PHILIP v. STATE (2022)

The following papers numbered 1 through 3 were read and considered by the Court on defendant's motion to dismiss the claim pursuant to CPLR 3211 (a) (2) and (a) (7):

Notice of Motion, State's Attorney's Supporting Affirmation, and Exhibits 1

Claimant's Attorney's Affirmation in Opposition, and Exhibits 2

State's Attorney's Reply Affirmation 3

Decision

The claim for wrongful death alleges that on April 25, 2019, due to defendant's negligence, Joey Philip was injured when he fell down a defective staircase at the residential care facility where he was residing that was operated by The New York Foundling (the Foundling), located at 101 Hammond Road, Thiells, New York. He passed away as a result of his injuries on January 15, 2020. The claim is brought by John Philip, brother of the deceased, as Administrator of the Estate. Defendant moves to dismiss the claim under CPLR 3211 (a) (2) and (7), and Court of Claims Act §§ 11 (b) and 10 (3).¹ Claimant opposes the motion.

The motion is supported by an attorney's affirmation, affidavits, the claim, Letters of Administration and other documents. The opposition is supported by an attorney's affirmation, medical records, an affidavit and other documents.

The Court will first address defendant's argument that the claim should be dismissed under CPLR 3211 (a) (2) for lack of subject matter jurisdiction because it was not timely filed and served under Court of Claims Act § 10 (2). The statute requires that a claim by an executor or administrator of a decedent,

“for damages for a wrongful act, neglect or default, on the part of the state by which the decedent's death was caused, shall be filed and served within ninety days after the appointment of such executor or administrator, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the death of the decedent.”

A claim against the State is allowed only by the State's waiver of sovereign immunity and in derogation of the common law (see Lichtenstein v State of New York, 93 NY2d 911, 913 [1999]; Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992]). Consequently, the statutory requirements conditioning a claim are strictly construed and applied (see Lichtenstein, 93 NY2d at 913; Dreger, 81 NY2d at 724). Where claimant has failed to meet the statutory prerequisites, the claim must be dismissed for lack of jurisdiction (see Kolnacki v State of New York, 8 NY3d 277, 281 [2007]).

Ninety days after the date Letters of Administration were issued on February 27, 2020 (Ex. 10) would have been May 27, 2020. After applying the tolling period of 228 days resulting from then Governor Andrew Cuomo's pandemic related Executive Orders extending periods of limitation, the filing and service date for the claim or a notice of intention was extended to January 11, 2021. In the case at bar, the notice of intention was received by the Attorney General's Office on May 28, 2020. The claim was filed on December 7, 2021, and it was served on December 13, 2021.

Defendant argues that the claim is untimely because the notice of intention was not received by the Attorney General's Office within ninety days after appointment of the administrator, thus the two-year extension of time to file and serve the claim was not triggered. Defendant has submitted an affidavit of Jacqueline M. Riley, an Administrative Assistant with the Attorney General's Office. Ms. Riley attests that she reviewed the records of the Attorney General's Office and did not locate a notice of intention served by claimant.

In opposition, claimant submitted an affidavit of service signed by Giorgio Gazzola and a separate affidavit of Mr. Gazzola (Exs. 12, 14). Mr. Gazzola attests that he attempted to personally serve a copy of claimant's notice of intention at the Attorney General's Office in White Plains on May 27, 2020, but a notice posted on the door stated that the office was not accepting “walk-in visitors at this time,” and that service of legal papers could be arranged by calling the posted number (Ex. 14). Mr. Gazzola called the number and was advised to serve the documents via mail. He then sent the document via Express Mail. The USPS tracking slip (Ex. 16) shows the document was received at the Attorney General's Office on May 28, 2020.

Defendant's assertion that the notice of intention was not received has been sufficiently rebutted. The Court finds that the notice of intention was timely served on May 28, 2020, which was prior to the expiration of the tolling period referred to above. Therefore, the claim is timely because it was filed and served less than two years after the decedent passed away on January 15, 2020 (see Court of Claims Act § 10 [2]).²

Defendant also argues that the claim should be dismissed under CPLR (a) (7) because it fails to state a cause of action against the State. “When a party moves to dismiss a complaint pursuant to CPLR 3211 (a) (7), the standard is whether the pleading states a cause of action” (Sokol v Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]). “In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Polite v Marquis Marriot Hotel, 195 AD3d 965, 967 [2d Dept 2021]). “ ‘Conclusory allegations or bare legal assertions with no factual specificity are not sufficient, and will not survive a motion to dismiss’ ” (id., quoting Matter of Kenneth Cole Prods., Inc., Shareholder Litig., 27 NY3d 268, 278 [2016]).

