Amerino v State of New York

[*1] Amerino v State of New York 2012 NY Slip Op 51044(U) Decided on March 26, 2012 Ct Cl Weinstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 26, 2012
Ct Cl

Dominic Amerino and Patricia Amerino, Claimants,

against

The State of New York, Defendant.



113916



APPEARANCES: For Claimants:

Fotunato & Fortunato, PLLC

By: Annamarie Fortunato, Esq.

and Milard K. Roper, Esq.

For Defendant:

Eric T. Schneiderman, NYS Attorney General

By: Josep

David A. Weinstein, J.

This matter is before the Court on the motion of claimants Dominic and Patricia Amerino for summary judgment as to the State's liability on their Labor Law § 240 (1) claim.

The Amerinos commenced this action by filing a claim on July 3, 2007, in which they alleged that Dominic Amerino suffered injuries as a result of a five-foot fall while working on a renovation of the Lily Pond Avenue overpass on the Staten Island Expressway (the "Expressway"). Amerino [FN1] was employed on that project by El Sol Contracting and Construction Corporation ("Sol") pursuant to a contract with (so the claim alleges) the State of New York (Claim ¶ 4). In the claim, Amerino asserts causes of action under sections 200, 240 (1) and 241 (6) of the Labor Law, and for common law negligence, and claimant Patricia Amerino brings a derivative claim for loss of consortium.

Contemporaneous with the filing of this action, claimants also filed suit in State Supreme Court against the City of New York and the Triborough Bridge and Tunnel Authority ("TBTA"), for claims arising out of the same incident. Counsel has informed the Court that the Supreme Court action has been settled.

On September 27, 2007, the State moved to dismiss this action, or in the alternative for summary judgment, on the ground that the property at issue was "owned, operated and [*2]maintained" by the TBTA, and that the State had no contractual relationship with Sol. It supported that motion with an affidavit from New York State Department of Transportation engineer Osama Khalil. The Court denied the motion as "at least premature," and presenting a question of fact.

Following the close of discovery and filing of the note of issue, claimants brought the present motion, seeking summary judgment as to the State's liability under Labor Law § 240 (1).[FN2] Claimants supported their motion-in-chief with an affirmation from their attorney Annamarie Fortunato ("Fortunato Aff."), to which various exhibits are appended, including an affidavit from Amerino, Amerino's deposition testimony, the deposition testimony of New York State employee Richard Gualtieri, and an excerpt from the deposition testimony of another such employee, Joseph Condon.

Claimants maintain that under section 240 (1) the State of New York, as owner of the property where the accident took place, had a nondelegable duty to provide safety devices to protect workers from elevation-related risks, and its failure to do so was the proximate cause of claimant's injuries (Fortunato Aff. ¶ 36). In its opposition, defendant does not address whether or not there was a violation of the statute, but instead contends that New York State was not the owner of the worksite. Thus, the threshold question on this motion is whether claimants have established a prima facie case that New York State is an owner within the meaning of the statute.

In support of their contention that the State owns the property at issue, claimants essentially present three arguments.

First, claimants contend that the Staten Island Expressway is an arterial highway as that term is defined is Highway Law § 349-b, and is owned by New York State by operation of that statute.

Second, claimants contend that they are entitled to summary judgment as to ownership because the State failed to produce a key document on this issue, known as the "damage map."[FN3]

Third, claimants submit a map produced by New York City in discovery during the parallel Supreme Court action (hereinafter "the DOT Map") (Fortunato Aff. Ex. 5). The map, whose provenance is discussed below, is labeled "New York City Department of Transportation Highway Ownership." It is color-coded, with different colors denoting whether a highway is "city owned," "state owned" or "pending state owned," while travel routes owned by neither — such as the TBTA-owned Verrazano-Narrows Bridge (the "Verrazano") — are left in white. The Staten Island Expressway is marked on the map as under state ownership from the Verrazano to the Goethals Bridge, and includes the accident site within the portion so delineated. In Condon's testimony, he averred that this map, notwithstanding its heading, was "a State unofficial document that was supposed to be use[d] for in house only" (Condon Dep. at 193) (Fortunato Aff. Ex. 6). Claimants assert that this statement "authenticat[ed the m]ap as a State document" (Fortunato Aff. ¶ 10). [*3]

