Sharen Branch,, Appellant,v.County of Sullivan, Respondent.BriefN.Y.May 7, 2015State of New York Court of Appeals BRIEF FOR DEFENDANT-RESPONDENT DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Appellate Division Case No. 516550 Supreme Court, Sullivan County, Index No. 0025/09 SHAREN BRANCH, As Administratrix of the Estate of ROBERT BASTIAN, Deceased, Plaintiff-Appellant, -against- COUNTY OF SULLIVAN, Defendant-Respondent. TO BE ARGUED BY: BRYAN R. KAPLAN COURT OF APPEALS NO. APL-2014-00143 TIME REQUESTED: 15 MINUTES THE LAW OFFICES OF BRYAN R. KAPLAN Attorney for Defendant-Respondent P.O. Box 1148 Monticello, New York 12701 (845) 701-1312 Date Completed: September 25, 2014 i TABLE OF CONTENTS PAGE QUESTIONS PRESENTED......................................................................................1 PRELIMINARY STATEMENT ...............................................................................2 STATEMENT OF FACTS ........................................................................................6 ARGUMENT I. THE APPEAL SHOULD BE DISMISSED AS THE PLAINTIFF- APPELLANT NEVER SERVED THE NOTICE OF APPEAL ON COUNSEL FOR THE DEFENDANT ............................................................9 II. THE DEFENDANT-RESPONDENT COUNTY OF SULLIVAN HAD NO NEXUS TO THE LOSS LOCATION AND THEREFORE DID NOT OWE THE PLAINTIFF-APPELLANT A DUTY OF CARE. AS SUCH, THE DEFENDANT-RESPONDENT CAN NOT BE HELD LIABLE FOR THE PLAINTIFF-APPELLANT’S UNTIMELY DEATH....................................................................................12 III. THE DEFENDANT-RESPONDENT COUNTY OF SULLIVAN IS A SEPARATE LEGAL ENTITY AND IS NOT ONE AND THE SAME AS SULLIVAN COUNTY COMMUNITY COLLEGE.................21 CONCLUSION........................................................................................................29 ii TABLE OF AUTHORITIES Caselaw Adamkiewicz v. Lansing, 288 A.D.2d 531, 732 N.Y.S.2d 135 (3rd Dept., 2001) ........................................................................................................................17 Bailey v. New York City Transit Authority, 270 A.D.2d 156, 704 N.Y.S.2d 582 (1st Dept., 2000) ................................................................................................16 Brown v. City of New York 60 N.Y.2d 893, 458 N.E.2d 1248 (1983).....................13 Chatelle v. North Country Community College, 100 A.D.3d 1332, 955 N.Y.S.2d 266 (3rd Dept., 2012) ..........................................................................24, 26 Christa Const., LLC v. Smith, 880 N.Y.S.2d 786, 2009 N.Y. Slip Op. 04786 (3rd Dept., 2009) .......................................................................................................16 Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372 (1987)......19, 20 Feinberg v. Saks & Co., 56 N.Y.2d 206, 436 N.E.2d 1279 (1982).........................13 Firth v. State of New York, 306 A.D.2d 666, 761 N.Y.S.2d 361, (3rd Dept., 2003) ........................................................................................................................22 Garrasi v. Dean, 75 A.D.3d 1138, 905 N.Y.S.2d 816 (4th Dept., 2010).................17 Harmon v. Adirondack Community College, 12 A.D.3d 746, 784 N.Y.S.2d 663 (3rd Dept., 2004) ..........................................................................................24, 26 Horacek-Hayden, Inc. v. Monroe County, 65 Misc.2d 196, 317 N.Y.S.2d 575 (Sup. Ct., Monroe County, 1970) .....................................................................26 Kihl v. Pfeffer, 94 N.Y.2d 118, 722 N.E.2d 55 (1999) ......................................11, 12 Matter of Estate of Barrie, 134 Misc.2d 440, 511 N.Y.S.2d 524 (Sur.Ct, Nassau County, 1987) ..............................................................................................17 Meyer v. Wiess, 25 A.D.2d 174, 268 N.Y.S.2d 226 (3rd Dept., 1966).....................26 iii Palmer v. Prescott, 208 A.D.2d 1065, 617 N.Y.S.2d 411 (3rd Dept., 1994)...........16 Santandrea v. Board of Trustees of Hudson Valley Community College, 70 A.D.3d 1238, 894 N.Y.S.2d 585 (3rd Dept., 2010) ............................................24, 27 Turrisi v. Ponderosa Inc., 179 A.D.2d 956, 578 N.Y.S.2d 724 (3rd Dept., 1992) ..................................................................................................................16, 17 Valdez v City of New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587 (2011).........18, 19, 20 Statutes N.Y. County Law §53..............................................................................................29 N.Y. CPLR §5501....................................................................................................13 N.Y. CPLR Rule 2103 .............................................................................................11 N.Y. CPLR Rule 2103(b).........................................................................................11 N.Y. Education Law §6301 .......................................................................................7 N.Y. Education Law §6306(4)...........................................................................14, 15 N.Y. Education Law §6306(5).....................................................................23, 25, 26 N.Y. Education Law §6308 .........................................................................27, 28, 29 N.Y. Real Property Actions and Proceedings Law §3101(1)..................................17 Regulations 8 N.Y.C.R.R. §603.5................................................................................................15 1 QUESTIONS PRESENTED 1. Was the Appellate Division, Third Department correct when it upheld the Supreme Court’s (Acting Justice Michael H. Melkonian) Decision and Order dismissing the plaintiff-appellant’s claims on the grounds that defendant-respondent County of Sullivan had no nexus to the loss location, and thus, owed no duty to the plaintiff-appellant? ANSWER: Yes, as the Appellate Division, Third Department properly found that the County of Sullivan had no nexus to the loss location, and therefore, in the absence of ownership, occupancy and control of the property where the incident occurred, owed no duty to the plaintiff-appellant. 