The claim (Ex. A) alleges that the decedent's injuries and ultimate death resulted from “the failure of Defendant, THE STATE OF NEW YORK, to properly own, operate, manage, control, maintain, possess, lease, staff, and supervise the residential care facility located at 101 Hammond Road, Theills, New York 10984” (Ex. A, ¶ 3). The claim does not identify any other agency, entity or person. More specifically, the claim alleges that on April 25, 2019, at approximately 8:30 a.m.:

“Claimant's decedent, JOEY PHILIP, was ascending the stairs from the first to the second floor, without any assistance or supervision from the residential care facility's staff, when he fell down the stairs thereby resulting in quadriparesis due to traumatic spinal cord injury which ultimately resulted in his death on January 15, 2020. [․] Said incident and Claimant's Decedent's injuries and damages were caused by reason of the negligence of Defendant, THE STATE OF NEW YORK, its officers, agents, servants, and/or employees [․]” (Ex. A, ¶¶ 4, 5).

The claim also alleges that defendant was negligent in allowing the stairs claimant fell down to become and remain in a defective and dangerous condition, and in failing to accommodate claimant's needs by adding “continuous bilateral handrails” and other “adaptions” to the stairs (Ex. A, ¶ 6, p 3). These allegations regarding maintenance and “adaptions” to the stairs, and the care of decedent, are the only alleged acts of negligence.

In connection with the motion to dismiss, the parties have submitted affidavits and relevant documents.³ Where the moving party offers evidentiary material, the motion must be denied unless the evidence shows that “a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it” (Sokol, 74 AD3d at 1181 [internal quotation marks omitted]). The inquiry under CPLR 3211 (a) (7) becomes whether “ ‘the materials establish conclusively that [the plaintiff] has no ․ cause of action’ ” (Francisco v Kiara Foods, Inc., 197 AD3d 563, 564-565 [2d Dept 2021], quoting Hendrickson v Philbor Motors, Inc., 102 AD3d 251, 258 [2d Dept 2012] [internal quotation marks omitted]; see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]).

The elements of common-law negligence are a duty owed by the defendant to the plaintiff, a breach of that duty, and a showing that the breach of that duty constituted a proximate cause of the injury (see Ruiz v Griffin,71 AD3d 1112, 1114 [2d Dept 2010]). The scope of the duty owed depends on the parties and the circumstances. Defendant argues that its evidentiary submissions show claimant has no valid cause of action because the State is not a proper party, the State did not owe the decedent a duty of care, and the State's licensing of the residential facility where decedent was injured is a discretionary governmental act. Claimant argues that the State owed decedent a duty of care because it owned the residential facility, leased the facility to the Foundling, and under the lease the State is responsible for repairs and may enter the facility without notice to make repairs.

Defendant's submissions establish that the Dormitory Authority of the State of New York (DASNY), not defendant, leased the residential facility to the Foundling, an independent not-for-profit, and that the New York State Office for People With Developmental Disabilities (OPWDD) issued an operating certificate permitting the Foundling to operate the residential facility. In his affidavit (Ex. C), Scott Sandwick attests that he is the Director of “Real Property & Capital Finance” at OPWDD and, based on his personal knowledge and review of documents in this matter, the residential facility is “owned by the State of New York under the jurisdiction of the Dormitory Authority of the State of New York” (Sandwick Aff., ¶¶ 4-5). Under a lease submitted as an attachment to the Sandwick affidavit (Ex. C) and as an exhibit by claimant (Ex. 2), DASNY leased the residential facility to the Foundling “on behalf of the Office for People With Developmental Disabilities” (Lease, p 3).⁴ Sandwick explains that the lease between DASNY and its tenant the Foundling ran from February 1, 2014 to December 31, 2018, and the Foundling remained as a holdover tenant until February 1, 2020, when the lease was officially renewed (Sandwick Aff., ¶¶ 4-5).

The lease between DASNY, as landlord, and the Foundling, as tenant, states in pertinent part that the “Landlord shall be responsible for all structural repairs of the premises, including, but not limited to, roof, foundation, windows, sidewalls, ceilings, floors, interior and exterior stairs, doors, sidewalks and driveway/parking lot” (Exs. C and 2, ¶ 7 [A] [emphasis added]). The lease also states that the landlord may make repairs or perform maintenance the tenant has failed to undertake pursuant to its lease obligation, and the landlord may make emergency repairs without notice (id.).

DASNY is a separate entity that is sued in its own name in State Supreme Court. The Court of Claims does not have subject matter jurisdiction to hear claims against this separate entity (see Matter of Dormitory Auth. of State of NY (Span Elec. Corp.), 18 NY2d 114, 118 [1966]; Matter of Knight v Dormitory Auth. of State of NY, 56 AD3d 780 [2d Dept 2008]). To the extent the claim against defendant is based on acts or omissions of the landlord or owner of the residential facility, claimant has sued the wrong party in the wrong court.

