Opinion
No. 120258.
07-11-2014
George ROCKENSTIRE and Linda Rockenstire, Claimant(s), v. The STATE of New York, Defendant.
LaFAVE, WEIN & FRAMENT, PLLC by Paul H. Wein, Esq., Claimant's attorney. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Defendant's attorney by Glenn C. King, Esq., AAG
LaFAVE, WEIN & FRAMENT, PLLC by Paul H. Wein, Esq., Claimant's attorney.
ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, Defendant's attorney by Glenn C. King, Esq., AAG
CHRISTOPHER J. McCARTHY, J.
The Claim was filed with the Clerk of the Court on August 22, 2011. The underlying facts of the case are not in dispute. Claimant, George Rockenstire , was operating his motorcycle on State Route 143 eastbound at its intersection with Tompkins Road in the Town of Coeymans, New York, on July 3, 2010 at approximately 1:50 PM. At that time, there was loose gravel/stone on the roadway, which Claimant's motorcycle rode over, causing Claimant to lose control of the vehicle and sustain injuries.
As the Claim does not appear to assert a cause of action relating to Linda Rockenstire, all references to Claimant shall be to George Rockenstire.
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The Claim alleges that the State was negligent in improperly engineering, constructing, designing, maintaining and inspecting the roadway, and by creating a hazardous and dangerous condition in allowing the stone/gravel to accumulate on the roadway.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v. Klein, 24 A.D.2d 920, 264 N.Y.S.2d 680 [3d Dept 1965] ; Wanger v. Zeh, 45 Misc.2d 93, 94, 256 N.Y.S.2d 227 [Sup Ct, Albany County 1965] ), affd 26 A.D.2d 729 [3d Dept 1966] ). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985] ; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986] ; Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404 [1957] ). “Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (Alvarez v. Prospect Hosp., supra at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; see Winegrad v. New York Univ. Med. Center, supra at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
In support of his motion, Claimant submitted the deposition transcripts of Claimant (Ex. F) and three New York State Department of Transportation (hereinafter “DOT”) employees, Highway Maintenance Supervisor II Timothy Florick (Ex. G), Supervisor Daniel L. Putnam (Ex. H) and Assistant Resident Engineer for Albany County David R. Vartigian (Ex. I), as well as the affidavit of Jonathan E. Myers, the police officer who responded to the scene of the accident.
The portion of State Route 143 where the accident occurred was repaved and crusher run was applied as backup to the shoulder on June 16, 2010 (Claimant's Motion, Ex. G, p. 39, lines 9–14 & 19–21). Two days later, on June 18, 2010, some of that crusher run was reported to be in the roadway (id., p. 39, 487 N.Y.S.2d 316, 476 N.E.2d 642, line 22 through p. 40, line 2) and, on that same day, DOT sent a crew out and removed the debris from the roadway (id., p. 22, 487 N.Y.S.2d 316, 476 N.E.2d 642, lines 20 through p. 23, line 2 and Defendant's Affirmation in Opposition, Ex. A). Claimant's accident occurred 15 days later.
When the State engages in a proprietary function, such as highway and road maintenance, it is held to the same duty of care as private actors engaging in similar functions (Lynch v. State of New York, 21 Misc.3d 1127[A], *3 [Ct Cl 2005], affd on other grounds, 37 A.D.3d 772, 831 N.Y.S.2d 228 [2d Dept 2007] ; Coco v. State of New York, 123 Misc.2d 653, 655–656, 474 N.Y.S.2d 397 [Ct Cl 1984] ; see Sebastian v. State of New York, 93 N.Y.2d 790, 793 [1999] ; Oeters v. City of New York, 270 N.Y. 364, 368 [1936] ; Kamnitzer v. City of New York, 265 A.D. 636, 638–639, 40 N.Y.S.2d 139 [1st Dept 1943] ; Murphy v. Incorporated Vil. of Farmingdale, 252 A.D. 327, 329, 299 N.Y.S. 586 [2d Dept 1937], appeal denied 13 N.E.2d 480 [1938] ). Thus, Defendant has an absolute, “nondelegable duty to maintain its roads and highways in a reasonably safe condition, and liability will flow for injuries resulting from a breach of that duty” (Levine v. New York State Thruway Auth., 52 A.D.3d 975, 976, 859 N.Y.S.2d 778 [3d Dept 2008], quoting Nurek v. Town of Vestal, 115 A.D.2d 116, 116–117, 494 N.Y.S.2d 920 [3d Dept 1985] ; see Friedman v. State of New York, 67 N.Y.2d 271, 286 [1986] ; Maldonado v. New York State Thruway Auth., 86 A.D.3d 785, 786, 926 N.Y.S.2d 756 [3d Dept 2011] ). The duty “is intended to protect the traveling public” (Lopes v. Rostad, 45 N.Y.2d 617, 624 [1978] ) and Defendant may be held liable for any such breach of duty in accordance with “general principles of negligence and comparative negligence” (Bottalico v. State of New York, 59 N.Y.2d 302, 305 [1983] ; see Weiss v. Fote, 7 N.Y.2d 579, 585 [1960] ).