2. Was the Appellate Division, Third Department correct when it upheld the Supreme Court’s (Acting Justice Michael H. Melkonian) Decision and Order finding that County of Sullivan is not an alter ego or the same entity as Sullivan County Community College? ANSWER: Yes, as the Appellate Division, Third Department properly found that County of Sullivan is merely the sponsor of the Sullivan County Community College and was not responsible for the day to day operations of Sullivan County Community College. 2 PRELIMINARY STATEMENT Plaintiff-Appellant seeks to overturn the Appellate Division, Third Department’s Memorandum and Order of December 12, 2013 (R-3-8), which affirmed the Supreme Court’s Decision And Order of the Honorable Michael H. Melkonian, A.J.S.C., granting the defendant-appellant’s motion for summary judgment on liability grounds (R-10-16). Thereafter, the plaintiff-appellant filed and served a motion to reargue the Appellate Division’s Memorandum and Order (R-3-8). That motion was also denied by the Appellate Division, Third Department. The plaintiff-appellant then made a Motion before this Honorable Court for Leave to Appeal to the Court of Appeals. That motion was granted by the Court of Appeals on June 12, 2014, allowing this case to be heard by the Court of Appeals (R- 1-2). As can be seen from the plaintiff-appellant’s original Notice of Appeal (R-9), there is no attached Affidavit of Service for service upon counsel for the defendant- respondent anywhere in the Record on Appeal. This office, counsel for the defendant- respondent herein, did not receive the plaintiff-appellant’s Notice of Appeal, until it was served with the Record on Appeal for the Notice of Appeal before the Appellate Division, Third Department. An Affidavit of Service for that Notice of Appeal has never been provided or produced, as one does not exist. 3 The defendant-respondent had previously moved for summary judgment on the grounds that they did not own, maintain or have any other responsibilities over the Sullivan County Community College dormitories, where the plaintiffs-appellant’s death occurred. Furthermore, the County of Sullivan has alleged that it did not owe a duty to the plaintiff, nor did it breach any such duty (R-37-40 and R-347-350). Despite claiming that the issue of ownership of the loss location was preserved (see, Appellant’s Brief at Page 3) for this Court’s review, in the plaintiff-appellant’s underlying Memorandum of Law (R-287-303) and affirmation in opposition (R-304- 307) to the underlying motion, the issue of an ultra vires or illegal transfer of the land where the accident occurred was never argued by the plaintiff-appellant. As such, that issue was not properly preserved for this appeal before the Court of Appeals. The lower Court ultimately found that Sullivan County Community College’s Board of Trustees is the “sole party responsible for the operation” of the Sullivan County Community College and its facilities (R-13). The Court also reasoned that the defendant-respondent County of Sullivan owed no duty of care to the plaintiff- appellant and cannot be held liable for the incident (R-14). The lower Court also found that the plaintiff-appellant failed to raise any triable issues of fact as to whether the County owed the plaintiffs-appellants a duty or breached that duty (R-15). Therefore, Judge Melkonian properly dismissed the 4 plaintiff-appellant’s Complaint in its entirety (R-11-16). The lower Court’s decision did not state specifically whether the County could be liable to the plaintiff-appellant for an incident that occurred in a building owned by a defendant-landowner that was never sued in this litigation (R-11-16). After the plaintiff-appellant appealed (R-9), this case was argued before the Appellate Division, Third Department. For the first time, in the Brief for Plaintiff- Appellant filed in the Appellate Division, Third Department, at pages 22-23, the plaintiff argued that the transfer of the property where the accident occurred was not proper under the law and thus had no legal effect. While now claiming that this issue was preserved for review by the Court of Appeals, the plaintiff-appellant never made such arguments in their opposition papers/memorandum of law in opposition to the County of Sullivan’s underlying motion for summary judgment. The Appellate Division, Third Department affirmed the lower Court’s order (R- 3-5) dismissing the plaintiff-appellant’s action. In doing so, the Appellate Division, Third Department held specifically that County of Sullivan is not an alter ego of Sullivan County Community College, as argued by the plaintiff-appellant (R-4). The Appellate Division, Third Department also found that aside from its role as sponsor and contributor to Sullivan County Community College’s budget, County of Sullivan had “no role in the day-today operation and management of the school. Moreover, the 5 defendant established that it did not own the building” where the loss occurred (R-4). For those reasons, the Appellate Division, Third Department found that the defendant-respondent County of Sullivan owed no duty to the plaintiff-appellant herein (R-4). 