Opinion
# 2017-032-12 Claim No. 128608 Motion No. M-89596
03-15-2017
JUAN COTTO v. THE STATE OF NEW YORK
Elefterakis, Elefterakis & Panek By: Nicholas Elefterakis, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Lawrence E. Kozar, Assistant Attorney General, Of Counsel
Synopsis
Defendant's motion to dismiss is denied, as the State has not shown that it does not own, operate, or maintain the property in question.
Case information
| UID: | 2017-032-12 |
| Claimant(s): | JUAN COTTO |
| Claimant short name: | COTTO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128608 |
| Motion number(s): | M-89596 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Elefterakis, Elefterakis & Panek By: Nicholas Elefterakis, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Lawrence E. Kozar, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | March 15, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed the instant claim on September 29, 2016, seeking monetary damages from the State of New York for injuries that he allegedly sustained in a slip and fall on "the sidewalk located at McDonald Avenue at or near 20th Street, adjacent to the Green-[w]ood Cemetery in the County of Kings, State of New York" (Claim ¶ 3). Claimant alleges that he was caused to fall due to certain defects on the sidewalk, and that agents, servants, and/or employees of the State and the New York State Department of State Division of Cemeteries owned, operated, maintained, supervised, and controlled said sidewalk at the time of the accident (Claim ¶¶ 2-3). In lieu of an answer, defendant moves to dismiss the claim on the ground that the State does not own, operate, or maintain the property in question. For the reasons that follow, the Court denies defendant's motion.
Defendant argues that the subject property is privately and exclusively owned by the Green-Wood Cemetery, Inc., and submits property records from the New York City Department of Finance, Office of the City Register in support of that contention (Exhibit B). Said records indicate that the property located at 500 20th Street in Brooklyn, New York is owned by the Green-Wood Cemetery. The Court agrees with defendant that the Green-Wood Cemetery "is a cemetery corporation organized under an act of the Legislature of the State of New York (Laws of 1838, chap. 298), and owns, sells and maintains burial plots in a cemetery located in Brooklyn" (Kahlmeyer v Green-Wood Cemetery, 175 Misc 187, 188 [Sup Ct NY County 1940], mod 261 AD 950 [1st Dept 1941], affd 287 NY 787 [1942]; see generally French v Kensico Cemetery, 177 Misc 395, 396 [Sup Ct Westchester County 1941], affd 264 AD 617 [2d Dept 1942], affd 291 NY 77 [1943]). Further, "[s]ince the jurisdiction of the Court of Claims is limited to those situations where the Legislature has specifically conferred it" (Plath v New York State Olympic Regional Dev. Auth., 304 AD2d 885, 886 [3d Dept 2003]), causes of action seeking to hold the Green-Wood Cemetery liable in negligence are more appropriately brought in the Supreme Court of the county in which the corporation has its principal office (see CPLR 503 [c]; see e.g. Velasco v Green-Wood Cemetery, 8 AD3d 88 [1st Dept 2004]). However, the State has not demonstrated who is the exclusive owner of the sidewalk located at McDonald Avenue at or near 20th Street (compare Craig v State of New York, 261 AD2d 683, 684 [3d Dept 1999], lv denied 94 NY2d 752 [1999]). Affording a liberal construction to the claim, accepting the allegations therein as true, and according claimant the benefit of every possible favorable inference, the Court finds that he has sufficiently stated a claim of negligence (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Garofolo v State of New York, 80 AD3d 858, 860 [3d Dept 2011]).
Although claimant applies a summary judgment standard in his Affirmation in Opposition to the Motion, defendant's Notice of Motion clearly identifies it as a motion seeking dismissal pursuant to CPLR 3211 (a), and, given the nature of the motion and relief sought, the Court finds that it is more properly treated as such. The Court notes, however, that application of a summary judgment standard to the instant matter would not alter the result herein.
Accordingly, it is hereby
ORDERED, that defendant's motion to dismiss (M-89596) is denied.
March 15, 2017
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Claim, dated September 27, 2016, with attachments. 2. Affirmation in Support of Motion to Dismiss, affirmed by Lawrence E. Kozar, AAG, on November 15, 2016, with exhibits. 3. Affirmation in Opposition to Motion, affirmed by Matthew D. Fox, Esq., on November 28, 2016.