Gualtieri, a Real Estate Specialist at the New York State Department of Transportation and witness produced by the State on the question of ownership, provided the following explanation of the "damage map" during his deposition: Not all property necessary to build the Expressway had to be acquired by the State, because some of that property was already in New York City's hands (Gualtieri Dep. at 15) (Fortunato Aff. Ex. 7). The remainder had to be secured through the appropriation process — that is, obtained from individual landowners via eminent domain (id. at 17). The damage map shows "all the properties that are acquired from all the various individuals who would be affected," denoting "the land the way it was before the condemnations, and . . . the portion that was to be taken" (id.). Those areas not seized by the State were those that were already, and remained, under City ownership. Thus, in revealing the areas appropriated by the State, the damage map indicated the land that came under State ownership.

Gualtieri was asked about the boundary between the Staten Island Expressway and the Verrazano-Narrows Bridge, the latter constructed by the TBTA. He stated that the two routes met "immediately to the west of Lily Pond Avenue" (Id. at 45), and that the overpass where Amerino's accident occurred "goes over the Avenue" (Id. at 46). In short, he testified that the accident site was in the area built by the TBTA. Subsequently, however, Gualtieri seemed to indicate that he could not answer this question without the damage map [FN4] (Id. at 59, 70). Specifically, when asked how one could determine the western boundary of the property the State acquired for the construction of the Staten Island Expressway, and thereby the extent of the State's ownership interest, he answered: "[y]ou would look to the damage map and to the Board of Estimate Resolutions and, possibly, you might want to go back to the condemnation actions themselves, the order, the condemnation order" (Id. at 70).

After requests by claimants for production of the damage map by the State were unsuccessful, claimants raised this issue with the Court at a status conference on August 3, 2011. The Court directed, by order issued that day, that "defendant . . . provide claimant with a copy of the damage map, or conduct a search and provide an affidavit stating that the State is not in possession of same." On September 12, 2011, the State provided claimants with an affidavit by Gaultieri stating that he had "caused a thorough and extensive search to be conducted of the records maintained by the New York State Department of Transportation with respect to a damage map' and determined that no such document is maintained by the New York State Department of Transportation nor is this office in possession of a copy of same" (Gualtieri Aff. ¶ 4) (Fortunato Aff. Ex. 9). As a result, claimants now contend that their "burden of proving prima facie that respondent THE STATE OF NEW YORK owned the property was also met by the inference arising from [the State's] failure to produce the damage map'" (Reply Affirmation of Milard Roper ["Roper Aff."] ¶ 32).

Defendant responded to claimants' motion via the affirmation of Assistant Attorney [*4]General Joseph Paterno. In that affirmation, Paterno asserts that the State "did not exercise control over the project," as it was contracted for by the TBTA (Paterno Aff. ¶ 4). In support of that contention, the State appends a 2006 letter from the TBTA to Sol, in which the TBTA informed Sol that it had been "conditionally" awarded a contract for the rehabilitation of the "Lily Pond Avenue Bridge at the Verrazano-Narrows Bridge" (Paterno Aff. Ex. A). As the State notes, claimants appear to concede that the State did not contract for the work at issue (see Fortunato Aff. ¶ 3 ["The fact that respondent did not contract for the work does not exempt it from the non-delegable duty imposed by Labor Law § 240 (1)"]).