6 STATEMENT OF FACTS On November 8, 2007, while residing at the dormitories owned by Sullivan County Community College Dormitory Corporation (R-175, 176), the plaintiff- appellant Robert Bastian suffered a cardiac event which caused his death (R-63, 81, 86). A Notice of Claim was filed against the County by the plaintiff-appellant (R-18- 19), although the Notice of Claim was also sent separately to the Secretary of the Sullivan County Community College (R-17). Thereafter, the plaintiff-appellant served a Summons and Verified Compliant on or about January 5, 2009 against the County of Sullivan (hereinafter “County” or “defendant-respondent”) (R-20-25). On or about February 3, 2009, the defendant-respondent County served an Answer, specifically denying the allegations contained in the plaintiff-appellant’s Verified Complaint (R-27-31). Amongst the specific denials contained in that Answer were denials to the following allegation: that the “Defendant County of Sullivan owns and operates” SCCC and that the incident occurred “in a dormitory provided by the County of Sullivan” (R-21, 22, 27-28). The plaintiff-appellant Robert Bastian suffered his cardiac event at the dormitories for Sullivan County Community College, not on the college’s general campus or in a campus building (R-63). Significantly, the plaintiff-appellant never started an action against the owner of the property where this accident occurred; the 7 Sullivan County Community College Dormitory Corp. After he passed away, a Certificate of Death noted that the cause of the decedent’s death was “cardiomegaly”, or an abnormal enlargement of the heart (R- 81). The Autopsy Report listed the same cause of death (R-86). None of the medical records list the lack of an AED as a cause of or contributing factor to the plaintiff- appellant’s death. Ira Cohen, Esq., the County Treasurer for Sullivan County testified at a deposition during the discovery phase of this litigation (R-88, 92). Cohen testified that the County is the “sponsor” of Sullivan County Community College, pursuant to Education Law §6301 (R-93). According to Cohen, while the County approves and provides part of the budget for the community college each year, the County plays no role whatsoever as to how the community college spends those budgetary resources (R-103, 112). Cohen testified that Sullivan County Community College is capable of having suits brought directly against them, as they have their own liability insurance to cover negligence claims, such as the subject one (R-127-128). Cohen also submitted an Affidavit in support of the County’s motion for summary judgment, noting therein that the County transferred the property where the decedent’s untimely death took place, in 1998, or nearly 10 years prior to the plaintiff-appellant’s death (R-285). Ira 8 Cohen also noted that since he has been Treasurer of the County, which would encompass the time of the alleged incident, Sullivan County Community College (hereinafter “SCCC”) nor the Sullivan County Community College Dormitory Corp., had ever made specific requests to the County for the funding of or the purchase of automated external defibrillators or AEDs (R-285). There can be no dispute that the cardiac event suffered by the plaintiff-appellant Robert Bastian occurred not at SCCC, but rather in the dormitories owned by Sullivan County Community College Dormitory Corp. That fact is supported by several of the plaintiff-appellant’s pleadings for this matter (R-18, 22). That undisputed fact is also noted in the ambulance call report (R-63). The land that was used to build dormitories for SCCC students was deeded to the Sullivan County Community College Dormitory Corp. in 1998 by the County (R- 175-191). Thereafter, in 2002 County of Sullivan Industrial Development Agency was given deed to the loss location and on that same date, the land where the accident occurred was immediately transferred by deed to the Sullivan County Community College Dormitory Corp. (R-175). 9 ARGUMENT I. THE APPEAL SHOULD BE DISMISSED AS THE PLAINTIFF-APPELLANT NEVER SERVED THE NOTICE OF APPEAL ON COUNSEL FOR THE DEFENDANT As noted in the Brief for Defendant-Respondent served and filed with the Appellate Division, Third Department on July 5, 2014, the plaintiff-appellant never served a Notice of Appeal on counsel for defendant-respondent County. As can be seen in the Court of Appeal, Record on Appeal, there is no Affidavit of Service attached to the Notice of Appeal (R-9). It is not just that an Affidavit or Affirmation of Service was erroneously excluded from the Record on Appeal; rather it is because the Notice of Appeal was never served on counsel for defendant-respondent County of Sullivan. When the undersigned checked with the Sullivan County Clerk’s Office, whose “received” stamp can be seen on the notice of Appeal (R-9), all that was in their file was a Note of Issue, without an Affidavit of Service. It is for that reason that the within Appeal should be dismissed in its entirety without this Court even looking at the merits of this matter. While that issue was raised before the Appellate Division, Third Department (see, Brief for Defendant-Respondent, at pages 8-11), it was only addressed in a footnote to the the Appellate Division, Third Department’s Memorandum and Order (R-4). That footnote stated that because the defendant-respondent County had ample 10 time to respond to the plaintiff-appellant’s appeal and did not allege any prejudice, “we will treat the notice of appeal as valid” (R-4). However, the prejudice to the defendant-respondent County was argued and it is readily apparent; namely that to allow a party to proceed on an appeal without that party serving the Notice of Appeal on its adversary will, and has, caused the defendant to expend considerable time and expense in defending the appeal. This is especially true for a self-insured party, as my client is. Furthermore, after the case was dismissed against the defendant-respondent County, they have now had to pay for and defend against: 1) the plaintiff-appellant’s appeal before the Appellate Division, Third Department; 2) the plaintiff-appellant’s motion to reargue to the Appellate Division, Third Department; 3) the plaintiff- appellant’s motion for Leave to Appeal to the Court of Appeals; and 4) the within Court of Appeals brief. To state that the County