Opinion
# 2013-038-522 Claim No. 116669 Motion No. M-82909 Cross-Motion No. CM-83035
04-17-2013
MATTHEW STILWAGEN v. THE STATE OF NEW YORK
Synopsis
Claim arising from motorcycle accident on Clearview Expressway. On its motion for summary judgment, defendant did not demonstrate that it was not the owner of the roadway, and thus, it had a nondelegable duty to maintain it. Even if City of New York was responsible for maintenance of highway, liability could still attach to State by virtue of nondelegable duty. Claimant's cross motion for summary judgment denied. Claimant failed to demonstrate that the bump that caused his accident was a dangerous condition - expert's affidavit lacking in factual support. Claimant also did not demonstrate that defendant had actual or constructive notice of the defect.
Case information
UID: 2013-038-522 Claimant(s): MATTHEW STILWAGEN Claimant short STILWAGEN name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote The caption has been amended sua sponte to reflect the (defendant name) : State of New York as the only proper defendant in this claim. Third-party claimant(s): Third-party defendant(s): Claim number(s): 116669 Motion number(s): M-82909 Cross-motion CM-83035 number(s): Judge: W. BROOKS DeBOW Claimant's KAHN GORDON TIMKO & RODRIQUES, P.C. attorney: By: Nicholas T. Timko, Esq. ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: Janet Polstein, Assistant Attorney General Third-party defendant's attorney: Signature date: April 17, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant sustained personal injuries when he lost control of his motorcycle when it hit a bump that ran across the width of the left lane of the Clearview Expressway at a location in Queens County in New York City. Defendant moves for summary judgment dismissing this claim against the State of New York. Claimant opposes the motion and cross-moves for partial summary judgment on liability, and defendant opposes the cross motion. For the reasons that follow, both motions will be denied, and the trial of liability on this claim remains on the Court's trial calendar for the week of June 24, 2013.
It is well established that a movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by proof in admissible form, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, where a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied (see Winegrad, 64 NY2d at 853; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]). It has been oft-stated that a court's function in deciding a motion for summary judgment is issue finding, not issue determination (see Matter of Suffolk County Dept. of Social Services v James M., 83 NY2d 178, 182 [1994]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957])
Defendant first asserts that it is entitled to summary judgment because the City of New York, not defendant, was responsible for maintenance of the roadway where claimant's accident occurred (see Polstein Affirmation, ¶¶ 13-14). Claimant argues that defendant has a nondelegable duty to maintain its highways in a reasonably safe condition and that it is jointly responsible with the City of New York for the safety of the Clearview Expressway (see Timko Affirmation, ¶ 3). In reply, defendant reiterates that a Maintenance Agreement between the State and the City of New York assigns the responsibility for maintenance of the Clearview Expressway with the City of New York (see Polstein Affirmation in Opposition, ¶ 2).
The State owes to the public a nondelegable duty to design, construct and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Because the duty is nondelegable, the obligation to maintain a State-owned roadway remains imposed on the State, even if an allegedly hazardous condition results from the activities of another party that is under contract with the State (see Lopes v Rostad, 45 NY2d 617, 623 [1978]). Thus, notwithstanding defendant's intense focus on whether the City was exclusively responsible for maintenance of the Clearview Expressway, a threshold question on defendant's motion is whether the State owned the Clearview Expressway at the site of claimant's accident, and thus, had a nondelegable duty to maintain it.
Article XII-B of the Highway Law is addressed to "State Arterial Highways Passing Through Cities." The Clearview Expressway in Queens County is subject to Article XII-B (see Highway Law § 349-f ["Clearview expressway from Throgs Neck bridge to Nassau expressway"]; see also Marchese v State of New York, 37 Misc 3d 1226[A], *2-*3 [Ct Cl 2012]). Article XII-B establishes a somewhat unique and complex relationship between the State and the City of New York with respect to these State arterial highways:
[u]nder article XII-B [of the Highway Law], the State is empowered to expend State or Federal funds for the purchase, design, construction or reconstruction of arterial routes running through cities . . . and thereby attains ownership of such roads . . . Once State construction or reconstruction of an arterial highway is complete, however, the State must return "jurisdiction" of the roadway to the City . . . Notwithstanding such return of jurisdiction article XII-B contemplates that the State retains continuing maintenance responsibility for State arterial highways it has constructed or reconstructed(Nowlin v City of New York, 81 NY2d 81, 86 [1993] [internal citations omitted, emphasis added]). According to Nowlin, then, the State is the owner of the Clearview Expressway and it retains continuing maintenance obligations for the Clearview Expressway.