Nevertheless, the inquiry does not end there. The involvement of OPWDD, a State agency, with the residential facility under the express terms of the lease bears further scrutiny and demonstrates that the State is in fact a proper party. Amy Coccodrilli, a “Treatment Team Leader” with OPWDD, attests in her affidavit (Ex. B) that OPWDD is the State agency responsible for overseeing programs for individuals with developmental disabilities. In determining whether claimant can assert a wrongful death claim against defendant arising from negligent acts or omissions of OPWDD, the Court must first assess whether OPWDD “was engaged in a proprietary function or acted in a governmental capacity” when the claim arose (T.T. v State of New York, 151 AD3d 1345, 1345-1346 [3d Dept 2017]). “[T]o determine whether a governmental agency is acting in a proprietary function or a governmental capacity requires an examination of ‘the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred’ ” (Scozzafava v State of New York, 174 AD3d 1109, 1110 [3d Dept 2019], quoting Matter of World Trade Ctr. Bombing Litig., 17 NY3d 428, 447 [2011], cert denied 568 US 817 [2012]).

Defendant argues that licensing or issuing an operating certificate to facilities such as the Foundling is a discretionary government function for which the State cannot be held liable. Under the law, licensing or the failure to revoke a license is a discretionary governmental act clothed with sovereign immunity and therefore not a basis for a liability claim against the State (see T.T. 151 AD3d at 1347). In T.T. v State of New York, the Third Department found that OPWDD's oversight and regulation of a private service provider was governmental in nature (id.). Moreover, according to Ms. Coccodrilli, “[n]one of the employees working at the Residence [the residential facility] were employed by the State of New York,” and “OPWDD does not operate [the Foundling's] facilities or programs [, ․ or] oversee, take part in, or have any connection to the day-to-day activities of [the Foundling's] facilities or programs” (Ex. B, ¶ 6). She attests further that “neither OPWDD nor the State made any decisions related to Joey's [the decedent's] care and treatment” or “provides or provided services at any of [the Foundling's] facilities or programs [․], nor do they manage, control, or supervise any of [the Foundling's] staff members” (Ex. B, ¶¶ 6, 7). There is no cause of action for negligence against defendant based on these functions undertaken by OPWDD in its governmental capacity.

Notably, the lease between DASNY and the Foundling contains language authorizing OPWDD's undertaking of proprietary functions at the residential facility. In his opposition, claimant quotes from paragraph 11 of the lease, captioned “LANDLORD INSPECTION:”

“OPWDD, its agents, contractors and employees, and persons authorized by OPWDD may enter the premises without prior notification at all reasonable times to inspect the premises, maintain any component of the premises [․] or protect, repair, alter, replace or improve any component of the premises [․].” (Ex. 2, ¶ 11 [emphasis added]).

Whereas other provisions in the lease regarding maintenance and repair obligations refer to the landlord (DASNY), this provision refers instead to OPWDD. In that regard, the claim alleges that defendant was negligent in maintaining the defective stairs that the decedent fell down, and as noted, the lease specifically authorizes OPWDD to undertake inspections, maintenance and repairs, which are proprietary functions. The explicit reference to OPWDD undertaking inspections, maintenance and repairs shows a direct nexus between that agency and functions at the residential facility that could have resulted in claimant's fall. Whether defendant's alleged negligence can also be predicated on language in the lease stating that DASNY was leasing the residential facility to the Foundling “on behalf of” OPWDD is not discussed by the parties and cannot be resolved based on the current record. The caption “LANDLORD INSPECTION” followed by the references to OPWDD in the provision also create an ambiguity, which cannot be resolved at this juncture. Accepting the allegations in the claim as true, and according claimant the benefit of every possible favorable inference, defendant's evidentiary submissions do not establish that claimant has “no cause of action” against defendant (Hendrickson, 102 AD3d at 258).⁵

Accordingly, defendant's motion to dismiss the claim is DENIED. Defendant has 45 days from the filing date of this Decision and Order to file and serve an answer to the claim.

FOOTNOTES

1.   Court of Claims Act § 10 (3) does not apply. The applicable section is Court of Claims Act § 10 (2).

2.   Defendant does not object to the manner of service of the notice of intention, which was by express mail instead of by personal service or by certified mail, return receipt requested, as required by Court of Claims Act § 11 (a) (i). Therefore, defendant has waived any such objection pursuant to Court of Claims Act § 11 (c). In any event, defendant would be estopped from raising the statutory requirements due to its failure to accept personal service and its instruction to Mr. Gazzola to mail the legal papers (see Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668 [1976]; Arachy v State of New York, 196 AD2d 625, 626-627 [2d Dept 1993]).

3.   These documents are: defendant's Exhibits A-F, which include affidavits by Amy Coccodrilli (Ex. B), Scott Sandwick (Ex. C) and Jacqueline Riley (Ex. D), attachments thereto and other documents; and claimant's Exhibits 1-17, which include affidavits by claimant (Ex. 1) and Giorgio Gazzola (Ex. 14), and other documents.

4.   By its terms, the lease agreement is between “THE PEOPLE OF THE STATE OF NEW YORK acting through their agent DORMITORY AUTHORITY OF THE STATE OF NEW YORK” (Lease, p 1). The parties do not mention this language in their papers, and the Court will not speculate on whether it is of any legal consequence to the issues raised by defendant's motion to dismiss.

5.   It is noted that claimant will have the burden at trial to prove OPWDD was negligent regarding these functions and that its negligence proximately caused the decedent's injuries, and ultimately his death.

Walter Rivera, J.