has not been prejudiced by the plaintiff-appellant’s failure to serve a Notice of Appeal is untrue and ignores the considerable expense and time associated with defending against an appeal where the County has no nexus to the loss location in the first place. It is for this reason that at each of the aforementioned four stages after the Lower Court’s dismissal of this action that the defendant-respondent has asked for costs. It is for that reason why the defendant- 11 respondent herein should be given costs should the Court of Appeals adhere to the two lower Courts’ decisions. CPLR Rule 2103 deals with the service of papers in an action in which an attorney has already appeared. Rule 2103(b) states in relevant part that: “Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney.” The Rule then goes on to state many different methods, including but not limited to mailing, personal service on an attorney, overnight service, etc., as to how an attorney can be served with papers. This argument is not just an argument claiming that papers were not received, as the Court of Appeals has held repeatedly that claims of non-receipt of papers can easily be rebutted by the presumption of service created by an Affidavit of Service. Kihl v. Pfeffer, 94 N.Y.2d 118, 722 N.E.2d 55 (1999). Kihl v. Pfeffer, supra, held that a properly executed affidavit of service raises a presumption that a proper mailing occurred, and such presumption can not be rebutted by a simple denial of receipt by a party’s counsel. Here, in contrast to Kihl v. Pfeffer, supra, there is no Affidavit of Service of the plaintiff-appellant’s Notice of Appeal (R-9). As such, this is a case where the plaintiff cannot raise a presumption of service through an Affidavit of Service. Kihl v. Pfeffer, 12 supra. Furthermore, the plaintiff-appellant’s filing of the Notice of Appeal with the Sullivan County, County Clerk’s Office is not the same as service of the Notice of Appeal on the undersigned, who has been counsel of record for the County since this case’s inception. As such, because plaintiff-appellant’s Notice of Appeal was never served on counsel for the County, this Appeal should be dismissed before the merits are even considered by the Court. II. THE DEFENDANT-RESPONDENT COUNTY OF SULLIVAN HAD NO NEXUS TO THE LOSS LOCATION AND THEREFORE DID NOT OWE THE PLAINTIFF-APPELLANT A DUTY OF CARE. AS SUCH, THE DEFENDANT-RESPONDENT CAN NOT BE HELD LIABLE FOR THE PLAINTIFF-APPELLANT'S UNTIMELY DEATH Despite the plaintiff-appellant claiming that the defendant-respondent County and the Sullivan County Community College are one and the same entity for legal purposes, something the County denies, the fact remains that the incident occurred not on the general campus or in a building used by SCCC for educational or athletic purposes, but in a dormitory (R-18, 22, 62). Those dormitories are owned by a non- sued entity, which is a not-for profit corporation, the Sullivan County Community College Dormitory Corp. (R-175,176). The plaintiff-appellant for unknown reasons never sued that entity, and now, perhaps because of that failure, claim that the County was responsible for those 13 dormitories. It was for this very reason that in its Answer, served on or about February 3, 2009, the County alleged that it was not the proper defendant for this action (R-51). Despite not even addressing the issue of ownership of the loss location in their Memorandum of Law in Opposition to the underlying motion (R-287-303) or in the Affirmation of Michael J. Sussman, Esq., in Opposition to the County’s underlying motion (R-304-307), it is now claimed that this issue was “preserved” for review by the Court of Appeals (see, Appellant’s Brief, at page 3). While it has been held that an Appellate Division may search the record and rule on issues not raised in the lower Court proceeding, the Court of Appeals lacks that power. See, Feinberg v. Saks & Co., 56 N.Y.2d 206, 436 N.E.2d 1279 (1982) and Brown v. City of New York 60 N.Y.2d 893, 458 N.E.2d 1248 (1983); see also, CPLR §5501. As such, the issue of whether the County illegally transferred the location of the accident is not subject to this Court’s review, as it was never raised in opposition to the underlying motion. Rather, it was raised for the first time by the plaintiff- appellant in their Brief for Plaintiff-Appellant submitted to the Appellate Division, Third Department (see, Brief for Plaintiff-Appellant at Pages 22-23). Based upon the foregoing, the issue of whether the County’s transfer of the property where the accident occurred was not properly preserved for the Court of Appeals. Assuming the Court of Appeals gives any credence to or decides to review that 14 issue, the fact remains that there is no merit to it. The plaintiff-appellant points to New York State Education Law §6306(4) in support of their position that the transfer of property to the Sullivan County Dormitory Corp., was improper. That section of the Education Law reads as follows (and completely): “The board of trustees of each community college may acquire by deed, gift, devise, bequest or lease, real or personal property suitable for carrying out the program and purposes of the college, and pursuant to regulations prescribed by the state university trustees may apply any income that may be derived therefrom to the maintenance thereof; but no lands, grounds, buildings, facilities or equipment shall be purchased or leased unless an appropriation has been made, therefor, or unless otherwise authorized by law. Title to personal property so acquired shall vest in such board of trustees in its own name and such property shall be held and used by such board for college purposes. Title to real property so acquired shall vest in and be held by the local sponsor in trust for the uses and purposes of the community college. Where a community college region is the local sponsor of a community college, title