Preliminary Statement. This Memorandum of Law, along with the accompanying Affidavits, are respectfully

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1 STATE OF NEW YORK : COURT OF CLAIMS In the Matter of the Claim of CHARLES W. SEMZOCK, - against - STATE OF NEW YORK, Claimant, MEMORANDUM OF LAW CLAIM NO JUDGE FRANK P. MILANO Defendant. Preliminary Statement This Memorandum of Law, along with the accompanying Affidavits, are respectfully submitted in support of the Motion for Summary Judgment on behalf of the State of New York. For the reasons more particularly set forth below, including that the defendant did not own or control the land upon which the claimant was injured and therefore owes no duty of care to the claimant, the claim should be dismissed and the relief requested by the claimant denied in its entirety. Statement of Facts On April 22, 2007 Charles Semzock was driving his motorcycle northbound on Route 28, a County route of Saratoga County, also known as Spier Falls Road. A third-party vehicle was allegedly pulled over on a "pull-off or parking area" on County Route 28. Purportedly the thirdparty vehicle exited the area and entered the roadway northbound. The third-party vehicle pulled in front of Charles Semzock, at which time he collided with the vehicle. Charles Semzock received substantial injuries from the motorcycle accident.

2 Claimant, Charles Semzock, brought this action for personal injuries and economic loss sustained by the claimant as a result of his involvement in the motorcycle accident. Claimant alleges the accident was due to a "dangerous and defective condition created by the State of New York, including but not limited to the New York State Department of Transportation, and/or the New York State Office of Parks, Recreation and Historic Preservation, its agents, servants and/or employees by the negligent designing, planning, constructing, creating, placing, installing, operating, controlling, maintaining, improving, enlarging, repairing or signing of a vehicle pulloff/parking area in or near the Moreau Lake State Park and Spier Falls Road or County Route 28 in the Town of Moreau." 1 The claim was filed on September 14, The defendant filed an answer on October 22, Defendant filed a motion for summary judgment on March 24, On July 30, 2008, this Court ordered that the motion was denied without prejudice pending further discovery. Since July 2008, the parties have engaged in significant discovery. Defendant has made witnesses available to claimant for examination, as well as provided hundreds of pages of documentation. Michael Greenslade was the park manager of Moreu Lake State Park at the time of the alleged accident. During his tenure, Mr. Greenslade had been to the area of the accident, generally using the "pull-off area" for the eagle surveys. 2 (Greenslade EBT page 12 lines 10-13). He testified he had never seen anyone specifically maintain or control the area. (Greenslade EBT page 14 lines 16-23; page 15 lines 1-12) During his tenure the State of New York did not 1 See, the Complaint p. 2 para Eagle surveys are surveys done of bald eagles. Mr. Greenslade testified that he participated in conducting these surveys during his tenure as Park Manager of Moreu Lake State Park. The surveys were done at numerous vantage points throughout the park and state, in order to monitor the bald eagles population. The area of the accident was one of many places Mr. Greenslade went to in order to do eagle surveys. He can recall being there on a limited number of occasions. 2

3 perform any maintenance type function on the "pull-off area" in question on Spier Falls Road (Greenslade EBT page 22 lines 20-23; page 23 line 1). Mr. Greenslade stated the State of New York did not maintain the "pull-off areas," but they might remove a tree that was blocking a roadway or pull-off, or pick up litter. (Greenslade EBT page 38 lines 18-23; page 39 lines 1-7). Mr. Greenslade further testified it is his belief the area is either County property or owned by Erie Boulevard Hydropower, LCC, as per the Federal Energy Regulatory Commission (FERC) boundary lines, but he is not personally aware of the exact boundary line in the area (Greenslade EBT page 23 lines 6-23; page 24 lines 1-4; page 30 lines 19-23; page 31 line 1). Mr. Greenslade testified about the use of boundary signs. He stated "we would use them as posted signs marking the state land boundaries, and we would use survey maps that we had to do the outer boundaries of the park or some end holdings that we had. Along the roadways, they are more informational than anything else. Because there were those varying entities between FERC, the County, and everybody else, we just wanted to let people know that you were basically in state park land or driving through state park land." (Greenslade EBT page 62 lines 17-23; page 63 lines 1-4). When Mr. Coughlin continued questioning him on the placement of boundary signs, Mr. Greenslade stated "we would keep it on our side of the boundary, facing to the outside of the property." (Greenslade EBT page 63 lines 8-9). Furthermore, upon questioning by Mr. Coughlin: Q: So that if you're standing there reading the sign, if I understand correctly, you would be within state land. A: No. You would be on the other entity's land (Greenslade EBT page 66 lines 20-23; page 67 line 1). Robert W. Reinhardt, the Director of Planning for the New York State Office of Parks, 3