The Paterno affirmation also asserts that claimants did not meet their burden of establishing ownership for purposes of summary judgment, on the ground that: (1) claimants failed to provide title or land transfer records; (2) the map relied upon by claimants is "unofficial"; (3) there is "no way to tell from this unofficial map where State ownership ends and where the [TBTA's] ownership of the Verrazano Bridge begins" (Paterno Aff. ¶ 8); and (4) claimants should have obtained the records necessary to demonstrate ownership in its lawsuit against New York City and the TBTA. The State contends that "[a] more likely interpretation" of the record is that the TBTA owned the site (Paterno Aff. ¶ 12). In addition to the TBTA's contract with Sol, the State also proffers, as support for this assertion, a photograph of the accident site with signs pointing to the Staten Island Expressway, in an apparent effort to demonstrate that a driver traveling west at the location where the accident took place has not yet reached the Expressway (Paterno Aff. Ex. C).

Finally, the State argues that it is not strictly liable for accidents occurring on an arterial highway "such as the Staten Island Expressway" (Paterno Aff. ¶ 14). Rather, it asserts that on such routes, liability will turn on which entity has control over the accident scene. As evidence that it had "transferred" the Expressway to New York City pursuant to Highway Law § 340-b, the State submits a copy of an Official Order for the Expressway dated November 1, 1973 (Paterno Aff. ¶ 18). The order itself notes, however, that the transfer "shall not operate in derogation of the State's right to establish and require compliance with maintenance standards" (Paterno Aff. Ex. D). The order also delineates the area transferred as extending "to the Verrazano Bridge Approach," and includes certain metes and bounds for the transfer whose precise contours are not explained in either defendant's or claimants' filings.

Claimants filed a reply affirmation by attorney Milard Roper, and submitted as exhibits thereto the deposition testimony of two additional witnesses: Sherry Johnson-O'Neal, principal administrative associate for the New York City Department of Transportation (taken during claimants' action against the TBTA and New York City), and Janitha Rajakaruna, resident engineer for Staten Island and Brooklyn at the New York State Department of Transportation (taken during the present litigation). Claimants rely on the former to show that the DOT Map "is used by both the City and the State to determine the boundaries of arterial highway ownership, authenticating it as a document maintained by the New York City Department of Transportation [and] the only source of information available to the City of New York to determine the boundaries of City versus State ownership of these arterial highways" (Roper Aff. ¶ 5). Johnson-O'Neal, an employee tasked with researching records to respond to attorney inquiries and as relevant to certain legal matters (Johnson-O'Neal Dep. at 4-5), testified that she did not know who had prepared the DOT Map, but she used it in her work to "indicate whether a highway is [*5]owned by the city or state" (Id. 80-81). She initially stated that when attorneys came to her with questions on ownership, this was "one of the documents" she turned to for the answer (Id. at 81). Later, she testified that, other than this map, she had no other sources of information to determine what is owned by the City (Id. at 87).

As to Rajakaruna, claimants cite a statement in her testimony that she also had a map showing State highway ownership, which she could retrieve at any time from her office (Rajakaruna Dep. at 22-24). Claimants now contend that the map referenced by Rajakarunah was the "damage map" described in Gualtieri's testimony (Roper Aff. ¶ 32). Rajakarunah indicated, however, that the map to which she referred was not only of the Expressway, but showed "which highways the state own[s]" in Staten Island and Brooklyn (Rajakaruna Dep. at 23). It is at least not facially apparent from this testimony that this document delineates the property appropriations carried out to construct the Staten Island Expressway, as would be the case if it were the damage map referenced by Gualtieri.

Rajakarunah stated that she had no personal knowledge as to who owned a particular highway, and was only able to testify as to who had "jurisdiction" thereof (Id. at 18; 49-50). She testified at length, however, regarding the contours of the Staten Island Expressway, stating at one point that the Expressway ends "at the Lily Pond Avenue exit in the eastbound direction" (Id. at 39), and at another that the State's jurisdiction over the expressway ended "600 feet west" of the Westbound Lilly Pond Avenue Exit (Id. at 157).

Following the submission of these papers and after the return date on the motion, the Court scheduled oral argument and directed the parties to address the impact on this motion of Morton v State of New York (15 NY3d 50 [2010]), which may be read to require a "nexus" between a property owner and an injury on the work site before liability under section 240 (1) will attach. On the day of the argument, claimants handed the Court a supplemental affirmation by Fortunato, appending additional deposition testimony, including a previously unsubmitted deposition of Condon. Claimants asserted that such submission was appropriate, as it addressed the issue of "nexus" impliedly raised by the Court in its letter. The parties then made letter submissions on the question of whether such affirmation was properly before the Court. For reasons set forth below, I will not consider this submission in ruling on this motion.