to real and personal property shall vest in the community college regional board of trustees. The use of real or personal property given to the board of trustees of any community college, or of the income therefrom, to provide any part of the local sponsor's share of capital or operating costs shall be subject to the consent of the state university trustees and such regulations as they may prescribe.” As can be seen from the foregoing, the aforementioned section deals with how a community college can acquire land, not whether a local sponsor can deed land to other sources, such as a not for profit housing corporation. As such, despite the claims of the plaintiff-appellant, the claims that New York Education Law §6306(4) makes 15 the transfer of land ultra vires, putative or done to escape liability as a landowner, are completely false and incorrect. Education Law §6306(4) offers no support for that argument set forth by the plaintiff-appellant. This is also true of Part 603.5 of the Rules of the State University of New York, also raised by the plaintiff-appellant in support of its position. In fact, the plaintiff- appellant relies on that section to try and establish that the County still owns the loss location. That section deals with how a local sponsor “may” dispose of property and gives a list of approved methods. The plaintiff-appellant has not proven that one of those methods was not utilized by the County. Since that issue was first raised on Appeal, nothing in the Record on Appeal for this Court of Appeals review shows that the County did not follow the approved methods or was in violation of that statute. It must be noted that despite the plaintiff-appellant’s claims, they have provided no proof that the land that was transferred to the Sullivan County Community College Dormitory Corp., was ever used for Community College purposes. In fact, by simply looking at pictures of where the dormitories are located, it is clear that the dormitories are on land that house no other college buildings, classrooms, gyms, etc. See, http://www.sunysullivan.edu/campuslife/housing/levine.php The aforementioned website, on a different page, also states that the dormitories are “owned and operated by the Sullivan County Community College Dormitory 16 Corporation.” Nowhere does that website state that the dorms are owned or operated by Sullivan County Community College. Certainly there is no mention of them being owned, operated or maintained by the defendant-respondent County. See, http://www.sunysullivan.edu/campuslife/housing/ Furthermore, in an unrelated action, one of the parties was advised by a governmental agency during a dispute as to whether prevailing wages must be paid to workers at a construction project, that the Sullivan County Community College Dormitory Corporation was specifically created to construct and maintain the dormitory facility. See, Brief for Petitioner Respondent in Christa Const., LLC v. Smith, 880 N.Y.S.2d 786, 2009 N.Y. Slip Op. 04786 (3rd Dept., 2009). Again, there has been no evidence presented to the contrary that the defendant-respondent herein, County of Sullivan has anything to do with the ownership, operation, maintenance or supervision of the Sullivan County Community College Dormitory Corporation’s dorms. The Courts of this State have consistently held that a party can not be liable for an accident on land that it does not own, maintain, inspect, supervise or where a party has no nexus to that land. See, Bailey v. New York City Transit Authority, 270 A.D.2d 156, 704 N.Y.S.2d 582 (1st Dept., 2000); Palmer v. Prescott, 208 A.D.2d 1065, 617 N.Y.S.2d 411 (3rd Dept., 1994); and Turrisi v. Ponderosa Inc., 179 A.D.2d 956, 578 17 N.Y.S.2d 724 (3rd Dept., 1992). Furthermore, where a party transfers title to the land where an accident occurred prior to the date of the accident, the prior owner of the property is not a proper party and is entitled to summary judgment dismissal of the claims against it. Adamkiewicz v. Lansing, 288 A.D.2d 531, 732 N.Y.S.2d 135 (3rd Dept., 2001). See also, Garrasi v. Dean, 75 A.D.3d 1138, 905 N.Y.S.2d 816 (4th Dept., 2010). Significantly, in Adamkiewicz v. Lansing, supra, the plaintiff sought to challenge the transfer of the property completed prior to the accident as being below market value, just as the plaintiff-appellant now challenges the long ago transfer of the property in question here. The Court in Adamkiewicz v. Lansing, supra, specifically stated that “regarding the challenge to the acknowledgment, we note that plaintiff, who has no property interest herein, is clearly not “a party affected thereby” (RPAPL 301[1]) and, therefore, he does not have standing to contest the acknowledgment.” Adamkiewicz v. Lansing, supra, at 288 A.D.2d 532, citing Matter of Estate of Barrie, 134 Misc.2d 440, 511 N.Y.S.2d 524 (Sur.Ct, Nassau County,1987). Therefore, according to Adamkiewicz v. Lansing, supra, the plaintiff-appellant has no legal standing to challenge the County’s transfer of land to the Sullivan County Dormitory Corporation, the very thing they attempt to do herein. Also, Adamkiewicz v. Lansing, supra, reveals that the County can not be liable to the plaintiff-appellant 18 herein as they did not own the loss location at the time of the incident. As such, this Court should affirm the two lower Courts’ opinions. Not only did the plaintiff-appellant fail to preserve this issue for this Court of Appeal proceeding, they can not challenge the transfer anyway, as they have no property interest in the property where the accident occurred. The plaintiff-appellant also argues that the County, as the owner of the loss location and/or SCCC, owed a non-delegable duty to the plaintiff-appellant. However, as the cases noted in the preceding paragraph show, a party that does not own, maintain, inspect or supervise property, owes no duty of care to a party injured on that land. To that end, the