AS ADMINISTRATOR OF THE ESTATE OF JOEY PHILIP DECEASED v. The State of New York, Defendant. (2025)

In this wrongful death action, claimant John Philip, the administrator of the estate of decedent Joey Philip, alleges that decedent fell down a staircase at a residential care facility licensed by the State and suffered serious injuries from which he ultimately passed away. Defendant, the State of New York, moves for summary judgment dismissing the claim. Claimant opposes the motion. For the reasons stated below, the motion is denied.

By way of background, the accident occurred at 101 Hammond Road in Theills, New York. At the time, the property was being used a residential care facility for developmentally disabled persons by the nonprofit organization The New York Foundling, Inc. (TNYF). Like all such facilities, TNYF was licensed pursuant to an operating certificate issued by the New York State Office of People with Developmental Disabilities (OPWDD), a state agency (see Mental Hygiene Law § 16.03). TNYF held the premises as a tenant pursuant to a lease agreement between itself and the Dormitory Authority of the State of New York (DASNY).¹ As explained further below, the lease also granted rights to, and imposed obligations on, OPWDD, including a right to enter the premises and perform maintenance and repairs. The claim alleges that decedent, then a resident of the facility, fell while using the staircase that led from the first floor to the second floor of the home. The claim asserts a wrongful death cause of action based on defendant's failure "to properly own, operate, manage, control, maintain, possess, lease, staff, and supervise" the facility (Claim, ¶ 3). More specifically, the claim alleges that defendant was negligent in its care and supervision of decedent while residing at the facility. In addition, the claim further alleges that the stairs were dangerously defective, and that the State breached its duty to accommodate decedent's needs by failing to add particular adaptations to the stairs and maintain them in a reasonably safe condition.

The State's pre-answer motion to dismiss the claim was previously denied (see Philip v State of New York, 75 Misc 3d 1205[A], 2022 NY Slip Op 50382 [U] [Ct Cl 2022] [W. Rivera, J.]). Initially, the Court recognized that DASNY is an independent public benefit corporation distinct from the State, and over which the Court of Claims lacks jurisdiction (see id. at *5, citing Matter of Dormitory Auth. of State of NY [Span Elec. Corp.], 18 NY2d 114, 118 [1966]). Thus, to the extent the claim sought to hold the State liable for the acts or omissions of DASNY, the Court concluded that claimant "ha[d] sued the wrong party in the wrong court" (id.). Moreover, the Court held that the claim failed to state a cause of action to the extent it asserted that OPWDD negligently performed its governmental functions of licensing and overseeing TNYF's programs and staff (see id. at *5-*6). Nevertheless, the Court determined that the claim adequately stated a cause of action for the alleged breach of a proprietary duty to maintain the premises in a reasonably safe condition. The Court noted that although the lease agreement designated DASNY as the landlord and assigned DASNY certain maintenance and repair obligations, the fact that the lease reserved to OPWDD a right of entry to inspect, maintain, and repair the premises "show[ed] a direct nexus between that agency and functions at the residential facility that could have resulted in claimant's fall" (id. at *6).

On its motion for summary judgment, the State—echoing the conclusion already reached in Judge Rivera's prior order—first argues that it cannot be held liable for the allegedly negligent performance of its governmental functions of licensing and regulating TNYF's programs and staff. The State also contends that it is not liable for failing to maintain the staircase because DASNY, not the State, owned the property at the time of the accident. The State acknowledges the Court's prior holding that the existence of OPWDD's right of entry under the lease may form a basis for liability (see Scolavino Affirm in Supp of Mot, ¶ 16), but argues that claimant failed to produce any evidence during discovery that defendant maintained or repaired the premises. Notably, the State's motion is supported by the same materials that it proffered in support of its unsuccessful motion to dismiss—and nothing more. Such materials include the lease agreement; a two-page affidavit from OPWDD Treatment Team Leader Amy Coccodrilli identical to another affidavit from the same individual submitted on the motion to dismiss; and an affidavit from Christine Van Apeldoorn, the Associate Commissioner for the Division of Fiscal Policy and Management at OPWDD, which is substantially the same as an affidavit from a different OPWDD official that was submitted in connection with the prior motion. Claimant, in opposition, argues that this motion is repetitive of the prior motion to dismiss and should be denied under the doctrine of the law of the case. In addition, claimant argues that questions of fact preclude summary judgment in favor of the State.

