Luis Heras, Claimant, v. The State of New York, New York State Homes and Community Renewal, Defendants. (2022)

The following papers numbered 1-4 were read and considered by the Court on the State's pre-answer motion to dismiss:

Notice of Motion, Attorney's Supporting Affirmation Dated April 21, 2022 and Exhibits, Attorney's Amended Affirmation Dated June 6, 2022 1

Attorney's Affirmation in Opposition and Exhibits 2

Attorney's Reply Affirmation and Exhibit 3

Amended Affirmation of Mark L. Tyler Filed October 21, 2022  ¹ 4

A Notice of Intention to File Claim was served upon the State on October 8, 2021 (Claimant's Exs. A, B). On March 14, 2022, a claim was filed with the Court and on March 18, 2022 a copy of the claim was served upon the State (Claimant's Ex. E; State's Motion Exs. A, B). The claim alleges that on September 1, 2021, claimant was injured during the course of his employment as a construction worker employed by King Contracting Group at a construction site located at 178 Warburton Avenue, Yonkers, New York, when construction materials fell from above and struck claimant (State's Motion Ex. A). The claim further alleges that the State failed to provide claimant with a safe work place. The State brings this pre-answer motion to dismiss the claim on the grounds that the State is not a proper party defendant because the State did not own, control, operate, maintain or supervise the worksite. Accordingly, the State argues that the claim is jurisdictionally defective and warrants dismissal.²

Claimant opposes the motion arguing that the State's supporting papers fail to establish as a matter of law that the claim warrants dismissal based upon the jurisdictional ground asserted by the State. Claimant further argues that the motion is premature because there has been no discovery to determine the State's potential liability based upon the State's alleged involvement or control regarding the construction site.

In support of the State's motion, the State submits the affirmation of Mark L. Tyler, Esq., the Supervising Attorney for the General Law Bureau at the New York State Division of Housing and Community Renewal (DHCR), a State agency created pursuant to Public Housing Law § 10 and a constituent entity of the New York State Homes and Community Renewal (HCR) (State's Motion Ex. B). Tyler explains in his affirmation that HCR operates as a statewide platform to facilitate the work of New York State's housing and community renewal efforts (id.). The constituent housing entities include DHCR, NYS Housing Finance Agency (HFA), Housing Trust Fund Corporation (HTFC), Affordable Housing Corporation (AHC) and the State of New York Mortgage Agency (SONYMA). Each component of HCR supports HCR's mission to build, preserve and protect affordable housing, increase home ownership and spur related economic development activity to create business opportunities and strengthen communities across New York State.

Tyler's responsibilities involve facilitating the creation and preservation of affordable housing using his knowledge of federal, state, and local laws relevant to affordable housing. Among the programs that are involved in the preservation and creation of affordable housing are New York State Low Income Housing Tax Credits (SLIHC) and 4% Federal Low Income Housing Tax Credits (LIHC). HFA is a Public Benefit Corporation created pursuant to Article III of the Private Housing Finance Law (PHFL) and a constituent entity of HCR.

To assist in the affordable housing initiative located at 178 Warburton Avenue in Yonkers and referred to as The Ridgeway, HFA agreed to provide LIHC and DHCR awarded SLIHC (State's Motion Ex. B, ¶8). Tyler maintains that HFA, as a public benefit corporation, is not subject to the jurisdiction of the Court of Claims (see PHFL § 44). Additionally, Tyler searched HCR records and interviewed employees to determine what connection, if any, HCR and its constituent entities may have to the instant claim. Tyler learned that HFA agreed to provide a subsidy to finance the development. LIHC may generate a benefit to investors to the extent possible based on their federal tax obligations (see United States Internal Revenue Code § 42). Tyler explained, however, the HFA policy is not to take ownership interests in properties. Rather, HFA's policy is to provide subsidies to affordable housing developers, local Industrial Development Authorities (IDAs) and Public Housing Authorities (PHAs). In the investigation of this claim, Tyler found no evidence of any ownership interests, management responsibilities, or involvement with construction in any way connected to HFA, which is consistent with HFA's usual process and policy to provide subsidies only.