Court of Appeals has recently crystalized this issue, especially with regard to municipal defendants who have alleged governmental immunity as a defense. See, Valdez v City of New York, 18 N.Y.3d 69, 936 N.Y.S.2d 587 (2011). Valdez v City of New York, supra, set forth a test to determine if there was a specific duty owed to the plaintiff, not just some general duty that a municipal defendant owes to its residents. Taken in conjunction with the claim of governmental immunity, which was claimed by the County in its underlying motion for summary judgment (R- 39-40), the Court in Valdez v City of New York, supra, reiterated the test set forth in a Court of Appeals case necessary to determine if there was a specific duty owed to 19 the plaintiff. In order to establish a special duty the following elements must all be present: “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.” Valdez v City of New York, supra, quoting Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372 (1987) Here, there is no objective proof that any of the elements are present, let alone all of them. As to the first element there is absolutely no proof in this action that the County was requested to provide or promised to provide AEDs at SCCC or in the dormitories owned and operated by the Sullivan County Community College Dormitory Corp.. As to the second prong of the test, likewise, it would be impossible for the plaintiff-appellant to show that some County agent or employee had knowledge that inaction by Sullivan County Community College or by Sullivan County Community College Dormitory Corp., in not providing AEDs at the loss location (or on campus for that matter) could lead to this specific incident. Element number “3" in the above test has also not been met, as there was never any direct contact between the County and the plaintiff-appellant prior to the incident occurring. 20 Even if somehow all of the three aforementioned elements of the test were present, something the County denies, the Valdez v City of New York, supra, Court stated hat the fourth part of the test was key. In fact, this Court has held that the fourth prong of the test was for the Courts to determine as a matter of law because it “provides the essential causative link between the ‘special duty’ assumed by the municipality and the alleged injury” Cuffy v. City of New York, supra. Even if there was some affirmative undertaking by the County, something completely lacking from the record, it is clear that there was no “justifiable reliance” on same by the plaintiff- appellant herein. The failure of the plaintiff-appellant to meet that part of the test alone should lead the Court to affirm the two lower Court’s decisions, as the record is completely devoid of any proof that there was detrimental reliance by the plaintiff- appellant herein. Based upon the foregoing, it would be impossible for the plaintiff-appellant to establish that the defendant-respondent County owed them a duty. This would also be true even assuming arguendo that the Court finds that there is some nexus between the County and the loss location by virtue of being the sponsor of Sullivan County Community College. As noted above, not one of the prongs of the tests enumerated in Cuffy v. City of New York, supra, and relied upon by the Court in Valdez v City of New York, supra, have been met, let alone all of them. Therefore, the County’s 21 governmental immunity would be in place and the plaintiff-appellant have not established that the County owed them any duty whatsoever. III. THE DEFENDANT-RESPONDENT COUNTY OF SULLIVAN IS A SEPARATE LEGAL ENTITY AND IS NOT ONE AND THE SAME AS SULLIVAN COUNTY COMMUNITY COLLEGE While ignoring the fact that this accident occurred at a property owned by a not for profit corporation, not on the grounds of SCCC, the crux of the plaintiff- appellant’s within appeal is that the defendant-respondent County is the alter-ego or one and the same as SCCC. However, other than the arguments of counsel for the plaintiff-appellant to this effect, there is not any objective evidence herein that supports that interpretation by counsel. In fact, the Appellate Division, Third Department agreed that other than conclusory allegations made by counsel for the plaintiff-appellant there is no factual or legal support for this contention (R-4). The plaintiff-appellant’s Court of Appeals Appellant’s Brief does not contain any testimony from any party showing that the County has any input into the day to day operations of SCCC. Nor has there been any evidence or testimony from some member of SCCC that they requested the County to provide AEDs or that the Board of Trustees of SCCC requested more budgetary resources to pay for AEDs at the school. Instead, the Appellant’s Brief herein is riddled with statements like “thus, the County the real party in interest” (see, Appellant’s Brief at Page 10); “When a county 22 acts as local sponsor under Article 126 of the State Education and establishes and operates a community college” (See, Appellant’s Brief at Page 11-italics not in original); and, “Parsing the definition further, a local sponsor operates a community college” (see, Appellant’s Brief at Page 15). Again, without any case law or evidence to support these contentions, they are simply allegations made by counsel for the plaintiff-appellant. It has been held that an attorney's affirmation without personal knowledge of the accident has no probative value and is not sufficient to defeat a summary judgment motion. Firth v. State of New York, 306 A.D.2d 666, 761 N.Y.S.2d 361, (3rd Dept., 2003). Yet that is all the Appellant’s Brief has offered herein. All of the cases listed, statutes cited to and arguments made by the plaintiff- appellant in the within Court of Appeals action argue this “alter-ego” theory, but the cases and statutes shown show something entirely different. Other that showing that the County has considerable input into the budget and fiscal operations of SCCC, not one case cited or statute noted supports the position that the defendant-respondent had any input into the day to day operations of SCCC. Unlike the conclusory allegations made by plaintiff-appellant’s counsel, here there is no objective proof that the County has any input into the day to day operations of SCCC. For one, the statutory language itself, supports the County’s position. 