Zuckerman v. State , 618 N.Y.S.2d 917 ( 1994 )

Hart, J., dissents and votes to affirm the judgment appealed from, with the following memorandum:

It is my opinion, contrary to the conclusion of my colleagues in the majority, that the trial court acted properly in its interpretation of the relevant documents and correctly ruled that the State owed no duty to the injured claimant either by way of contract privity or under the common law. Contracts which are explicit and clearly set forth the parties agreement or agreements involve only questions of law and the construction of such documents is a matter for the court.

The claimant sued in the Court of Claims for injuries allegedly sustained when he slipped on a patch of ice at a parking facility located at the State University of New York (hereinafter the State or SUNY), Stony Brook, New York. The parking facility is owned, operated and maintained by the Dormitory Authority of the State of New York (hereafter the Authority). The Authority is an entity independent of the State.

The Authority entered into an agreement with Square Island, Inc. (hereinafter Square), whereby Square agreed to occupy, manage and control the parking facility and to be responsible for the parking garage’s day-to-day operations. Accordingly, Square was the in locus tenant.

The State agreed that the security force employed by its education facility, i.e., SUNY, would supply security at the premises and, if a dangerous condition was discovered by its employees, it would be brought to the attention of the management company. In addition, the State agreed when requested by the management company, to remove accumulated snow and ice and to cure any condition discovered if the management company failed to do so.

Due to the jurisdictional limits of the Court of Claims, neither the Authority as the owner, nor Square as the management company, were subject to suit before that court. The record is silent as to whether or not the injured claimant commenced an action against these entities in the State Supreme Court.

I do not agree with the majority’s conclusion that the State was an "occupant” of the premises. The State’s only relationship to the garage facility had its genesis in several written documents drafted by the Authority. A document must be interpreted by assigning reasonable import to its verbiage (see, Weinberg & Holman v Providence Washington Ins. Co., 254 NY 387; Huntington Coach Corp. v Board of Educ., 49 AD2d 761, affd 40 NY2d 892; Brainard v New York Cent. R. R. Co., 242 NY 125). In my opinion, contrary to the majority’s conclusion, the documents created neither an ownership, possessor, occupant, or tenant status in the State. Moreover, the agreements created no duty running to third parties (Pittsburgh Coke & Chem. Co. v Hollo, 421 F Supp 908, affd 560 F2d 1089; Suburban Club v Town of Huntington, 56 Misc 2d 715).

I disagree that the status of the State in the case at bar equates with that of the defendants in the decision cited by the majority (see, Putnam v Stout, 38 NY2d 607). Being neither owner, occupant, or possessor, the State owed no common law duty of reasonable care attributable to a land owner or a non-owner exclusive occupier. Absent a duty of care to the person injured, a party cannot be held liable in negligence (see, Palsgraf v Long Is. R. R. Co., 248 NY 339; Zadarosni v F. & W. Restauranteurs, 192 AD2d 1051; Balsam v Delma Eng’g Corp., 139 AD2d 292). On the contrary the Authority owner, and Square as occupant or possessor, owed such a duty to the injured claimant (Putnam v Stout, 38 NY2d 607, supra; Willis v Young Men’s Christian Assn., 28 NY2d 375).

In sum, where as here the State owed neither a contractual nor a common law duty to the injured claimant I would affirm the dismissal of the complaint by the Court of Claims.