The following papers, numbered 1 to 8, were read on motions by Defendant for
orders dismissing the claims:
1, 2, 3, 4 Notice of Motions, Affidavits and Exhibits Annexed
5, 6 Opposing Affidavits and Exhibits Annexed
7, 8 Filed Papers: Claims
Upon the foregoing papers, the motions are denied.
The Defendant seeks to dismiss the claims herein because they each allegedly
fail to state a cause of action against the State of New York (CPLR 3211[a]).
The underlying claims allege that, on or about October 29, 1999, Claimant
Samantha Rogers and Claimant Dale Rogers were injured in a motor vehicle
accident in Farmington. The essence of the
against the State is the purported
"negligent (sic), carelessness, and recklessness of The State . . . in failing
to timely and properly respond to a 911 report of a collision of a vehicle with
a deer and the result of a deer carcass obstructing a lane of travel . . . which
resulted in an extremely dangerous road hazard . . ." and which was a
substantial factor in the motor vehicle accident in question.
The Defendant's motions urge that the claims fail to state a cause of action
because they allege no facts upon which it can be concluded that the State of
New York had a duty to respond and remove a deer carcass from the road in
question. In opposition, Claimants urge that the motions are premature in that
there has been no discovery, and supply a letter from the Ontario County
Attorney which at least supports the notion that the New York State Police had
assumed the responsibility to respond to 911 calls, and particularly the one
alleged in the claims regarding the deer carcass on or about October 29,
I am of course aware that the letter from the Ontario County Attorney discusses
the involvement of the State Police sufficiently for me to deny the motions at
this time. The same letter similarly reflects a 45 minute period between the
initial 911 call purportedly received by the State Police at 20:51, and the 911
call reporting the motor vehicle accident in question at 21:36. This letter of
course only indicates the time of the second 911 call, and not the time of the
accident herein, presumably an even shorter period of time.
Regardless, I do find that the claims, as buttressed by the letter from the
Ontario County Attorney raising the involvement of the State Police, should not
be dismissed upon the instant motions. The motions are denied.