23 Education Law §6306(5), which deals with the establishment and administrative duties of community colleges and their Boards of Trustees reads in relevant part: "The board of trustees shall have the care, custody, control and management of the lands, grounds, buildings, facilities and equipment used for the purposes of such college and of all other property belonging to such college and used for carrying out its purposes, and it shall have power to protect, preserve and improve the same." As can be seen above, Education Law §6306(5) would require the Board of Trustees of SCCC, a completely independent body from the County, to manage its property, and specifically, its equipment. Nowhere does that statute place any affirmative duty on the local sponsor like the County herein. Nor does the aforementioned statutory language place the same burdens and legal responsibilities on the local sponsor, as it does with the board of trustees. Furthermore, the statutory language is in line with both the testimony of Ira Cohen on behalf of the respondent-defendant, as well as, Mr. Cohen’s Affidavit in Support of the County’s underlying motion for summary judgment (R-284). Unlike the conclusory allegations made by the attorney for the plaintiff-appellant herein, Mr. Cohen’s Affidavit constitutes evidence that the County has no role in the day to day operations of SCCC or Sullivan County Community College Dormitory Corp. It must be pointed out again that such evidence has never been refuted by another party to this lawsuit, another witness to this lawsuit or even by a non-party to 24 this lawsuit. Ira Cohen’s EBT testimony constitutes evidence and he testified that SCCC is an independent entity from the County, that SCCC has its own insurance and that the County has no say in how SCCC spends its budgetary resources provided by the County (R-113,120-121, 122-123, 127-128). In response to the aforementioned evidence, there has been nothing submitted to counter or refute same, again, other than counsel’s own allegations and claims. As part of this appeal, the Appellant’s Brief states that the juridical existence of a community college has yet to be defined by the Courts. This claim clearly ignores the numerous cases where a community college has been sued, independent of its local sponsor. See generally, Chatelle v. North Country Community College, 100 A.D.3d 1332, 955 N.Y.S.2d 266 (3rd Dept., 2012); Santandrea v. Board of Trustees of Hudson Valley Community College, 70 A.D.3d 1238, 894 N.Y.S.2d 585 (3rd Dept., 2010); and, Harmon v. Adirondack Community College, 12 A.D.3d 746, 784 N.Y.S.2d 663 (3rd Dept., 2004). Perhaps the more important question than what the juridical existence of a community college is, is why the plaintiff-appellant did not sue the entity that it now wants this Court to define the “juridical existence” of. SCCC is not a party to this lawsuit, so why would their juridical existence matter to the facts of this litigation? If the plaintiff-appellant sued SCCC and tried to prove vicarious liability against the 25 County or that SCCC was an agent of the defendant-respondent, then perhaps the juridical existence of SCCC would be relevant here. Conversely, the party that owns the loss location, the Sullivan County Community College Dormitory Corp., is a not-for profit corporation (R-176). As such, its juridical existence has been judicially defined and the “juridical” existence of SCCC is a classic red herring meant to divert the Court from the true issue herein; that the County did not own, maintain, inspect or supervise the property where the accident occurred. The statutory language of Education Law §6306(5) creates affirmative duties on a community college’s board of trustees. That section reads in relevant part: "The board of trustees shall have the care, custody, control and management of the lands, grounds, buildings, facilities and equipment used for the purposes of such college and of all other property belonging to such college and used for carrying out its purposes, and it shall have power to protect, preserve and improve the same." As can be seen above, Education Law §6306(5) places affirmative duties on the board of trustees only, without any mention of the local sponsor. By providing the Board of Trustees of the SCCC with the “power to protect, preserve and improve” the buildings, facilities and equipment of the community college, this section alone should serve to defeat the arguments in the Appellant’s Brief at Page 43, that even though the 26 accident occurred at the Sullivan County Community College Dormitory Corp.’s property, there should have been an AED on the SCCC campus itself. The aforementioned statutory language of Education Law §6306(5) shows that even if there should have been AEDs on the general campus, that too would be the responsibility of SCCC, not of the defendant-respondent County. The Appellant’s Brief points to several cases which show the close relationship between the County and SCCC. However, universally, those cases simply show how much control the local sponsor has over fiscal issues of a community college. See, Horacek-Hayden, Inc. v. Monroe County, 65 Misc.2d 196, 317 N.Y.S.2d 575 (Sup. Ct., Monroe County, 1970) and Meyer v. Wiess, 25 A.D.2d 174, 268 N.Y.S.2d 226 (3rd Dept., 1966). The defendant-respondent County has never claimed that there is not a close relationship from a fiscal standpoint between it and SCCC. That said, this case does not involve a fiscal