At oral argument, and in claimants' reply brief, claimants averred that the accident site, while owned by the State, was within the "jurisdiction" of the TBTA rather than New York City (Roper Aff. at 4 n 2 [characterizing deposition testimony as showing that "jurisdiction (which included the responsibility to maintain and repair) over the area of the Staten Island Expressway from a point East of the Hylan Boulevard Ramp had been ceded to the TBTA," but "jurisdiction and ownership are two different things, so the TBTA's contracting for repairs would be absolutely no indication of ownership"]). The assertion that the accident site fell within the TBTA's jurisdiction also finds support from the contract between TBTA and Sol, and statements in the testimony of both Rajakaruna and Gualtieri that the area under TBTA jurisdiction ended to the west of the Lilly Pond Avenue overpass (Gualtieri Dep. at 45; Rajakarunah Dep. at 39).

Discussion

To prevail on their motion for summary judgment, claimants must make a prima facie showing by tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of [*6]New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Once this showing has been made, the burden shifts to defendant to produce evidentiary proof in admissible form sufficient to establish the existence of a material issue of fact, which requires a trial of the action (see Zuckerman, 49 NY2d at 562). If claimants fail to meet their burden, summary judgment must be denied regardless of the sufficiency of defendant's response (see Winegrad, 64 NY2d at 853).

Both parties have submitted affirmations by attorneys without personal knowledge of the facts. Such affirmations are of no probative value on this motion (see Zuckerman, 49 NY2d at 563; Prince v Accardo, 54 AD3d 837 [2d Dept 2008]). They may, however, be used as a vehicle for submission of admissible documentary evidence (see Zuckerman, 49 NY2d at 563).

The above standards must be applied against the backdrop of the substantive law at issue — in this case Labor Law § 240 (1). That statute provides in pertinent part: "All contractors and owners and their agents, except owners of one and two-family dwellings who contract for but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons, ropes, and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed."

Claimants have submitted evidence, in the form of the affidavit and testimony of Mr. Amerino, of a statutory breach. Defendant has not addressed this issue in its papers, and instead addresses its opposition to the question of ownership.

Claimants contend, moreover, that in the event of such breach, the statute imposes strict liability on owners for injuries falling within its ambit, regardless of whether the owner had control of the worksite, or contracted for the work (e.g., Fotunato Aff. ¶ 4). There is, indeed, language in the caselaw that seems to support this position (see e.g. Sanatass v Consolidated Inv. Co. Inc., 10 NY3d 333, 339 [2008] ["it is clear that the statutory duty imposed by this strict liability provision is nondelegable and that an owner is liable for a violation of the section even though the job was performed by an independent contractor over which it exercised no supervision or control'"], quoting Rocvich v Consolidated Edison Co., 78 NY2d 509, 513 [1991]). In Morton v State of New York, (15 NY3d 50 [2010]), however, the Court of Appeals stated that "ownership of the premises where the accident occurred—standing alone—is not enough to impose liability under Labor Law § 241 (6) . . . Rather [there must also be] some nexus between the owner and the worker, whether by a lease agreement or grant of an easement, or other property interest'" (Id. at 56, quoting Abbatiello v Lancaster Studio Assoc., 3 NY3d 46, 51 [2004]).

I need not decide, however, whether Morton applies in the same manner to claims under section 240(1), or whether claimants' present submissions demonstrate the requisite nexus in this case. That is because, for reasons set forth below, I find that claimants have not met their burden of showing that there is no issue of material fact as to the State's ownership of the property at issue.

