| Semzock v State of New York |
| 2012 NY Slip Op 05689 [97 AD3d 1012] |
| July 19, 2012 |
| Appellate Division, Third Department |
| Charles W. Semzock, Appellant, v State of New York,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of counsel), forrespondent.
Malone Jr., J. Appeal from an order of the Court of Claims (Milano, J.), entered April 4,2011, which granted defendant's motion for summary judgment dismissing the claim.
Claimant commenced this action in 2007 seeking damages for injuries he suffered as a resultof a motor vehicle accident that occurred at the crest of a hill on Spier Falls Road, also known asCounty Route 28, in the Town of Moreau, Saratoga County near a roadside parking/pull-off area.Claimant alleges, among other things, that defendant owns the land on which the pull-off area islocated and that defendant negligently designed, constructed and maintained the area. Followingjoinder of issue and some discovery, defendant moved in 2008 for summary judgment dismissingthe claim, which motion the Court of Claims apparently denied pending discovery. Followingfurther discovery, defendant again moved in 2010 for summary judgment dismissing the claim.The court granted the motion and dismissed the claim, and claimant now appeals.
Generally, " '[l]iability for an injury caused by a dangerous or defective condition on propertyis . . . predicated upon ownership, occupancy, control or special use of theproperty[.] . . . Where none is present, a party cannot be held liable' " (Gadani v Dormitory Auth. of State ofN.Y., 64 AD3d 1098, 1102 [2009], quoting Seymour v David W. Mapes, Inc., 22 AD3d 1012, 1013 [2005]; accord Rackowski v Realty USA, 82AD3d 1475, 1476 [2011]; see Ernest v Red Cr. Cent. School Dist., 93 NY2d 664,675 [1999]). Here, in support of its motion for summary [*2]judgment, defendant provided sufficient admissible evidence toestablish that it has never owned, maintained or otherwise controlled or made special use of theroadside pull-off, and that the pull-off is, or was formerly, owned and maintained by the NiagaraMohawk Power Corporation.[FN*]This evidence satisfied defendant's initial burden as the movant for summary judgmentdismissing the claim (see Battaglia vTown of Bethlehem, 46 AD3d 1151, 1154 [2007]). Claimant's evidence in opposition,including evidence that defendant may have cleared litter from the pull-off area and evidence thatone of defendant's agents had at times used the area to conduct bald eagle surveys, wasinsufficient to demonstrate that an issue of fact existed as to defendant's ownership, control orspecial use of the area at issue (see Kiselis v Speculator Chamber of Commerce, 234AD2d 677, 679 [1996]).
Finally, contrary to claimant's assertion, the instant motion for summary judgment was notpremature inasmuch as there is no indication that further discovery might reveal material factsthat are in defendant's exclusive possession (see Welsh v County of Albany, 235 AD2d820, 822 [1997]). We will not review claimant's proffered alternative basis for liability as it israised for the first time on appeal (see Rielly v Naftal, 300 AD2d 811 [2002]), and hisremaining contentions have been considered and found to be without merit.
Peters, P.J., Lahtinen, Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Claimant acknowledges thatSpier Falls Road/County Route 28 is owned by Saratoga County.