issues such as compensation for a professor (Chatelle v. North Country Community College, 100 A.D.3d 1332, 955 N.Y.S.2d 266 (3rd Dept., 2012) or the firing of the President of a community college’s Board of Trustees (Harmon v. Adirondack Community College, 12 A.D.3d 746, 784 N.Y.S.2d 663 (3rd Dept., 2004). Significantly, in both of those cases and several others cited by the plaintiff-appellant, the community college involved was a named defendant. Likewise, the cases that deal with service of Notices of Claim and state that 27 service of same does not have to be made on a community college, but can be made on a County that is the local sponsor, are not controlling herein. See, Santandrea v. Bd. of Trustees of Hudson Valley Community College, 25 Misc.3d 429, 881 N.Y.S.2d 889 (Sup. Ct., Rensselaer County 2009) and the other cases cited in the Appellant’s Brief on Page 24. Again, in each of those cases, the community college was a named party, something that is very different from the within case where the community college was never sued. Here, the plaintiff-appellant argues that because SCCC or its Board of Trustees may have been negligent, that negligence can be imputed to the defendant-respondent County because of its close fiscal relationship with SCCC and as SCCC’s sponsor. However, in the within action, how can the plaintiff-appellant prove liability against SCCC when SCCC is not even a party to this action? The Appellant’s Brief uses this backwards logic to try and show how the County should be responsible and would have to indemnify SCCC’s employees as another reason to reverse the Appellate Division’s ruling. The Appellant’s Brief points to Education Law §6308, which can result in a local sponsor indemnifying, defending and holding harmless a community college employee. However, again, here the plaintiff-appellant never sued SCCC or any of its members or employees. That alone would make it impossible for the County to indemnify someone from 28 SCCC. How can the defendant-respondent be required to indemnify a party that was never sued in this litigation? Furthermore, §6308 crystalizes this issue. Education Law §6308(2)(a) reads in relevant part: “Upon compliance by the employee with the provisions of subdivision four of this section, the local sponsor of a community college shall provide for the defense of the employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties, or which is brought to enforce a provision of section nineteen hundred eighty-one or nineteen hundred eighty-three of title forty-two of the United States code and the act or omission underlying the action occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties. This duty to provide for a defense shall not arise where such civil action or proceeding is brought by or on behalf of the local sponsor.” (Italics added, not in original statute) However, upon examination of “subdivision four” of the statute it is clear that this section is not applicable, as that subdivision reads as follows: “4. The duty to defend or indemnify and save harmless prescribed by this section shall be conditioned upon (I) delivery to the local sponsor at its main business office by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with such document, and (ii) the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the community college or local sponsor based upon the same act or omission, and in the prosecution of any appeal. Such delivery shall be deemed a request by the employee that the local sponsor provide for his defense pursuant to 29 this section.” Here, SCCC was never served with a complaint, and therefore subdivision four of Education Law §6308 was never triggered, let alone met. Despite, the foregoing and because no other entity was sued herein, the plaintiff-appellants now ask this Court to find that the County was the real party in interest and for them to have to indemnify a party that was never sued. Likewise, the plaintiff-appellant’s attempt to use New York County Law §53 to show the County is the real party in interest herein is also misplaced. Here, the plaintiff-appellant’s attempt to bind the principle (the County) by alleging, but not proving, negligent acts against an alleged agent (SCCC) who has never sued. Again, where SCCC was never sued, a non-party witness was never produced by SCCC and there has been no evidence submitted that the County was actively negligent, how could the Court ever hold that a party could be responsible for the alleged active negligence of a party not sued herein? CONCLUSION The Supreme Court, Sullivan County and the Appellate Division, Third Department were both correct for dismissing the plaintiff-appellant’s Complaint and affirming that dismissal, respectively, by finding that there was no nexus between the 30 loss location and the defendant-respondent County of Sullivan. Therefore, it can not be stated that the defendant-respondent County of Sullivan owed a duty to the plaintiff-appellant. Furthermore, both of the lower Courts were correct in noting that the defendant-respondent County of Sullivan did not own, maintain, manage, inspect or supervise the loss location and that County of Sullivan is not the “alter ego” of the Sullivan County Community College. Also, the County of Sullivan is entitled to governmental immunity and there was no duty or special duty owed to the plaintiff- appellant herein. Based upon the foregoing, it is requested that the Court of Appeals deny the plaintiff-appellant’s within Appeal, uphold and affirm both of the lower Court’s rulings, together with the costs of opposing this Appeal being awarded to the defendant-respondent County of Sullivan. Dated: Monticello, New York September 24, 2014 Respectfully submitted, By:________________________ Bryan Kaplan The Law Offices of Bryan R. Kaplan Attorneys for Defendant-Respondent COUNTY OF SULLIVAN P.O. Box 1148 Monticello, New York 12701 (845) 701-1312
