Opinion
# 2021-032-003 Claim No. 134967 Motion No. M-95781
01-06-2021
MORLAIX MOSQUERA v. CITY UNIVERSITY OF NEW YORK and STATE OF NEW YORK
Pavlounis & Sfouggatakis, LLP By: Andrew G. Sfouggatakis, Esq. Hon. Letitia James, Attorney General By: Indira Mahabir, AAG
Synopsis
Motion to dismiss denied. The State failed to set forth evidence showing that it was not involved in the maintenance of the sidewalk where the claim accrued.
Case information
| UID: | 2021-032-003 |
| Claimant(s): | MORLAIX MOSQUERA |
| Claimant short name: | MOSQUERA |
| Footnote (claimant name) : | |
| Defendant(s): | CITY UNIVERSITY OF NEW YORK and STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134967 |
| Motion number(s): | M-95781 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Pavlounis & Sfouggatakis, LLP By: Andrew G. Sfouggatakis, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Indira Mahabir, AAG |
| Third-party defendant's attorney: | |
| Signature date: | January 6, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The instant claim was filed on June 25, 2020 following the Court's granting of claimant's late application. The claim states that on January 7, 2017, claimant was caused to trip and fall due to a broken, raised condition between a portion of sidewalk and a portion of grating located on the sidewalk in front of the Academic Core Building at York College. Defendant now moves under CPLR 3211 to dismiss the claim as to defendant State of New York on the ground that the State of New York is not a proper party. Claimant opposes the motion.
The claim was discontinued as to defendant Dormitory Authority of the State of New York (DASNY) by stipulation filed on August 28, 2020.
On a motion pursuant to CPLR 3211, "the Court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). However, "bare legal conclusions and factual claims, which are either inherently incredible or flatly contradicted by documentary evidence . . . are not presumed to be true on a motion to dismiss for legal insufficiency . . . and . . . when the moving party offers matter extrinsic to the pleadings, the court need not assume the truthfulness of the pleaded allegations" (JFK Holding Co., LLC v City of New York, 68 AD3d 477, 477 [1st Dept. 2009]).
Here, the claim sets forth several allegations against both the City University of New York (CUNY) and the State of New York. The State argues that the claim asserted against it should be dismissed because it is not a proper party. "CUNY and the State are separate and distinct legal entities and the State is not a proper defendant in claims based on the actions of CUNY" (Davalos v State of New York, UID No. 2002-016-010 [Ct Cl, Marin, J., Feb. 2, 2002], citing Perry v City of New York, 126 AD2d 714 [2d Dept. 1987]). However, the claim does not assert negligence claims against CUNY alone, rather it alleges that both CUNY and the State were negligent in failing to maintain the sidewalk where claimant fell and sustained injuries. The State has not set forth any evidence to show that it was not involved in the maintenance of the subject sidewalk, as is alleged in the claim. The State only submits the affirmation of its attorney who does not have any personal knowledge of the entity that maintains the sidewalk where claimant fell (see Lapshina v State of New York, UID No. 2018-028-520 [Ct Cl, Sise, J., Nov. 19, 2018]; Botfeld v State of New York, UID No. 2018-054-071 [Ct Cl, Rivera, J., Aug. 30, 2018]; Andrews v State of New York, UID No. 2012-049-020 [Ct Cl, Weinstein, J., Apr. 23, 2012]). Accordingly, the State has failed to meet its burden (see Meringolo v State of New York, UID No. 2015-049-039 [Ct Cl, Weinstein, J., July 2, 2015]).
Based upon the foregoing, defendant State of New York's motion to dismiss the claim (M-95781) is DENIED.
January 6, 2021
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims Papers Considered: 1. Notice of Motion, dated July 31, 2020; and Affirmation in Support, affirmed by Indira Mahabir, AAG on July 31, 2020, with Exhibit A annexed thereto. 2. Affirmation in Opposition, affirmed by Andrew G. Sfouggatakis, Esq. on September 1, 2020, with Exhibits A through C annexed thereto.