Tyler further explained that DHCR may award SLIHC pursuant to Article 2-A of the Public Housing Law. SLIHC provides a dollar-for-dollar reduction in state taxes to investors in low-income housing meeting the requirements of Article 2-A. Article 2-A requirements are solely related to financial aspects of affordable housing. HCR's Office of Financial and Development, Capital Programs Manual provides guidance for applicants for tax credits. Applicants must provide proof of "Site Control" (HCR's Office of Financial and Development, Capital Programs Manual § 5.03.01), such as a deed or contract of sale. Applicants must also hire a Housing Consultant (id. § 5.03.02) and select a builder (id. § 5.03.04). Thus, Tyler stated that it follows that the site and construction process is the responsibility of the applicant, their contractors, agents and employees. It is not the responsibility of HCR or its constituent entities.

Further, in reply to claimant's opposition papers, the State submitted an additional affirmation of Tyler to supplement his initial affirmation submitted on the motion (State's Reply, Ex. A). In his supplemental affirmation, Tyler explains that HCR operates as a statewide platform to facilitate the work of New York State's housing and community renewal efforts. It is not a business or a corporate entity itself; rather it is an association of related governmental entities with affordable housing missions. "It is essentially doing business as ("DBA") designation to provide one point of contact for the public" (id. at ¶ 4). In response to claimant's opposition that the State failed to submit sufficient documentary support to establish that HCR is not a proper party defendant over which the Court of Claims has jurisdiction, Tyler points out that claimant could have found the documentary support online at HCR's website and in public documents available at the Office of the Westchester County Clerk (id. at ¶ 12). Tyler references the Regulatory Agreement pertaining to the construction site (control number 603023528) as recorded in the Office of the Westchester County Clerk (id. at ¶ 14). Tyler also identifies Kathryn Marnell, HFA Asset Management, as the employee who was the subject of the interviews referred to in Tyler's initial affirmation (id. at ¶ 16). Additionally, in response to claimant's reference to the signs at the construction site, Tyler affirms that the signs are required to be posted and are intended to clearly indicate to the public the specific involvement of governmental and private actors (id. at ¶ 20). Thus, according to Tyler, the signs do not establish a basis for liability against the State (id.).

In short, the State maintains that it does not own, control, operate, maintain or supervise the subject worksite and HCR's only involvement with the worksite was through tax incentives and partial funding for an affordable housing project at the site. Therefore, the State argues that the claim should be dismissed because there is no basis for holding the State liable.

The Court finds that whether the State's motion provided sufficient documentary support is not controlling upon whether the claim warrants dismissal, as the Court has the power to sua sponte dismiss a claim over which the Court lacks jurisdiction. Where the State Legislature has decided to confer upon the Court of Claims jurisdiction over public authorities and State agencies, the legislature has done so specifically by statute; the absence of such a provision indicates that jurisdiction lies with courts of general jurisdiction and not the Court of Claims (see Gembala v Audobon Assn., 97 AD2d 345, 346 [4th Dept 1983]; see also PHFL § 44 [the enabling legislation creating the HFA, a constituent entity of HCR, does not confer jurisdiction upon the Court of Claims]; Wendel v State of New York, UID No. 2015-040-020 [Ct Cl, McCarthy, J., April 27, 2015] [Court of Claims lacks jurisdiction over actions against HTFC, a subsidiary of HFA]; Prime Energy Solutions, Inc. v State of New York, 20 Misc 3d 750, 754 [Ct Cl 2008] ["(g)enerally, a public corporation which enjoys an independent existence separate and apart from the State may not be sued in the Court of Claims absent specifically conferring jurisdiction in that forum"]).

The Court finds that the claim warrants dismissal based upon a lack of jurisdiction over HCR and the lack of involvement by the State in the ownership, control, operation, maintenance and supervision of the subject worksite.

Accordingly, the motion to dismiss Claim No. 137592 is GRANTED.

White Plains, New York

October 27, 2022

WALTER RIVERA

Judge of the Court of Claims

FOOTNOTES

1.   The State filed, with permission of the Court, an Amended Affirmation of Mark L. Tyler dated October 20, 2022, to correct the citations at paragraph 18 of Tyler's Affirmation dated September 18, 2022 submitted as Exhibit A to the State's Reply.

2.   The State withdrew that part of its motion which sought dismissal of the claim based upon untimeliness (State's Reply, ¶ 6).

Walter Rivera, J.