Metz v. State

• Citation: 2011 N.Y. Slip Op. 05916,927 N.Y.S.2d 201,86 A.D.3d 748
• Parties: Richard M. METZ, as Personal Representative of the Estate of Mary Helen Metz, Deceased, et al., Respondents–Appellants,v.STATE of New York, Appellant–Respondent.(And Six Other Related Claims.)
• Decision Date: 14 July 2011
• Court: New York Supreme Court — Appellate Division

86 A.D.3d 748
927 N.Y.S.2d 201
2011 N.Y. Slip Op. 05916

Richard M. METZ, as Personal Representative of the Estate of Mary Helen Metz, Deceased, et al., Respondents–Appellants,
v.
STATE of New York, Appellant–Respondent.(And Six Other Related Claims.)

Supreme Court, Appellate Division, Third Department, New York.

July 14, 2011.

[927 N.Y.S.2d 202]

Eric T. Schneiderman, Attorney General, Albany (Laura Etlinger of counsel), for appellant-respondent.Hacker & Murphy, L.L.P., Latham (James E. Hacker of counsel), for respondents-appellants.Before: ROSE, J.P., MALONE JR., STEIN, McCARTHY and EGAN JR., JJ.STEIN, J.

[86 A.D.3d 748] Cross appeals from an order of the Court of Claims (Ferreira, J.), entered March 25, 2010, which denied claimants' motion to dismiss defendant's affirmative defense of sovereign immunity and denied defendant's cross motion for summary judgment dismissing the claims.

In 2005, the Ethan Allen, a tour boat and public vessel, capsized and sank on Lake George while carrying 47 passengers and one crew member. Tragically, 20 passengers died and numerous others suffered severe personal injuries as a result of the accident. The Ethan Allen had been inspected annually by inspectors appointed by the Commissioner of the New York State Office of Parks, Recreation and Historic Preservation (hereinafter OPRHP). A certificate of inspection was issued after each inspection setting forth, among other things, the maximum number of passengers that could be safely transported on the vessel. Since the Ethan Allen was first inspected when it entered

[927 N.Y.S.2d 203]

New York State in 1979, the maximum number of passengers permitted was fixed at 48. Following an investigation into the 2005 accident, the National Transportation Safety Board (hereinafter NTSB) concluded that the probable cause was insufficient stability of the vessel due to carrying 48 passengers, rather than 14, which the NTSB determined should have been the maximum permitted.

Claimants, individuals who were injured and personal representatives of those who died as a result of the accident, commenced the instant claims asserting, among other things, that defendant was negligent in certifying the Ethan Allen to carry [86 A.D.3d 749] more than 14 passengers. After defendant answered the claims, claimants moved to dismiss defendant's affirmative defense of sovereign immunity pursuant to CPLR 3211(b) and defendant cross-moved for summary judgment dismissing the claims based on its claimed entitlement to such immunity. The Court of Claims denied both motions and these cross appeals ensued.

We now modify and grant claimants' motion. As the movant for summary judgment, defendant bore the initial burden of demonstrating its entitlement to sovereign immunity as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). First, defendant was required to establish that, in inspecting the Ethan Allen, it was acting in a governmental, rather than a purely proprietary, manner; if the latter, defendant would be subject to the same tort liability as any non-governmental entity ( see Lemery v. Village of Cambridge, 290 A.D.2d 765, 766, 736 N.Y.S.2d 503 [2002] ). A government entity acts in a proprietary capacity when the “governmental activities essentially substitute for or supplement ‘traditionally private enterprises' ” ( Sebastian v. State of New York, 93 N.Y.2d 790, 793, 698 N.Y.S.2d 601, 720 N.E.2d 878 [1999], quoting Riss v. City of New York, 22 N.Y.2d 579, 581, 293 N.Y.S.2d 897, 240 N.E.2d 860 [1968] ). “To determine where in the continuum of activity between proprietary and governmental responsibilities the challenged public action falls, we must examine the specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred” ( Balsam v. Delma Eng'g Corp., 90 N.Y.2d 966, 967–968, 665 N.Y.S.2d 613, 688 N.E.2d 487 [1997] [internal quotation marks and citations omitted]; accord St. Andrew v. O'Brien, 45 A.D.3d 1024, 1027, 845 N.Y.S.2d 184 [2007], lv. dismissed and denied 10 N.Y.3d 929, 862 N.Y.S.2d 332, 892 N.E.2d 398 [2008] ).

As relevant here, defendant established that the Commissioner of OPRHP is authorized to appoint one or more inspectors to perform safety inspections of public vessels that operate on navigable waters within the state and issue certificates of inspection to such vessels ( see Navigation Law §§ 12, 13). The duties of such inspectors include an annual inspection to, among other things, fix the number of passengers that may be transported on the vessel ( see Navigation Law § 13). In addition, defendant offered the affidavits and deposition testimony of several of the inspectors responsible for inspecting the Ethan Allen, including the current director of the Marine Services Bureau of OPRHP, which established that defendant does not own, operate or maintain the Ethan Allen. In our view, defendant met its initial burden of demonstrating that the inspection and certification of public vessels in general, and the Ethan Allen in particular, is a classic governmental function inasmuch as it is a regulatory activity undertaken for the protection of the [86 A.D.3d 750] public at large ( see

[927 N.Y.S.2d 204]

Balsam v. Delma Eng'g Corp., 90 N.Y.2d at 968, 665 N.Y.S.2d 613, 688 N.E.2d 487). Thus, the burden shifted to claimants to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

In opposition to defendant's cross motion, claimants offer no evidence to refute the foregoing...