|Claimant(s):||MIRIAM SCHIFFMAN, Individually and as Administrator of the ESTATE OF THEODORE H. SCHIFFMAN, Deceased|
|Claimant short name:||SCHIFFMAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||Miriam Schiffman, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: John L. Belford, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 27, 2021|
|See also (multicaptioned case)|
This is a claim for money damages against the State of New York (Defendant or State) by Miriam Shiffman, proceeding pro se, in her individual capacity and as administrator of the estate of her late husband, Theodore H. Schiffman (Claimant). The claim alleges causes of action for her husband's wrongful death and pain and suffering, as well as for her loss of companionship.
The causes of action arise from a motor vehicle accident which occurred on November 27, 2015 "on a public roadway called Broadway, at its intersection with Route 878" and during which Mr. Schiffman was hit while walking in the crosswalk "across Route 878 at the intersection of Broadway" in the Village of Lawrence, Town of Hempstead, Nassau County, New York. The claim alleges that the State operated, maintained, managed and controlled the area, had a duty to adequately light it and failed in that duty by allowing the area to be in a "state of darkness" and that this dark condition caused Mr Schiffman's fatal accident.
Issue has been joined and the State has moved to dismiss the claim pursuant to CPLR 3211 (a) (7) and for summary judgment pursuant to CPLR 3211. Claimant has opposed both motions.
Motion to Dismiss Standards
On a motion to dismiss a claim for failure to state a cause of action, a court must afford the pleadings a liberal construction, accept the allegations of the claim as true, and provide the claimant the benefit of every possible legal inference (see CPLR 3211 [a] ; Leon v Martinez, 84 NY2d 83, 87-88 ; Halliwell v Gordon, 61 AD3d 932, 933 [2d Dept. 2009]; see also AG Capital Funding Partners, L.P. v State Street Bank and Trust Co., 5 NY3d 582 ). The Court's function is to determine whether a claimant's factual allegations fit within any cognizable legal theory, without regard to whether the allegations can ultimately be established (Union State Bank v Weiss, 65 AD3d 584, 585 [2d Dept. 2009]). If factual allegations are discerned which taken together manifest any cause of action cognizable at law, then a motion for dismissal will fail (see Pacific Carlton Dev. Corp. v 752 Pac., LLC, 62 AD3d 677, 679 [2d Dept. 2009]; Guggenheimer v Ginzburg, 43 NY2d 268, 275 ). "Under CPLR 3211 a trial court may use affidavits in its consideration of a pleading motion to dismiss [because] 'either party may submit any evidence that could properly be considered on a motion for summary judgment'" (Rovello v Orofino Realty Co., 40 NY2d 633, 635, 357 ).
In order to state a negligence claim and survive a motion to dismiss, a claimant must assert "(1) a duty owed by the defendant to the [claimant], (2) a breach thereof, and (3) injury proximately resulting therefrom" (see, Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 , rearg denied 28 NY3d 956 ).
Summary Judgment Standards
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 ). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 ). The proponent of a motion for summary judgment must establish a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]).
On a motion for summary judgment in a negligence case, a defendant must establish "that there was no breach of the duty of [care] and further, in the event that there was such a breach, that the breach was not a proximate cause of the injuries" (Walley v Bivins, 81 AD3d 1286, 1287 [4th Dept 2011]).
Here, Defendant has submitted an affidavit of Nancy Kamel, the Resident Engineer for the Nassau South Residency of the New York State Department of Transportation. Ms. Kamel attests that on the date of Mr. Schiffman's accident the lights "at the intersection of Route 878 (Nassau Expressway) and Broadway, Village of Lawrence, Town of Hempstead, County of Nassau" were not "maintained, controlled, or operated by of (sic) the State of New York". Accordingly, since the State had no duty to repair the lights at this intersection, Defendant has met its burden to establish that Claimant has not stated a cause of action, as well as its prima facie entitlement to summary judgment(2) .
In opposition, Claimant posits that the State "must have delegated its responsibility to maintain, control and operate the street lights on that highway to one of its political subdivisions" and that the State is liable for any resulting injury under "the doctrine of respondeat superior". Since Claimant has submitted no evidence of a delegation that the State "must have" made to an unnamed municipality and further, since the doctrine of respondeat superior has no application as between the State and its subdivisions, Claimant has failed to raise evidence in admissible form of a triable issue of fact to defeat summary judgment.
In view of the foregoing, it is unnecessary to reach the parties' remaining contentions. Accordingly, it is
ORDERED, that Defendant's motion for summary judgment (motion no. M-96851) is granted; and it is further
ORDERED, that Claim No. 130552 is dismissed.
September 27, 2021
Hauppauge, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims
2.This affidavit is lacking in detail. The better practice would be for Defendant's affidavit to have explained the basis for the affiant's knowledge, by providing information on her responsibilities or the manner in which she determined Defendant's lack of responsibility. Nevertheless, in this case the affidavit meets Defendant's prima facie burden (see, Segal v State of New York, UID No. 2018-049-027 [Ct Cl, Weinstein, J., Dec. 12, 2018]).