Opinion
# 2020-028-552 Claim No. 134950 Motion No. M-95766
12-18-2020
STEVEN SIMON v. THE STATE OF NEW YORK
MALLILO & GROSSMAN, ESQS. BY: Francesco Pomara, Jr., Esq. HON. LETITIA JAMES, ATTORNEY GENERAL BY: Lawrence E. Kozar, AAG Assistant Attorney General
Synopsis
Case information
| UID: | 2020-028-552 |
| Claimant(s): | STEVEN SIMON |
| Claimant short name: | SIMON |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 134950 |
| Motion number(s): | M-95766 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | MALLILO & GROSSMAN, ESQS. BY: Francesco Pomara, Jr., Esq. |
| Defendant's attorney: | HON. LETITIA JAMES, ATTORNEY GENERAL BY: Lawrence E. Kozar, AAG Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 18, 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 August 11, 2020;
2. Affirmation of Lawrence E. Kozar affirmed August 4, 2020 with Exhibits A-B annexed;
3. Affirmation of Francesco Pomara, Jr. affirmed September 3, 2020.
Filed papers: Claim
As alleged in the verified claim, claimant was injured on November 4, 2019 when he tripped and fell while walking on the public sidewalk on the south side of 88th Avenue approximately 28 feet east of its intersection with Sutphin Boulevard in Queens County. As further alleged in the claim, the defendant owns the sidewalk and is responsible for maintaining, managing and controlling the area. Liability, according to claimant, arises from defendant's failure to maintain the sidewalk where he was injured in a reasonably safe condition.
Defendant has moved to dismiss the claim, pursuant to CPLR 3211 (a) (2), arguing that the premises is owned by the City of New York, not the State, and therefore, the court is without subject matter jurisdiction.
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]). Accepting as true the allegation that the property is owned by the named defendant, State of New York, the court has jurisdiction and the motion should be denied. Moreover, the document relied on by defendant to show ownership of the property by the City is not in evidentiary form. The record is a printout from the New York City Open Accessible Space Information System website. Though official records affecting real property are prima facie evidence of their contents if the record has been on file for ten years (CPLR 4522), defendant has not established the length of filing. Nor have the records been authenticated by an officer having legal custody of the documents (CPLR 4540). In the absence of a proper evidentiary basis, the documents lack any probative value (see Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 142 [1st Dept 2014, DeGrasse, J., concurring]). Thus, even if the court were to convert the application to one for summary judgment (CPLR 3211 [c]), the motion would fail.
Accordingly, it is
ORDERED, that the motion is denied.
December 18, 2020
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims