New York State Court of Claims

New York State Court of Claims

CORNEILLE v. THE STATE OF NEW YORK, #2000-009-441, Claim No. 96909, Motion No. M-62352


Synopsis



Case Information

UID:
2000-009-441
Claimant(s):
FRANCISCA CORNEILLE, Administratrix of the Estate of CARREN ETIENNE, Deceased and FRANCISCA CORNEILLE, Individually
Claimant short name:
CORNEILLE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96909
Motion number(s):
M-62352
Cross-motion number(s):

Judge:
Nicholas V. Midey, Jr.
Claimant's attorney:
LAW OFFICES OF PETER N. LITTMAN
BY: Peter N. Littman, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney General of Counsel.
Third-party defendant's attorney:

Signature date:
November 21, 2000
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The defendant State of New York has moved for summary judgment pursuant to CPLR § 3212.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits (including Affidavit of Raymond T. McDougall 1,2


Letter dated October 4, 2000 from Peter N. Littman, Esq. 3

The facts of this claim are not in dispute. On September 3, 1996, claimant's decedent was operating a motor vehicle and proceeding northbound on Interstate Route 81 in the Town of Hastings, Oswego County. As he approached the Oswego County Route 12 overpass bridge, a cinder block was thrown by third parties from the overpass, striking his vehicle and causing his death.

The County Route 12 overpass bridge is owned by the State and maintained by the New York State Department of Transportation.

This claim was subsequently filed, alleging negligence against the State in the design, construction, maintenance, inspection, and repair of the overpass. Specifically, claimant alleged that the State should have installed protective screening on the overpass which would have prevented third parties from throwing objects from the bridge at vehicles proceeding below on Route 81.

As there are no material issues of fact, the Court must therefore determine whether defendant is entitled to summary judgment as a matter of law.

In support of its motion, the State has submitted the affirmation of Raymond T. McDougall, a civil engineer employed by the New York State Department of Transportation in Region Three, which encompasses the area in which this incident occurred. In his affidavit, Mr. McDougall states that he has examined the records of the Department of Transportation and has found no reported instance where objects had been thrown from this bridge by third parties prior to the death of claimant's decedent. Since there had been no prior reported incidents, Mr. McDougall further stated that the addition of fencing to this bridge was not considered a priority by the Department of Transportation in the determination of maintenance, repair, and improvement projects in this region. On the basis of this affidavit, defendant asserts the doctrine of qualified immunity (as enunciated in Weiss v Fote, 7 NY2d 579). In support of its application, defendant specifically refers to the claim of Zentner v New York State Thruway Authority, 247 AD2d 679. In Zentner, the Appellate Division, Third Department affirmed the decision of my esteemed colleague, Hon. Thomas J. McNamara, in a similar claim for wrongful death. The Zentner claim was based upon facts similar to the claim herein, in that it also involved an object thrown from a bridge onto a vehicle proceeding on the underlying roadway. In Zentner, no protective screening had been installed on this overpass, even though there had been a record of objects being thrown from this bridge prior to the incident. The Court found in that case that the reported incidents, in which no serious injuries had occurred, did not mandate "the placement of protective screening on the overpass" (Zentner v New York State Thruway Authority, supra, at 681). The failure of the New York State Thruway Authority to take any action in response to these incidents did not constitute negligence.

In this Court's view, the principle of law set forth in Zentner applies squarely to the facts of this claim. The State is entitled to the defense of qualified immunity, and no liability can attach on the basis of the State's failure to install fencing or protective screening on the Route 12 overpass, especially in light of the fact that there had been no prior reported incidents of objects being thrown from this bridge.

Accordingly, for the reasons set forth above, it is

ORDERED, that Motion No. M-62352 is hereby GRANTED; and it is further

ORDERED, that Claim No. 96909 is hereby DISMISSED.


November 21, 2000
Syracuse, New York

HON. NICHOLAS V. MIDEY, JR.
Judge of the Court of Claims