Although defendant denied in its verified answer the claim's allegation that the State is the owner of the Clearview Expressway, defendant concedes in its motion that several employees of the State Department of Transportation acknowledged during depositions that defendant owns the Clearview Expressway (see Polstein Affirmation, ¶ 7; see e.g. Exhibit H (Ogurek EBT), p.36]; Exhibit I (Wokoun EBT), pp.12-14]). On these competing motions for summary judgment, there is no dispute that maintenance jurisdiction over the Clearview Expressway was returned to the City pursuant to Highway Law § 349-c (3.4) (see Polstein Affirmation, Exhibit G ["Maintenance Agreement"], ¶ 1), and it is also undisputed that the City, in fact, performed various maintenance activities to the Clearview Expressway pursuant to the Maintenance Agreement. However, defendant offers no argument that: (1) the State is not the owner of the Clearview Expressway; or (2) the provisions of article XII-B of the Highway Law pertaining to maintenance jurisdiction operate to relieve the State of its nondelegable duty to maintain the Clearview Expressway. Thus, even if defendant's substantial arguments that maintenance on the Clearview Expressway was the exclusive responsibility of the City of New York are fully supported by defendant's exhibits, defendant has not demonstrated that it did not owe the public a nondelegable duty to maintain the Clearview Expressway, and it is therefore not entitled to summary judgment dismissing the claim.
The Court notes that even if it was shown that defendant was not the owner of the Clearview Expressway, defendant's motion does not demonstrate that the maintenance agreement between defendant and the City divested the State of its "continuing maintenance responsibility" for the Clearview Expressway (Nowlin, 81 NY2d at 87). Indeed, such continuing maintenance responsibility is acknowledged in the evidence submitted by defendant in support of its motion (see e.g. Polstein Affirmation, Exhibit K (Adhvaryu EBT), p.106, lines 22-25 [the City patches the Clearview Expressway, but the State seals cracks]).
Defendant's argument that it is entitled to summary judgment because claimant has not proven that the State had actual or constructive notice of the allegedly dangerous condition that caused claimant's accident because there is no relevant evidence of such notice (see Polstein Affirmation, ¶ 16) is misplaced. Defendant cites several decisions rendered after trials of highway accident claims (see Carpino v State of New York, UID No. 2011-038-103 [Ct Cl, DeBow, J., Mar. 28, 2011]; Sanchez v State of New York, UID No. 2007-038-102 [Ct Cl, DeBow, J., Apr. 20, 2007]; Lupima v State of New York, UID No. 2010-039-188 [Ct Cl, Ferreira, J., Apr. 30, 2010]). However, in the current procedural posture of this claim, "[a]s the movant[] for summary judgment, it [is] the defendant['s] burden to establish the absence of notice as a matter of law" (Pirrelli v Long Island Railroad, 226 AD2d 166, 166 [1st Dept 1996]; see Santoni v Bertelsmann Prop., Inc., 21 AD3d 712, 713 [1st Dept 2005]), and "defendant cannot satisfy its burden merely by pointing to gaps in the [claimant's] case" (Sabalza v Salgado, 85 AD3d 436, 437-438 [1st Dept 2011]). Defendant offers no argument or evidence that it lacked prior notice of the alleged defect, and thus, it is not entitled to summary judgment dismissing the claim.
Turning to claimant's cross motion, he asserts that the elements of his cause of action - the existence of a dangerous condition, defendant's notice thereof, defendant's failure to remedy the condition, and the condition being the proximate cause of his injuries - have all been established (see Timko Affirmation, ¶ 24, et seq.), and that he is therefore entitled to summary judgment in his favor on liability. Defendant argues that claimant has failed to prove prima facie that defendant had notice of the alleged defect in the roadway or that the alleged defect caused claimant's accident (see Polstein Affirmation in Opposition, ¶ 16).