Summary judgment is a "drastic remedy" and may be granted only when no triable issues of fact exist (Andre v Pomeroy, 35 NY2d 361, 364 [1974]; see CPLR 3212). A movant bears the initial burden of establishing the right to judgment as a matter of law by tendering sufficient evidence, in admissible form, demonstrating the absence of material issues of fact from the case (see Matter of Eighth Jud. Dist. Asbestos Litig., 33 NY3d 488, 496 [2019], citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Trustees of Columbia Univ. in the City of NY v D'Agostino Supermarkets, Inc., 36 NY3d 69, 73-74 [2020]). In this regard, conclusory assertions are insufficient to demonstrate the absence of any material issues of fact (see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]). The failure to make the initial prima facie showing requires denial of the motion, " 'regardless of the sufficiency of the opposing papers' " (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Alvarez, 68 NY2d at 324 [emphasis omitted]). If the moving party has satisfied the prima facie obligation, however, the burden shifts and the party opposing the motion must demonstrate, also by admissible evidence, the existence of an issue of material fact (see Vega, 18 NY3d at 503, citing Alvarez, 68 NY2d at 324). At the summary judgment stage, the essence of the Court's function is " 'issue-finding, rather than issue-determination' " (Ferrante v American Lung Assn., 90 NY2d 623, 630, quoting Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). And in determining a motion for summary judgment, "the evidence must be viewed in the light most favorable to the party opposing the motion" (Westinghouse Elec. Supply Co. v Brosseau & Co., 156 AD2d 851, 853 [3d Dept 1989]; see also Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 179 [2020]; Vega, 18 NY3d at 503), and " 'every available inference must be drawn in the [non-moving party's] favor' " (Matter of Eighth Jud. Dist. Asbestos Litig., 33 NY3d at 496 [alteration in original], quoting De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]).

The duty to maintain property in a reasonably safe condition is predicated upon ownership, occupancy, control, or special use of the premises (see Branch v County of Sullivan, 25 NY3d 1079, 1082 [2015]; Micek v Greek Orthodox Church of Our Savior, 139 AD3d 830, 831 [2d Dept 2016]). And, like any private party, the State has a duty to maintain property under its ownership or control in a reasonably safe condition (see Tagle v Jakob, 97 NY2d 165, 168 [2001], citing Basso v Miller, 40 NY2d 233, 241 [1976]; Preston v State of New York, 59 NY2d 997, 998 [1983]). However, if an owner of real property transfers possession of the premises to a tenant, that owner—the "out-of-possession landlord"—is not liable for injuries caused by dangerous conditions thereon except under certain circumstances (Hernandez v Malchus B'Chesed, LLC, 235 AD3d 626, 627 [2d Dept 2025]; see also Gronski v County of Monroe, 18 NY3d 374, 379 [2011]; Chapman v Silber, 97 NY2d 9, 19 [2001]). Specifically, an out-of-possession landlord may only be held liable where the landlord has "retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct" (Hernandez, 235 AD3d at 627; see Alnashmi v Certified Analytical Group, Inc., 89 AD3d 10, 18 [2d Dept 2011]).

Initially, contrary to claimant's contention, "the law of the case doctrine is inapplicable where, as here, a summary judgment motion follows a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause of action" (Borawski v Abulafia, 140 AD3d 817, 817-818 [2d Dept 2016]; see also State of New York v Barclays Bank of NY, 151 AD2d 19, 21 [3d Dept 1989], affd 76 NY2d 533 [1990]). This is because each motion involves a different scope of review (see Bernard v Grenci, 48 AD3d 722, 724 [2d Dept 2008]). Nevertheless, the rehashed materials submitted by the State in support of the instant motion are insufficient to establish its entitlement to judgment as a matter of law because, for the reasons explained below, the State failed to demonstrate, prima facie, that it did not own, occupy, control, or make special use of the premises where the accident occurred (see Amparo v Christopher One Corp., 225 AD3d 652, 653 [2d Dept 2024]; Ulloa v Incorporated Vil. of Freeport, 184 AD3d 762, 763-764 [2d Dept 2020]).