For the same reason, I shall decide this motion without consideration of claimants' supplemental affirmation, which specifically addressed the "nexus" question. Further, I find that this submission is not properly before the Court. Supplemental affirmations should be "sparingly [*7]used to clarify limited issues, and should not be used as a matter of course to correct deficiencies in a party's moving or answering papers" (Ostrov v Rozbruch, 91 AD3d 147, 155 [1st Dept 2012] [reversing denial of defendant's summary judgment motion, where the court directed supplemental submissions from plaintiff]). Yet that is precisely what claimants seek to do here — to present evidence of a "nexus" between the State and the injured worker, which was absent from their moving papers. Moreover, in this case — unlike Ostrov — the Court did not even extend the time for summary judgment filings, nor did it direct or permit additional submissions; it simply noted a legal issue to be addressed at oral argument.[FN5]

Further, allowing the moving party to submit entirely new evidence on a summary judgment motion after the deadline for filing such motion (and the return date) has passed would be tantamount to allowing a late summary judgment motion without good cause, and would violate the principle established in Brill v City of New York (2 NY3d 648 [2004]) and its progeny that summary judgment deadlines are to be strictly enforced.[FN6]

With the appropriate legal standards and the record before me thus clarified, I turn to the arguments claimants have put forward to demonstrate State ownership of the accident site.

1.The Highway Law

Claimants argue that, by law, "the State New York is the owner of Arterial Highways in the City of New York" (Fortunato Aff. ¶ 16). This assertion is premised upon Article XII-B of the Highway Law, entitled "Arterial Highways Through Cities." An arterial highway is a highway running through a locality and connecting it to State highways (see Nowlin v City of New York, 81 NY2d 81, 86 [1993]). Article XII-B was passed in 1944 to provide for the funding and construction of such highways as part of the State highway system (see Highway Law § 349-b). Under this article, the State is "empowered" to expend funds for the purchase and construction of arterial highways; when such a highway is completed in New York City, "jurisdiction" of the road is returned to the City, while the State retains ownership and "continuing maintenance responsibility" (Nowlin, 81 NY2d at 87). Such transfer of jurisdiction is carried out through an official order (see Highway Law § 349-c [3.4]). While the statute authorizes the State to obtain such property as might be necessary for the building of arterial highways, it also permits the City to acquire "all or any part of the property needed for the system in the event that sufficient state funds are not available" (Highway Law § 349-c[3.3]; see also [*8]Albanese v City of New York, 5 NY3d 217, 220 [2005] ["the City may itself initiate construction projects and thus take on the function of an owner"]).

Article XII-B lists certain routes within New York City that are "designated" under the statute, including the "Staten Island [E]xpressway from Goethals [B]ridge to the Verrazano-Narrows [B]ridge with a connection to Bayonne [B]ridge" (Highway Law § 349-f). Such designation, however, does not by itself render the roadway an arterial highway, much less vest ownership in the State. Rather, "no public street, main route or thoroughfare or any portion thereof, that is designated in [Article XII-B], shall be deemed to be a part of the system of highways of the state of New York for purposes of maintenance and repair, until (1) such public street, main route or thoroughfare or any portion thereof shall have been constructed, reconstructed or improved as provided in this article, and (2) such commissioner shall have issued an official order declaring such public street, main route or thoroughfare or any portion thereof . . . to be a part of such system of highways for such purposes of maintenance and repair" (Highway Law § 349-d). Absent these steps, no ownership interest is vested in the State merely because the statute gives it the authority to construct or improve the roadway (see McCormick v State of New York, UID No. 2004-016-055, Marin, J. [Ct Cl Sept. 17, 2004] [Article XII-B gives State the "right to make improvements in the named roadways, it did not transfer jurisdiction over them"; fact that State "could have undertaken improvements" to roadway not grounds for imposing liability on State for alleged negligence there]).