To prevail on the cross motion, claimant must demonstrate prima facie that the bump that allegedly caused his accident was a dangerous condition. Claimant's submission includes a set of pictures taken by claimant several weeks after the accident that purport to show the "bump" in the Clearview Expressway that caused his accident (see Timko Affirmation, ¶ 8.v; Exhibit 2; Polstein Affirmation, Exhibit E, pp.59-70). Claimant testified at his EBT that the accident occurred as he was in the left-hand lane of the three northbound lanes on the Clearview Expressway headed toward the Throgs Neck Bridge (id., Exhibit E, at pp.38, 40-41). As for how he identified the location of the accident, claimant testified at his 50-h Hearing that he "went [solely] by the police report," (id., Exhibit D, at p. 25, lines 4, 7) although he testified at both the 50-h Hearing and EBT that his memory had been refreshed by remembering a right curve and an overpass that he had gone under shortly before the accident (id., Exhibit D, at p. 25, 12-14; Exhibit E, at 59-60; 66-68). Defendant does not argue that the bump depicted in claimant's photos is not a dangerous condition, but contends that "there is no definitive proof that the pictures depict where the accident occurred" (Polstein Affirmation in Opposition, ¶ 13).
Assuming without deciding that claimant has established that his accident occurred at the location depicted in the photographs taken several weeks after the accident, there is an issue of fact over whether the bump depicted in the photographs was a dangerous condition. Claimant testified at his EBT that he was unaware of the height of the bump at the time of the accident (see Polstein Affirmation, Exhibit E, at p. 43, lines 3-4), but after returning to the accident scene several weeks following the accident to take photographs of the bump (id., Exhibit D, at p. 21, lines 3 and 5), claimant estimated was "three inches or so" in height (id., at p.19, line 25). Assuming that this evidence demonstrates prima facie that the bump was a dangerous condition, Bruce Ogurek, an engineer and the Acting Director of Construction for the New York State Department of Transportation, testified that the width of a bump as a vehicle travels over it is a factor in determining whether the bump is dangerous (see id., Exhibit H, at pp. 109-110).There are photographs of the bump that allegedly caused the accident in claimant's submission (Timko Affirmation, Exhibit 2), but there is nothing within those photographs that would enable the Court to ascertain the width of the bump, and the Court would be engaging in speculation and conjecture if it were to estimate the width. Accordingly, given defendant's proof that the width of a bump is relevant to whether it is a dangerous condition, and absent evidence of the width of the bump that allegedly caused claimant's accident, there is a triable question of fact whether the bump was a dangerous condition, and claimant's motion for summary judgment will be denied.
The Court understood Ogurek's reference to the "width" of the bump to mean the distance from the front to the back of a vehicle as it traveled over the bump, and not the length of the bump across the lane of travel. Further, although Ogurek testified that the height and width of a bump are factors in determining whether a bump is "acceptable," the Court interpreted such a term and the substance of the questioning about whether a bump was "acceptable" to referring to whether a bump was dangerous.
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Even if claimant demonstrated as a matter of law that the bump was a dangerous condition, his cross motion for summary judgment would be denied because he has not borne his burden of demonstrating prima facie that defendant had actual or constructive notice of the alleged dangerous condition (see Alvarez v Prospect Hosp., supra). Claimant offers no evidence that defendant had actual notice of the alleged defect in the Clearview Expressway that allegedly caused his accident, and thus, his arguments sound in constructive notice, i.e., that the defect was in existence for a substantial enough period of time for defendant to have discovered and remedied it (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).
Claimant relies on two sets of photographs to demonstrate that defendant knew or should have known of the defect that caused claimant's accident. The first is the set of pictures taken by claimant several weeks after his accident that purport to show the "bump" in the Clearview Expressway that caused his accident (see Timko Affirmation, ¶ 8.v; Exhibit 2; Polstein Affirmation, Exhibit E, pp.59-70). The second is a photograph taken by defendant that bears the date stamp of April 12, 2005, and which claimant asserts is "virtually identical" to the bump that is depicted in the photographs taken by claimant (see Timko Affirmation, ¶¶ 8.w, 26; Exhibit 1 "CMT 12 10/4/12" [bottom]). The 2005 photograph shows a condition in the surface of the left lane of either the northbound or southbound Clearview Expressway somewhere between 35th Avenue and the Throgs Neck Bridge (see Polstein Affirmation, Exhibit K, pp.71-72, 91-93). However, the 2005 and 2007 photographs do not appear to be of an identical location. Given the lack of particularity to the location of the bump depicted in claimant's 2007 photographs, and the broad generality of the location of the condition depicted in the 2005 photograph, claimant has not demonstrated that the two pictures are of the same condition, and thus, he has not shown prima facie that defendant had prior actual knowledge or constructive notice of the particular condition that allegedly caused his accident. Indeed, claimant's counsel acknowledges that "[i]f each side's photographs depict an identical condition in an identical location two years apart," defendant would be charged with actual and constructive notice, but that here, "[a]t the very least, there is a substantial question of fact in that regard" (Timko Reply Affirmation, ¶ 10).
