New York State Court of Claims

New York State Court of Claims

ROGERS v. THE STATE OF NEW YORK, #2000-005-577, Claim No. 101634, Motion No. M-61132


Synopsis


Defendant's motions to dismiss the claims are denied.

Official Citation:
288 AD2d 926
Appellate Result:
Reversed

Case Information

UID:
2000-005-577
Claimant(s):
DALE ROGERS AND JOYCE ROGERS
Claimant short name:
ROGERS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101634
Motion number(s):
M-61132
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Foley & FoleyBy: James F. Foley, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Reynolds E. Hahn, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 13, 2000
City:
Rochester
Comments:

Official citation:
288 AD2d 926
Appellate results:
Reversed
See also (multicaptioned case)
2000-005-578


Decision

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][7]). 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 claims[1] 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, 1999.

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.


November 13, 2000
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims




[1] The claims are in all pertinent matters identical, except for the names of the Claimants and the relationship of Joyce Rogers as the mother of Samantha and the wife of Dale.