In short, the mere fact that the Staten Island Expressway is listed in section 349-f does not, without more, show State ownership of all land on and adjacent to that highway. Yet claimants make no showing on this motion that the statutory conditions have been met as to the accident site, much less show the absence of an issue of material fact on this question. Indeed, claimants now aver (as they confirmed at oral argument) that the entity with jurisdiction over the repair site was not the City but the TBTA, a state public authority. Article XII-B, however, addresses roads that are under the jurisdiction of a locality; it does not reference the status of property under the jurisdiction or ownership of a public authority (see Nowlin, 81 NY2d at 86 [when State has completed construction of an arterial highway, the State must "return jurisdiction' of the roadway to the City"] [emphasis added]; Matter of City of New York v State of New York, 98 NY2d 740, 742 [2002] ["[i]n carrying out its duties under article XII-B, the Department of Transportation has entered into arterial highway maintenance and repair agreements with affected cities"] [emphasis added]). And while the statute references the "Staten Island Expressway," it does not set the specific endpoint of that highway, and thereby make clear that the site of Amerino's accident was within its bounds.

Thus, given that there is evidence in the record on summary judgment that the accident site was under TBTA jurisdiction, and no proof that the State designated the specific location at issue as part of an arterial highway, claimants have not demonstrated the absence of a material issue of fact as to the State's ownership by reference to Article XII-B.

2.State's Failure to Produce the "Damage Map"

Claimants contend that the State's failure to produce the damage map gives rise to a negative inference against the defendant, and that such inference can sustain claimants' prima [*9]facie burden. Specifically, they argue that in light of the State's admission that "the Damage Map' cannot be located or exchanged, defendant THE STATE OF NEW YORK cannot now purport to deny ownership of the accident location" (Fortunato Aff. ¶ 12).

Granting judgment in a party's favor because its adversary has failed to produce discovery material is a "drastic" remedy, that is "appropriate only when less severe sanctions have been ruled out" (Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58, 60 [1st Dept 2002]). A lesser sanction, such as the drawing of an adverse inference against defendant, is warranted as a remedy for improperly withholding or destroying documents when "the missing evidence does not deprive the moving party of the ability to establish his or her case" (Barnes v Paulin, 52 AD3d 754, 755 [2d Dept 2008]; see also Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 719 [2d Dept 2009] [dismissal for failure to produce relevant evidence not warranted without a showing of intentional or bad faith misconduct, or that loss of evidence left party without means to proceed]). The burden is on claimants to "clearly establish" that the unavailability of the document "fatally compromised [their] ability to prosecute the action" (Coleman v Putnam Hosp. Ctr., 74 AD3d 1009, 1011 [2d Dept 2010] [internal quotations omitted]), or that the defendant acted "willfully, contumaciously or in bad faith" (Favish v Tepler, 294 AD2d 396, 397 [2d Dept 2002]). While claimants cite numerous cases to argue that granting them summary judgment is appropriate here, many of the decisions on which they rely say precisely the opposite (see e.g. Seda v Epstein, 72 AD3d 455, 455-56 [1st Dept 2010] [upholding lower court's refusal to strike answer for spoliation; adverse inference charge was appropriate remedy]; Coleman, 74 AD3d at 1011 [defendant's failure to preserve important evidence without proffering excuse grounds for adverse inference charge, but court declined to strike answer]; Horizon, Inc. v Wolkowicki, 55 AD3d 337, 338 [1st Dept 2008] [defendants's failure to produce "essential" documents despite four orders warranted sanction, but appellate court modified order precluding defendants from introducing evidence on the issue to an adverse inference charge]).

Claimants have failed to show that the extraordinary remedy they seek is warranted here. Gaultieri, the witness on which claimants rely in this regard, did not testify that the damage map had ever been held by the State. Rather, he listed several kinds of records he "would" look to in determining where the State's ownership of the Staten Island Expressway ended, including "the damage map [,] . . . the Board of Estimate Resolutions and, possibly . . . the condemnation order" (Gualtieri Dep. at 70). Indeed, some of his testimony can be read to say that this kind of document had been maintained by the City, but not the State (Gualtieri Dep. at 16 ["They [the New York City Board of Estimate] kept records — unlike my own agency, they kept records which are available today"] [emphasis added]). Further, claimants have presented no evidence that the State willfully destroyed this document, and Gualtieri has provided a sworn statement that he conducted a "thorough an extensive search" for this document, to no avail (Gualtieri Aff. ¶ 4). Claimants contend that the proof of the State's possession of the damage map is provided as well in Rajakaruna's testimony, when she stated that she had a map "showing which highways the state own[s]" (Roper Aff. ¶ 22). But as noted supra p.8, it is not self-evident that these two maps are one and the same.

