Opinion
# 2020-028-549 Claim No. 135234 Motion No. M-95996
12-17-2020
BASILE PAVLATOS v. THE STATE OF NEW YORK
MALLILO & GROSSMAN BY: Scott A. Kutcher, Esq. HON. LETITIA JAMES, ATTORNEY GENERAL BY: Joshua Lee, Esq. Assistant Attorney General
Synopsis
Case information
| UID: | 2020-028-549 |
| Claimant(s): | BASILE PAVLATOS |
| Claimant short name: | PAVLATOS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135234 |
| Motion number(s): | M-95996 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | MALLILO & GROSSMAN BY: Scott A. Kutcher, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Joshua Lee, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 17, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read on Defendant's motion to dismiss pursuant to CPLR 3211 (a) (2):
1. Notice of Motion filed October 5, 2020;
2. Affirmation of Joshua Lee filed October 5, 2020 with Exhibits A-C annexed;
3. Affirmation of Scott A. Kutcher filed October 22, 2020.
Filed papers: Claim
As alleged in the verified claim, claimant was injured on August 29, 2019 when he was struck by closing elevator doors at the Queens County Civil Courthouse located at 89-17 Sutphin Boulevard. As further alleged in the claim, the defendant owns the premises and negligently and carelessly maintained the premises, including the elevator, thereby creating an unsafe condition that resulted in his injuries.
Defendant has moved to dismiss the claim, pursuant to CPLR 3211 (a) (2), lack of subject matter jurisdiction, arguing that the premises is owned by the City of New York and that the State's only responsibility with respect to the premises is to provide the financial resources for the cleaning and minor repair of court facilities.
On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction, the facts as alleged in the complaint are accepted as true and the claimant is accorded the benefit of every possible favorable inference (Leon v Martinez, 84 NY2d 83 [1994]). As alleged in the claim, the property where claimant was injured is owned, operated and maintained by the State of New York and based on those allegations, the court has subject matter jurisdiction (Court of Claims Act § 9).
Defendant has submitted an affidavit by one of its employees with responsibility for New York City-based court facilities in which he avers that the premises at issue is owned, operated and maintained by the City of New York. Considering the nature of the motion, the affidavit does not raise an issue as to whether this court has jurisdiction over this claim brought against the State of New York . Rather, the affidavit presents a challenge to the assertion that the State has a responsibility for maintaining the premises where the accident occurred, i.e. owes a duty to claimant; an issue appropriate to a motion for summary judgment. However, "[w]hether the [claim] will later survive a motion for summary judgment, or whether the [claimant] will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss" (Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2d Dept 2006]).
Accordingly, it is
ORDERED, that the motion is denied.
December 17, 2020
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims