        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1438
CA 14-00816
PRESENT: SCUDDER, P.J., CENTRA, CARNI, AND SCONIERS, JJ.


KATHLEEN E. ST. JOHN, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK AND NEW YORK STATE THRUWAY
AUTHORITY, DEFENDANTS-RESPONDENTS.
(CLAIM NO. 112856.)


CANTOR, DOLCE & PANEPINTO, P.C., BUFFALO (ANNE M. WHEELER OF COUNSEL),
FOR CLAIMANT-APPELLANT.

RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (MICHAEL
FEELEY OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Court of Claims (Jeremiah J.
Moriarty, III, A.J.), entered July 30, 2013. The order, among other
things, granted the motion of defendants for summary judgment and
dismissed the claim.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Claimant commenced this Labor Law and common-law
negligence action seeking damages for injuries she sustained when she
allegedly slipped or tripped as she attempted to attach a piece of
equipment to the hitch of a pickup truck. At the time of the
accident, claimant was employed by a contractor hired by defendant
State of New York (State) for a highway reconstruction project. The
accident occurred at a parking lot leased by claimant’s employer for,
inter alia, the storage of material and equipment used on the project,
and claimant and her coworker were preparing to transport a large,
two-wheeled light plant to the construction site when she slipped or
tripped.

     The Court of Claims properly granted defendants’ motion seeking
summary judgment dismissing the claim and denied claimant’s cross
motion seeking, inter alia, partial summary judgment on the issue of
liability with respect to her Labor Law § 241 (6) claim. Defendants
established as a matter of law that purported defendant New York State
Thruway Authority had no connection with the project and was
erroneously named a defendant, and claimant failed to raise a triable
issue of fact (see Koch v Haven-Busch Co., 41 AD2d 774, 774; see
generally Zuckerman v City of New York, 49 NY2d 557, 562). Defendants
further established as a matter of law that the State is not an
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                                                         CA 14-00816

“owner” for purposes of liability under Labor Law § 241 (6). The
State “was the owner of the construction site, but was not the owner
of the property where [claimant] was injured” (Sanzone v City of Rome,
292 AD2d 777, 778), and it had no legal authority over the parking
lot, which was located on private property that had been leased by
claimant’s employer (see Farruggia v Town of Penfield, 119 AD3d 1320,
1321, lv denied 24 NY3d 906). In addition, with respect to the Labor
Law § 200 and common-law negligence claims, the State established that
it “did not occupy, own, or control the [parking lot] and did not
employ it for a special use, and thus did not owe [claimant] a duty of
care” (Knight v Realty USA.com, Inc., 96 AD3d 1443, 1444). Claimant
failed to raise a triable issue of fact in response to defendants’
submissions (see Farruggia, 119 AD3d at 1322; see generally Zuckerman,
49 NY2d at 562). Inasmuch as the claim is dismissed, there is no
basis for claimant to seek leave to amend her bill of particulars (see
Farruggia, 119 AD3d at 1322) and, thus, the court properly denied that
part of claimant’s cross motion seeking such leave.




Entered:   January 2, 2015                     Frances E. Cafarell
                                               Clerk of the Court