Finally, Gualtieri's testimony on the damage map indicated that it is relevant to determining state ownership of land along the Staten Island Expressway, by delineating those parcels the State had to acquire and excluding those previously owned by the City (in which the [*10]State did not acquire an ownership interest). But as stated above, the record contains evidence, including claimants' own admissions, that it is the TBTA that has jurisdiction over the property at issue. Gualtieri's deposition is, at best, unclear as to whether the map is relevant to the respective ownership interests of the State vis-a-vis the TBTA.[FN7]

In light of the foregoing, the record here is inadequate to justify the severe sanction sought by claimants, and the State's failure to produce the damage map is thus an insufficient basis on which to grant summary judgment.

3.The DOT Map

Because neither the Highway Law nor the failure of the State to produce the damage map provides a basis for claimants' motion, their motion rests on the premise that the DOT Map demonstrates the absence of a question of material fact on the issue of ownership. That map indeed appears to show that state ownership extends over the accident site. The State argues that this is an "unofficial" document, supporting this contention by reference to the testimony of Condon, who stated that the DOT Map was "a State unofficial document that was supposed to be use[d] for in-house only" (Condon Dep. at 193). Claimants contend that Condon acknowledged by this testimony that the document is a State record, and that even if this is not the case, it is "a document maintained by the New York City Department of Transportation, admissible pursuant to the Government document exception and sufficient to meet plaintiff's prima facie burden of proving [defendant's] ownership" (Roper Aff. ¶ 26).

Claimants have not, however, demonstrated the document's admissibility for purposes of this motion. It is not sufficient to show that a City employee relied on the document to avoid the hearsay bar as an official record; rather, the official who prepared it must be "required or authorized . . . by statute or nature of the duty of the office" to compile such record (People v Smith, 258 AD2d 245, 248 [4th Dept 1999], lv denied 94 NY2d 829 [1999][internal quotations and citation omitted]). The present record does not reveal who made this map, nor does it elucidate a duty or statute under which it was prepared. Under these circumstances, I cannot find that claimants have shown its admissibility for purposes of the present motion, as a basis for a summary judgment ruling in their favor.[FN8]

In any case, to the extent the document is admissible under the common law official record exception to the hearsay rule, it is "not prima facie evidence of the facts contained therein [*11]. . . but merely some evidence which the trier of fact is free to disbelieve even though the adverse party offers no evidence on this point" (Martin v Ford Motor Co., 36 AD3d 867, 867 [2d Dept 2007]). Moreover, in the absence of any evidence as to who created the DOT map, or when it was prepared and on the basis of what sources, this document cannot carry the burden of a summary judgment motion on its shoulders. A document of unknown provenance, even if admissible, cannot generally be used to demonstrate the absence of a material issue of fact (cf. Garrett v Ohlsen, 282 AD2d 807, 808 [3rd Dept 2001] [conclusory compilation of data without explanation of how it was derived insufficient to establish plaintiff's prima facie case on summary judgment]).

Finally, while claimants place great weight on the fact that the an employee of the City "relied" upon the map, the record before me indicates that Johnson-O'Neal was responsible for determining ownership in response to litigation-related requests (Johnson-O'Neal Dep. at 4-5). The fact that a non-party uses a document to respond to attorney inquiries does not render it admissible in the present matter, or demonstrative of the absence of an issue of material fact.

4.Conclusion

In sum, claimants have not submitted evidence that demonstrates the absence of an issue of material fact as to defendant's ownership of the accident site, and their motion must therefore be denied.

