Opinion
# 2013-049-026 Claim No. 122215 Motion No. M-83072
05-29-2013
VINCENT DEWINDT v. NEW YORK STATE DEPARTMENT OF TRANSPORTATION
Synopsis
The Court granted defendant's unopposed motion to dismiss the claim as the State was not responsible for roadway where claimant was struck by a motor vehicle.
Case information
UID: 2013-049-026 Claimant(s): VINCENT DEWINDT Claimant short name: DEWINDT Footnote (claimant name) : Defendant(s): NEW YORK STATE DEPARTMENT OF TRANSPORTATION Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 122215 Motion number(s): M-83072 Cross-motion number(s): Judge: DAVID A. WEINSTEIN Novo Law Firm, P.C. Claimant's attorney: By: No Appearance Eric T. Schneiderman, New York State Attorney General Defendant's attorney: By: Joseph L. Paterno, Assistant Attorney General Third-party defendant's attorney: Signature date: May 29, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In a claim filed January 8, 2013, claimant Vincent Dewindt alleges that he was injured when, as a pedestrian, he was struck by a motor vehicle at the crosswalk of Linden Boulevard and Hendrix Street in Brooklyn, on November 6, 2012. The claim states that the accident was the result of various negligent acts and omissions by defendant State of New York relating to the design and maintenance of the roadway where it took place, including "negligent, careless and reckless pedestrian crossway design," "fail[ure] to have pedestrian crosswalk stencils in the pavement," and "fail[ure] to provide adequate lighting" (Claim ¶ 3).
The State now moves to dismiss the claim. Defendant's application is supported by the affirmation of Assistant Attorney General Joseph L. Paterno, and the affidavit of Osama Khalil, Civil Engineer and Claims Engineer for the New York State Department of Transportation ("NYSDOT"), New York City Regional Office. The former avers that the claim should be dismissed because the State did not own or maintain the situs of the accident location, nor was it responsible for any construction in the area. The latter states that based on the affiant's search of records maintained by NYSDOT, he determined that the State is not responsible for this intersection as an owner or otherwise, and that no construction contracts were in effect at the time of the accident (Aff. in Supp., Ex. C). Appended to Khalil's affidavit is a document entitled "Unsatisfactory Inspection Report" that appears to indicate that pavement markings at the accident location were made in June 2012 under a New York City contract.
Pursuant to article XII-B of the Highway Law (§§ 349-b through 349-f), when certain criteria are met the State has ownership and maintenance responsibility for the various arterial highways running through New York City (see Nowlin v City of New York, 81 NY2d 81, 86-87 [1993]; Amerino v State of New York, 35 Misc 3d 1239[A], *7 [Ct Cl 2012]). In particular, the State may attain ownership of arterial routes when it "expend[s] State or Federal funds for [their] purchase, design, construction or reconstruction" (Nowlin, 81 NY2d at 86; see also Highway Law § 349-d [no roadway "shall be deemed to be a part of the system of highways of the state of New York for purposes of maintenance and repair" unless "(1) such public street, main route or thoroughfare or any portion thereof shall have been constructed, reconstructed or improved as provided in this article, and (2) [the] commissioner [of transportation] shall have issued an official order declaring such public street, main route or thoroughfare or any portion thereof . . . to be a part of such system of highways for such purposes of maintenance and repair"]).
An arterial highway is "a highway running through a locality and connecting it to State highways" (
According to Khalil, the subject intersection was not part of the "built arterial [highway] system," as no jurisdictional order exists that would indicate that the roadway was incorporated into that system (Khalil Aff. ¶¶ 5, 7). Rather, Khalil states that the roadway was part of the "'un built' arterial highway system" over which the City of New York has sole responsibility (Khalil Aff. ¶ 6), i.e., the State has played no role in its design, maintenance, construction or reconstruction (Id. ¶ 8).
Claimant has submitted no opposition to the State's motion, and thus does not dispute defendant's assertions. The State has therefore met its burden to show that it neither owned, nor was responsible for the maintenance of, the subject location. Dismissal of this action is therefore warranted (see Gerber v State of New York, UID No. 2010-029-004 [Ct Cl, Mignano, J., Jan. 6, 2010] [granting State's motion to dismiss "based on the uncontradicted allegations in the defendant's submission" regarding its lack of ownership over the property in question]).
In view of the foregoing, it is ORDERED that defendant's motion no. M-83072 be granted and that claim no. 122215 be dismissed.
May 29, 2013
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered
1. Defendant's Notice of Motion, Affirmation in Support, and annexed exhibits.
Nowlin v City of New York, 81 NY2d 81, 86 [1993]).