4 Recreation and Historic Planning (Parks) was also examined before trial. Mr. Reinhardt testified that the State of New York through Parks never defined, listed, documented or inventoried "pulloffs" along the edge of the road (Reinhardt EBT page ; page 39 lines 1-18). When the master plan refers to improving pull-offs it is not talking about the "pull-off or parking area" in question, which was never defined, listed, documented or inventoried in the master plan (Reinhardt EBT pages 38-46). 3 There may be areas where a car could pull off but they are not designated areas. (Reinhardt EBT page 60 lines 5-6). Defendant does not own, control or possess the "pull-off/parking area" where the alleged claim arose. The road where the motorcycle accident took place is a County route, Spier Falls Road or County Route 28 in the Town of Moreau. The accident location is not situated on any State Highway or roadway owned, controlled or maintained by the New York State Department of Transportation ("NYSDOT"). The accident location as described in the claim is also not the property of New York State Office of Parks, Recreation and Historic Preservation ("Parks"). Summary Judgment Standard The standard for granting a summary judgment motion is well established. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985)), and such showing must be made by producing evidentiary proof in admissible form. (Zuckerman v. City of New York, 49 NY2d 557, 562 (1980)). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact 3 The master plan is looking at improving the pull offs at the boat launches and the trailheads. (page 44 lines 19-23). 4

5 or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v. Prospect Hosp., 68 NY2d 320 (1986)). "Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion." (Amatulli-v Delhi Constr. Corp., 77 NY2d 525 (1991)). Legal Argument I. The State of New York did not possess ownership or control over the site of the accident. In McGill v. Caldors, Inc., defendant's submissions in support of its motion for summary judgment showed that defendant was not in possession of the parking lot and did not otherwise have any right to maintain or control that area. (135 A.D.2d 1041, 1043 (3d Dept., 1987)) "Upon this showing, plaintiffs were required to come forward with sufficient proof in evidentiary form to demonstrate that Caldor had, or was chargeable with, control of the parking lot where plaintiff fell, or that Caldor actually created the hazard." The court in Caldors found plaintiff's affidavit "patently insufficient and purely speculative" which did not demonstrate sufficient proof of a material issue of fact (135 A.D.2d 1041, 1043; see, Dunn v. Cohoes Mem. Hosp., 112 A.D.2d 620 (3d Dept., 1985); Hasbrouck v. City of Gloversville, 102 A.D.2d 905 (3d Dept., 1984), affd. 63 N.Y.2d 916 (1984)). In the present case, defendant does not possess ownership or control over Spier Falls Road or County Route 28 in the Town of Moreau. The Spier Falls Road, or County Route 28, in the Town of Moreau, is a County road that runs through the Monreau State Park (hereinafter referred to as "the Park.") The defendant possesses ownership or control over the Park. The area where the incident allegedly took place, the "pull-off/parking area," is not property of the Park or NYSDOT. The examinations before trial of Mr. Greenslade and Mr. Reinhardt fully support the lack on control or ownership over the area, and that there was never any design, construction, 5

6 creation, repair, improvement or signage of the area itself undertaken by the defendant. This Court had previously been concerned about the "State Boundary Signs" in its order of June 30, 2008, which this Court said demonstrated a need for additional discovery on the issue of ownership or special use. Mr. Greenslade spoke about the posted signs on the boundaries of the Park property in his deposition. He stated someone looking at the signs is not on state property as they indicate the boundary. Therefore a person on the County road or the area of the accident would not be on Park property. Claimant cannot provide sufficient evidence beyond speculation that defendant was in control of, created or maintained the "pull-off/parking area." The defendant does not own, possess or control the "pull-off/parking area" in question. There is no evidence the defendant ever designed, planned, constructed, created, placed, installed, operated, controlled, maintained or had any responsibility with regard to the area where the incident allegedly took place. II. The State of New York has no legal duty of care, to warn or improve the site of the accident. a. The State of New York has no ownership, occupancy or control. Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property. (Millman v. Citibank, 216 A.D.2d 278 (2d Depart. 1995); see, Masterson v. Knox, 233 A.D.2d 549 (3d Depart. 1996)). The determinative question is one of possession or control. (Sullivan v. Specialty Glass Corp., 229 A.D.2d 572 (2d Depart. 1996); McGill v. Caldors, Inc., supra). "Where none of these factors are present, a party cannot be held liable for injuries caused by the allegedly defective condition." (Gover v. Mastic Beach Property Owners Ass'n, 57 A.D.3d 729 (2d Depart. 2008); see Dugue v 1818 Newkirk Mgt. Corp., 301 A.D.2d 561, 562 (2d Depart. 2003); Aversano v City of New York, 6