Nevertheless, I am concerned by the record created by the State on this motion. It is not clear why the State, which submitted an affidavit denying ownership in its motion to dismiss, has not made any such submission here, other than the affirmation of an attorney without personal knowledge. Nor is it clear why the State has not produced, either in response to discovery requests or in opposition to this motion, the ownership map its witness (Rajakaruna) stated that she had in her office, nor has come forward with any other specific and admissible evidence on this motion as to who precisely owns the accident site. Indeed, nothing in this opinion is intended to preclude the claimants from making such arguments as they deem appropriate and supportable prior to trial that they have not been given all of the discovery they have sought, and that some remedy short of summary judgment is warranted. (Nor is anything herein intended to prejudge the merits of such an application).

But summary judgment is a "drastic remedy" (Staten Island Hosp. v Home Ins. Co., 148 AD2d 522 [2d Dept 1989]) and claimants have not presented a prima facie case that there are no issues of undisputed material fact before me, so as to warrant granting their motion.

In view of the foregoing, it is

ORDERED that claimants' motion no. M-80595 be denied.

The Court will contact the parties upon the filing of this decision to schedule a pre-trial conference. [*12]Albany, New York March 26, 2012 DAVID A. WEINSTEIN Judge of the Court of Claims

Papers Considered

1. Claimant's Notice of Motion and Affirmation in Support of Motion for Summary Judgment, and annexed Exhibits.

2. Defendant's Affirmation in Opposition, and annexed Exhibits.

3. Claimant's Reply Affirmation, and annexed Exhibits.

4. Letter of Louis A. Badolato, Esq. to Court of January 24, 2012.

5. Letter of Joseph L. Paterno, Esq. to Court of January 27, 2012. Footnotes

Footnote 1:References in this opinion to "Amerino" are to Dominic.

Footnote 2:The State has responded to claimants' motion, but has not sought summary judgment itself. Claimants have not moved for summary judgment on their Labor Law §§ 200 and 241 (6) and common law negligence causes of action.

Footnote 3:The parties, at times, also use the term "damages map."

Footnote 4:Gualtieri also gave lengthy testimony regarding an exhibit characterized as "a drawing that shows the limit of the Staten Island Expressway" (Gualtieri Dep. at 46), although the witness later stated that the drawing indicated where the State's construction ended, not where its acquisition stopped (Id. at 70). None of the deposition exhibits has been introduced in the record on this motion and thus the nature and relevance of this document is not clear.

Footnote 5:The cases cited by claimants in support of their assertion that their filing was proper are inapposite (see Claimants' Letter to Court of Jan. 24, 2012). Those decisions (see e.g. Ambrosino v Village of Bronxville, 58 AD3d 649 [2d Dept 2009]) concern instances where the court granted some form of additional relief sua sponte without seeking the parties' input. Here, the Court simply asked the parties to address a particular decision relevant to this motion.

Footnote 6:I note, however, that I may consider the reply affirmation earlier submitted by claimants, notwithstanding that it contains additional testimony absent from their initial filing. The State has presented no objection to this submission, and a court may consider evidence submitted in reply when relevant to a response to defendant's argument (see Boone v City of New York, 92 AD3d 709, 710 [2d Dept 2012]); Ticor Tit. Guar. Co. v Bajraktari, 261 AD2d 156, 157 [1st Dept 1999]).

Footnote 7:As noted supra p.4-5, Gualtieri appears to state that the damage map is relevant to a determination of where the boundary lies between the Verrazano-Narrows Bridge and Staten Island Expressway (Gualtieri Dep. at 59, 70). It is not clear if that is because the map contains information relevant to the respective rights of the State and TBTA, or because the map might reveal some ownership interest in the Expressway held by the City, and therefore the State's own interest might terminate at a different point from the endpoint of the road transferred by the 1973 Official Order. If the latter is the case, and the damage map is only relevant to the State's rights vis-a-vis the City, it would play no role in demonstrating State ownership over the accident site.

Footnote 8:I do not agree with claimants' contention that Condon sufficiently "authenticated" the document as a State record to warrant summary judgment. The record contains other evidence — including the heading on the map itself — to indicate that it was prepared by New York City.