Opinion
2016–02734
11-21-2018
Michael RODRIGUEZ, et al., Respondents, v. STATE of New York, Appellant. (Claim No. 120665)
Barbara D. Underwood, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Bethany A. Davis Noll of counsel), for appellant. Goldstein & Handwerker, LLP, New York, N.Y. (Jason Levine of counsel), for respondents.
Barbara D. Underwood, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Bethany A. Davis Noll of counsel), for appellant.
Goldstein & Handwerker, LLP, New York, N.Y. (Jason Levine of counsel), for respondents.
JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
ORDERED the interlocutory judgment is affirmed, with costs.
Michael Rodriguez allegedly was injured when the motorcycle he was riding struck a pothole on the Sprain Brook Parkway, causing him to lose control of and be "catapult[ed ]" off the motorcycle. Michael, and his wife suing derivatively (hereinafter together the claimants), commenced this claim to recover damages for personal injuries, etc. Following a nonjury trial on the issue of liability, the Court of Claims, in a decision dated November 19, 2015, found that the defendant, the State of New York, was 100% at fault in the happening of the accident. An interlocutory judgment in favor of the claimants and against the State on the issue of liability was entered upon the decision. The State appeals from the interlocutory judgment.
"In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds ‘warranted by the facts,’ bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony" ( DePaula v. State of New York, 82 A.D.3d 827, 827, 918 N.Y.S.2d 206, quoting Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809 ). The State, while "not an insurer of the safety of its roads" ( Sinski v. State of New York, 2 A.D.3d 517, 517, 767 N.Y.S.2d 874 ; see Carlo v. State of New York, 51 A.D.3d 618, 855 N.Y.S.2d 919 ), has a "nondelegable duty to maintain its roads in a reasonably safe condition" ( Friedman v. State of New York, 67 N.Y.2d 271, 286, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; see Weiss v. Fote, 7 N.Y.2d 579, 587, 200 N.Y.S.2d 409, 167 N.E.2d 63 ). "To prove that the State was negligent in the maintenance of its roadway, a claimant must demonstrate the existence of a dangerous condition of which the State was actually or constructively aware and which it failed to take reasonable measures to correct" ( Chavez v. State of New York, 139 A.D.3d 994, 995, 30 N.Y.S.3d 846 ; see Hynes v. State of New York, 301 A.D.2d 628, 629, 754 N.Y.S.2d 343 ; Giske v. State of New York, 191 A.D.2d 675, 677, 595 N.Y.S.2d 559 ).
Here, the determination of the Court of Claims, that the claimants demonstrated that the State was negligent in maintaining the subject roadway, and that this negligence proximately caused the accident, is warranted by the facts, and we discern no basis on which to disturb it.
LEVENTHAL, J.P., COHEN, LASALLE and CHRISTOPHER, JJ., concur.