Defendant is not an insurer of public safety, however, and negligence cannot be inferred solely from the occurrence of an accident on its roadway (see Tomassi v. Town of Union, 46 N.Y.2d 91, 97 [1978] ; Brooks v. New York State Thruway Auth., 73 A.D.2d 767, 768, 423 N.Y.S.2d 543 [3d Dept 1979], affd 51 N.Y.2d 892 [1980] ).
In order to establish Defendant's liability, therefore, it is Claimant's burden to establish that: (1) a dangerous condition existed that constituted a breach of Defendant's duty to maintain its roadway in a reasonably safe condition; (2) Defendant either created the dangerous condition, or had actual or constructive notice thereof, and failed to take reasonable steps either to alleviate it or to warn approaching motorists; and (3) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Redcross v. State of New York, 241 A.D.2d 787, 789, 660 N.Y.S.2d 211 [3d Dept 1997], lv denied 91 N.Y.2d 801 [1997] ; Merrill Transp. Co. v. State of New York, 97 A.D.2d 921, 922, 470 N.Y.S.2d 764 [3d Dept 1983] ; Brooks v. New York State Thruway Auth., supra at 768, 423 N.Y.S.2d 543 ; Rinaldi v. State of New York, 49 A.D.2d 361, 363, 374 N.Y.S.2d 788 [3d Dept 1975] ; Lomax v. State of New York, 15 Misc.3d 1105[A] [Ct Cl 2007] ; Witko v. State of New York, UID No.2009–039–154 [Ct Cl, Ferreira, J., Nov. 25, 2009). “The highway may be said to be reasonably safe when people who exercise ordinary care travel over it in safety” (Boulos v. State of New York, 82 A.D.2d 930, 931, 440 N.Y.S.2d 731 [3d Dept 1981], affd 56 N.Y.2d 714 [1982] ).
Here, Claimant established that DOT Highway Supervisor II Florick was aware on June 18, 2010 that stone and gravel were on the roadway at Route 143 and Tompkins Road and that the source of the stone was from the shoulder area (Claimant's Motion, Ex. G, pp. 14–17). It was determined that the stone and gravel were on the roadway because “vehicles were cutting the corner too short and running off the road onto the shoulder and then dragging stone back onto the road” (id., p. 18, 451 N.Y.S.2d 725, 436 N.E.2d 1327 ). According to Mr. Florick, DOT's records reflect that, on June 18, 2010, DOT personnel swept stone from the roadway back onto the shoulder in the area of the intersection at issue (id., pp. 22–23, 451 N.Y.S.2d 725, 436 N.E.2d 1327 ). At his deposition, Assistant Resident Engineer Vartigian testified that the stone and gravel were swept back onto the shoulder, but that it also was foreseeable that cars cutting that curve could drive onto the gravel and, in doing so, bring that gravel onto the highway (Claimant's Motion, Ex. I, pp. 24–25).
Based upon this record, the Court finds that Claimant's submissions in support of his motion for summary judgment establish that: the gravel and stone on the roadway constituted a dangerous condition; that Defendant had notice of the dangerous condition and failed to take steps to alleviate the condition or to warn motorists of the condition; and the condition was a substantial factor in causing Claimant's injuries. Thus, the Court further determines that Claimant has made the prima facie showing required to warrant judgment as a matter of law, if not refuted by Defendant.
Defendant has submitted the affirmation of Defense counsel and the affidavit of Douglas F. Rose, DOT's Resident Engineer for Region I (Albany County). Mr. Rose's affidavit addresses the issue of the State's alleged improper reconstruction of the shoulder or, as Mr. Rose states, “shoulder back up” (Rose Affidavit, ¶ 5). Mr. Rose does not address, however, the maintenance issue as to whether or not the gravel/stone constituted a dangerous condition, or whether the State had notice of the condition. Regarding the issue of maintenance, Defense counsel asserts that Claimant “can show no actual or constructive notice of a hazardous condition prior to [C]laimant's accident” (Affirmation of AAG Glenn C. King, ¶ 5). However, Defendant has not submitted an affidavit from any DOT employee, nor has Defendant referred the Court to any deposition testimony of any DOT employee, stating that the State did not have notice of the hazardous condition.
The Court finds and concludes that Defendant has not refuted Claimant's proof and has not raised a triable issue of fact with regard to the existence of a dangerous condition on the roadway and that the State had notice of the condition.
Therefore, based upon the foregoing, Claimant's motion for summary judgment as to liability is granted. The Court will contact the parties in due course to establish a conference date.
Appendices:
The following papers were read and considered by the Court on Claimant's motion for partial summary judgment:
| Paper | Numbered |
|---|---|
| Notice of Motion, Affirmation, Exhibits attached, Affidavit of Michael D. Reilly, Affidavit of Jonathan E. Myers and Exhibits attached and Memorandum of Law | 1 |
| Affirmation in Opposition and Exhibits attached including Affidavit of Douglas F. Rose and Exhibits attached thereto | 2 |
| Reply Affirmation and Affidavit of Michael D. Reilly | 3 |
Filed Papers: Claim, Answer