In further support of a finding of constructive notice, claimant argues that the condition that caused his accident is usually attributable to weather conditions, and that it "most likely originated during the winter of 2007 or the summer of 2006, or before" (Timko Affirmation, ¶ 26). Claimant submits the brief affidavit of his expert, Herman Silverberg, a professional engineer, which states that the condition "most likely occurred during the winter of 2007, a few short months before the accident" (Timko Affirmation, Exhibit 5, at ¶ 4). Silverberg's opinion is apparently based upon a photograph taken by claimant in 2007 that shows a "virtually identical condiction" as appears in 2005 photograph, and that both photographs show an "uneven, raised and cracked road surface" and that such conditions "occur predominantly in winter months when water gets into cracks and freezes, which causes the concrete subsurface to expand and shift the asphalt" or "in the summer months during times of extreme heat" (id.). However, Silverberg's affidavit is devoid of any factual or other basis for his conclusion that the specific conditions in those photographs resulted from such causes, and his opinion is thereby rendered speculative and conclusory (see Romano v Stanley, 90 NY2d 444, 451-452 [1997] [expert affidavit "must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation" and cannot be "devoid of any reference to a foundational scientific basis for its conclusions"] see also Jones v G & I Homes, Inc., 86 AD3d 786, 789 [3d Dept 2011] [expert affidavit in support of motion for summary judgment must include facts or data]; Martin v Village of Tupper Lake, Inc., 282 AD2d 975 [3d Dept 2001]). Thus, Silverberg's affidavit is of no probative value on the issue of constructive notice.
Further, to the extent that claimant asserts that defendant should be charged with constructive notice of the condition that caused claimant's accident because its inspection schedule provided ample time for the condition to have been discovered and remedied (see Timko Affirmation, ¶ 27), the relevant testimony in this regard was by Kartikey Adhvaryu, a New York State Department of Transportation Resident Engineer for the Borough of Queens (see Polstein Affirmation, Exhibit K, pp. 6-8). His testimony generally demonstrates that routine inspections were done of the Clearview Expressway in the years and months prior to claimant's accident, but he lacked recollection of having noticed the condition that caused claimant's accident (see id., p.23). Thus, claimant has not demonstrated in support of his cross motion that defendant had actual knowledge of the allegedly dangerous condition that caused his accident, or that the condition existed for long enough such that defendant should be charged with constructive notice thereof.
In sum, it is
ORDERED, that defendant's motion number M-82909 is DENIED, and it is further
ORDERED, that claimant's cross motion number CM-83035 is DENIED, and it is further
ORDERED, that the trial of liability of this claim remains on the trial calendar commencing on June 24, 2013.
April 17, 2013
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Claim #116669, filed April 8, 2009;
(2) Verified Answer, filed June 8, 2009;
(3) Notice of Motion, dated January 23, 2013;
(4) Affirmation of Janet Polstein in Support of Motion for Summary Judgment, dated January 23, 2013, with Exhibits A-L;
(5) Notice of Cross-Motion, dated February 6, 2013;
(6) Affirmation of Nicholas I. Timko in Opposition to Motion and in Support of Cross-Motion, dated February 6, 2013, with Exhibits 1-5; including Affidavit of Herman Silverberg, P.E., sworn to February 7, 2013;
(7) Affirmation of Janet Polstein in Opposition to Claimant's Cross-Motion & In Further Support of Defendant's Motion, dated February 23, 2013, with Exhibit L;
(8) Claimant's Reply Affirmation in Further Support of Cross-Motion, dated March 4, 2013.