7 265 A.D.2d 437 (2d Depart. 1999)). As discussed supra, the defendant, State of New York did not have ownership, occupancy nor control of the area of the accident; without the required element of possession or control the question of liability fails. b. The State of New York has no right or obligation to maintain the area. In Welwood v. Association for Children With Down Syndrome, Inc., the evidentiary submissions by the defendant third-party plaintiff demonstrated that it did not have an exclusive right to possession of the parking lot, and that it had no right or obligation to maintain this area. (248 A.D.2d 708 (3d Depart. 1998)). Moreover, there was no evidence that the defendant thirdparty plaintiff created the condition which caused the injured plaintiff's accident. (Welwood, 248 A.D.2d at 708). Since the defendant third-party plaintiff owed the injured plaintiff no duty of care to maintain the parking lot, it cannot be held liable for permitting the existence of a dangerous condition (Id.; see, Masterson v. Knox, 233 A.D.2d 549 (3d Depart. 1996)(holding no duty of care where physician did not create condition, own or retain any control over parking lot, or have authority to correct condition, even though physician, his employees, and his patients had license to park in lot); Millman v. Citibank, 216 A.D.2d 278 (2d Depart. 1995); Hoberman v. Kids R Us, 187 A.D.2d 187 (1st Depart. 1993); McGill v. Caldors, Inc., supra). The defendant's lack of possession or ownership or right to control the property is directly related to a lack of a duty of care. Defendant did not create, place, install, operate, maintain, improve, enlarge, construct, alter, repair or change the "pull-off/park area" in any such way to create a duty of care. Therefore the State of New York has no duty or obligation to maintain the area. c. The State of New York has no duty to warn of a latent, dangerous condition. Ordinarily, a landowner's duty to warn of a latent, dangerous condition on his property is 7

8 a natural counterpart to his duty to maintain his property in a reasonably safe condition (Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636 (2004); see Tagle v Jakob, 97 N.Y.2d 165, 169 (2001); Basso v Miller, 40 N.Y.2d 233, 239 (1976); Soich v Farone, 307 A.D.2d 658, 659 (3d Dept 2003)). As a general matter, an owner owes no duty to warn or to protect others from a defective or dangerous condition on neighboring premises, unless the owner had created or contributed to it (see Gehler v. City of New York, 261 A.D.2d 506 (2d Dept.1999); Pensabene v. Incorporated Vil. of Val. Stream, 202 A.D.2d 486 (2d Dept.1994); Gipson v. Veley, 192 A.D.2d 826 (3d Dept.1993)). The reason for such a rule is obvious-a person who lacks ownership or control of property cannot fairly be held accountable for injuries resulting from a hazard on the property (Galindo v. Town of Clarkstown, 2 N.Y.3d 633, 636 (2004)). Generally "it would create an 'unreasonably onerous' burden to require a landowner to evaluate and warn others about a danger caused by a condition existing on neighboring land." (Galindo v. Town of Clarkstown, 305 A.D.2d 538, 539 (2d Depart. 2003)). Therefore in determining duty the court takes into consideration factors such as the reasonable expectations of parties and society generally, the proliferation of claims, the likelihood of unlimited or insurerlike liability, disproportionate risk and reparation allocation (Hamilton v. Beretta U.S.A Corp., 96 N.Y.2d 222, 232 (2001); see also, Darby v. Compagnie Natl. Air France, 96 N.Y.2d 343, 347 (2001)(duty must comport with what is socially, culturally and economically acceptable )). In the present case, the defendant does not have ownership, occupancy, control, nor any other allegations from the claim, where the incident allegedly took place. Defendant did not create the condition that allegedly caused the motorcycle accident, nor did the defendant have a duty to correct said condition. It would be unreasonable for the court to impose a duty upon the defendant. 8

9 III. Liability cannot be imposed on the State of New York in the absence of a legal duty. A finding of negligence is based only upon the breach of a legal duty. If the defendant owes no duty to the claimant in connection with the acts complained of, the action must fail. It is for the courts to determine whether any duty exists on the onset (see, Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222 (2001); Waters v. New York City Hous. Auth., 69 N.Y.2d 225 (1987)). In assessing the scope and consequences of civil responsibility, courts define the boundaries of duty to comport with what is socially, culturally and economically acceptable (Darby v. Compagnie National Air France, 96 N.Y.2d 343, 347 (2001); see, Pulka v. Edelman, 40 N.Y.2d 781, ; Tobin v. Grossman, 24 N.Y.2d 609, 619 (1969)). In order for the defendant, the State of New York, to be found negligent in this claim there must be a recognizable legal duty of care to this claimant. Without a legal duty found by this Court, the claim cannot sustain for lack of a cause of action. The defendant did not possess ownership or control over the site to establish a duty of care, as discussed supra, therefore there is no cause of action for claimant against this defendant. CONCLUSION For all of the foregoing reasons, including that the defendant did not own or control the land upon which the claimant was injured and therefore owes no duty of care to the claimant, defendants are entitled to judgment as a matter of law and the Complaint should be dismissed in its entirety. 9