The lease is ambiguous with respect to how ownership and control were divided between OPWDD and DASNY at the time of the accident. Indeed, although the lease designates DASNY as the "Landlord" in its introductory clause, it does not specifically state that DASNY owned or held title to the property. And, as Judge Rivera previously noted, the lease's description of DASNY as an "agent" acting "on behalf of" OPWDD raises further questions about which entity in fact owned the property (Van Apeldoorn Affid, Exh A [Lease Agreement], at 3). This ambiguous lease language is not addressed by the parties. Notably, the lease granted OPWDD many of the rights and duties typically held by a landlord even though it is not technically designated as such. For example, as Judge Rivera noted in his decision denying defendant's motion to dismiss, OPWDD retained a right to "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" (see id. ¶ 11). Paragraph 15 of the lease states that "[a]ll alterations and improvements installed by Tenant shall be the property of OPWDD upon installation and shall remain upon and be surrendered with the premises as part thereof upon termination of this lease," thus inviting the inference that OPWDD owned the whole of the premises (id. ¶ 15 [emphasis added]). The lease also gave OPWDD the right to take possession of any abandoned personal property left by TNYF after the lease expired (see id. ¶ 17). Moreover, OPWDD—not DASNY—was responsible for furnishing utilities at the property and making any necessary repairs to the heating, hot water, and air conditioning systems (see id. ¶ 7). And if the premises were partially destroyed, the "sole discretion" to repair them rested with OPWDD (id. ¶ 18).

To compound the confusion even further, there are several provisions of the lease that seem to conflate OPWDD and DASNY. For example paragraph 23 provides only that "Landlord" (i.e., DASNY) had the right to re-enter the premises in an event of default, but paragraph 9 makes a conflicting reference to a right of OPWDD to "re-enter[ ] the premises pursuant to Sections 22 and 23" of the lease (id. ¶¶ 9, 23 [B]). And as Judge Rivera noted, the section of the lease titled "LANDLORD INSPECTION" refers exclusively to OPWDD, even though DASNY alone was designated the landlord (id. ¶ 11). Van Apeldoorn's affidavit does not address the ambiguities in the lease, and her statement that the property was "owned by the State of New York[ ] under the jurisdiction of [DASNY]" is not sufficiently clear to resolve those ambiguities (Van Apeldoorn Affid, ¶ 4). Thus, there are questions of fact as to whether the State owned the subject property. Even if the State could demonstrate it was not the record owner of the property at the time of the accident, its submission fails to address whether it owes a duty based upon the lease agreement which gave the State a degree of control over the premises comparable to a landlord or owner (see generally Ortega v Liberty Holdings, LLC, 111 AD3d 904, 906 [2d Dept 2013]; Ulloa, 184 AD3d at 763-764; cf. Zylberberg v Wagner, 119 AD3d 675, 676 [2d Dept 2014]; Oquendo v Mid Mem Corp., 103 AD2d 705, 705-706 [1st Dept 1984]).

