis that the State is not the proper party Defendant in this action.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
In support of its Motion, Defendant has submitted the affidavit of Thomas E. Story, Jr. (hereinafter, "Story Affidavit"). Mr. Story avers that he is currently employed by the New York State Department of Transportation (hereinafter, "DOT") as an Assistant Resident Engineer and has held the title since March 1995 (Story Affidavit, ¶ 1). He asserts that he has been employed by DOT since 1986 and is currently assigned to the Columbia County Residency and undertakes various responsibilities for maintenance of all State highways in Columbia County (id.).
Mr. Story further states that he has searched and reviewed the records on file at the Columbia County Residency to ascertain the State's ownership and/or responsibility for the highways described in the Police Accident Report (MV-104A), dated April 24, 2017, relative to an automobile/pedestrian accident involving Claimant Ah Tua Teo and describing the location of that accident as having occurred on County Route 14, 1,500 feet west of Howe Road (Story Affidavit, ¶ 2). He states he also examined the State Highway Listing; Road Histories; Highway Sufficiency Manual; Record Plans; and State and County Maps (id., ¶ 3).
Mr. Story avers that he has determined that the location of the accident, which is the subject of this Claim, is not situated on any State highway or roadway owned, controlled or maintained by the State of New York (Story Affidavit, ¶ 4). He further states that the State of New York did not construct, design, maintain or inspect County Road 14 at any time (id., ¶ 5); nor did the State construct, design, install, maintain or inspect any guide rail at the accident site located on County Road 14 (id., ¶ 6).
In the Claim, Claimants refer to the accident site as "County Route 14." Mr. Story refers to the roadway as "County Road 14."
Claimants have not submitted any papers in opposition to Defendant's Motion.
The Court of Claims is a court of limited jurisdiction with power to hear claims against the State and certain public authorities (NY Const, art VI; Court of Claims Act § 9). This Court does not have jurisdiction over the County of Columbia, its agencies or any individual employee thereof (see Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977]; Mitchell v State of New York [UID No. 2017-040-109 (Ct Cl, McCarthy, J., Aug. 9, 2017)];
DeSouza v Support Collection Unit, Child Support (UID No. 2012-040-087 [Ct Cl, McCarthy, J., Oct. 25, 2012]; Lyons v State of New York, UID No. 2004-030-904 [Ct Cl, Scuccimarra, J., Feb. 18, 2004]; Webb v State of New York and The Administration for Children's Services (ACS), UID No. 2003-016-051 [Ct Cl, Marin, J., July 1, 2003]).
The Court finds and concludes that Claimants failed to present any evidence to demonstrate material issues of fact exist that Defendant had any responsibility for the design, construction, maintenance, control or operation of County Route 14 in Columbia County, or the guide rail at the accident site, and, thus, has failed to overcome Defendants' prima facie showing of entitlement to judgment dismissing the Claim.
Therefore, based upon the foregoing, Defendant's Motion for summary judgment is granted and the Claim is dismissed.
October 16, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion for summary judgment: Papers Numbered Notice of Motion, Affirmation, and Exhibits Attached 1 Filed Papers: Claim, Answer