Next, even assuming—as claimant appears to assume (see Barberi Affirm, ¶ 141)—that the State held the status of an out-of-possession landlord because the premises were leased to TNYF at the time of the accident, defendant failed to demonstrate as a matter of law that the State did not have a duty imposed by statute, contract, or a course of conduct (see Hernandez, 235 AD3d at 627; Cicio v Kingswood Props., LLC, 224 AD3d 656, 657 [2d Dept 2024]). As made clear by Judge Rivera's prior decision, the State's retention of a contractual right to enter the premises for the purpose of making inspections and repairs is, by itself, sufficient to raise a question of fact with respect to the existence of a duty (see Yehia v Marphil Realty Corp., 130 AD3d 615, 616-617 [2d Dept 2015]; Spencer v Schwarzman, 309 AD2d 852, 853 [2d Dept 2003]). Although the reservation of such a right of entry generally only exposes the out-of-possession landlord to liability for "significant structural or design defect[s] in violation of a specific statutory provision" (Mejia v 2959 Fulton St. Realty, Inc., 240 AD3d 881, 884 [2d Dept 2025]), defendant failed to demonstrate or even argue that the defects alleged by claimant are not defects of that nature (cf. Behluli v 228 Hotel Corp., 172 AD3d 1151, 1152 [2d Dept 2019]; Nikolaidis v La Terna Rest., 40 AD3d 827, 828 [2d Dept 2007]). Moreover, given that the State had a broad right of access to the premises to perform inspections, maintenance, and repairs, there is a question whether the State endeavored to maintain or repair the premises and thus assumed a duty of care by its course of conduct (see Hernandez, 235 AD3d at 627; Taylor v Lastres, 45 AD3d 835, 835 [2d Dept 2007]; see also Ritto v Goldberg, 27 NY2d 887, 889 [1970]).

Coccodrilli's conclusory affidavit does not even begin to address these questions regarding the State's maintenance or control of the premises, let alone establish the absence of a triable issue of fact. First, her affidavit lacks a proper foundation because, although she states she is familiar with OPWDD's involvement with TNYF's programs and facilities, she does not claim to have knowledge of the lease agreement or the area where claimant allegedly fell (cf. Hope v Our Holy Redeemer R.C. Church, 219 AD3d 595, 595 [2d Dept 2023]). And contrary to the State's contention, Coccodrilli does not acknowledge or discuss the State's right of entry under the lease. She avers that the State did not "operate" or "oversee" TNYF's "facilities" and "programs" (Coccodrilli Affid, ¶ 6), but conspicuously avoids any specific discussion of whether the State performed inspections, maintenance, or repairs at the premises. The Court cannot construe the vague language in Coccodrilli's affidavit as implicitly denying that OPWDD ever inspected or maintained the premises, particularly given that OPWDD has a statutory obligation to inspect facilities that hold operating certificates at least twice per year (see Mental Hygiene Law § 16.11 [a] [1]).

Finally, as the State argues—and as Judge Rivera already explained—the claim does not state a cause of action to the extent it seeks to hold the State liable for negligently performing its governmental functions of licensing and supervising TNYF and its programs and staff (see Philip, 2022 NY Slip Op 50382 [U], 75 Misc 3d 1205[A], *6; see also T.T. v State of New York, 151 AD3d 1345, 1347 [3d Dept 2017]). However, it has long been recognized that the State's duty to maintain its property in a reasonably safe condition is proprietary in nature and, as claimant correctly notes, does not require him to show the existence of a special relationship (see Miller v State of New York, 62 NY2d 506, 511 [1984]). The State fell far short of its burden to establish, as a matter of law, that it did not breach a duty owed to claimant in that regard. To the extent claimant attempts affirmatively to demonstrate the State's negligence through the submission of an engineer's affidavit, the Court notes that claimant did not cross-move for summary judgment on liability and the State's motion does not even raise the issue whether there was actual or constructive notice of a dangerous condition.

Accordingly, it is hereby

ORDERED that the State's motion (M-102010) is DENIED in its entirety.

Dated: September 18, 2025

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

Papers Considered:

1. Claim, filed December 7, 2021;

2. Answer, filed June 23, 2022;

3. Notice of Motion and Affirmation of Assistant Attorney General Joseph E. Scolavino in Support of Motion, with Exhibits A-F, filed March 20, 2025;

4. Affirmation of Jeremy D. Barberi, Esq., in Opposition to Motion, with Exhibits 1-17, filed June 17, 2025; and

5. Reply Affirmation of Assistant Attorney General Joseph E. Scolavino, with Exhibit A, filed June 24, 2025.

FOOTNOTES

1.   As noted in the State's motion papers, title to the property was later transferred to TNYF several years after the accident occurred.

Zainab A. Chaudhry, J.