New York State Court of Claims

New York State Court of Claims

McCORMACK v. THE STATE OF NEW YORK, #2000-028-101522, Claim No. 97186


Case Information

KEVIN McCORMACK The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: John Shields, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 22, 2000

Official citation:

Appellate results:

See also (multicaptioned case)

This claim arose on March 20, 1996, when Kevin McCormack (hereinafter "claimant") fell off a sanitation truck while traveling on the North Service Road adjacent to Sunrise Highway in Manorville, New York. At trial, claimant testified on his own behalf and offered the testimony of a civilian witness, Allen Erickson. Two employees of the New York State Department of Transportation ("DOT") testified for the defense.
The testimony established that at the time of the accident, claimant was employed by the Armar Carting Corporation, a refuse and recyclables hauling company. He worked with two other individuals on one of the company's garbage trucks, described as a mid 1980's ten-wheel Mack truck weighing 41,000 pounds empty. Claimant was responsible for moving garbage and recyclables from the curb to the truck. As the truck traveled along the designated route, claimant and one other employee stood on a step at the rear of the truck, holding onto a handle welded to the back of the truck. Claimant had worked for Armar Carting one year prior to the accident, and during that time he had traveled along the same route -- one which included the North Service Road -- as often as five times a week.
Claimant testified that at approximately 10:30 a.m. on March 20, 1996, he picked up two bundles of newspaper at the house immediately east of 400 North Service Road, advised the driver to move forward, and then climbed back onto the step on the rear of the truck. While he was turned to the side talking to his co-employee, who was also standing on the rear step, he felt the truck vibrate or "shimmy"[1] and he was jerked from the truck. He stated that he was "thrown" upward approximately ten feet and then landed on the asphalt shoulder of the road, primarily striking his right shoulder and left wrist.
Claimant testified that on the day in question he observed a pothole near the driveway of 400 North Service Road. He identified Exhibits 1, 2 and 3 as photographs that depicted the area where he fell and the pothole that he believes caused the truck to vibrate or shimmy and thus led to his being thrown from the truck. He testified that, before this date, he had never encountered any problems along this route and that he had not seen the pothole at that location prior in time.
Allen Erikson, who had resided since July 1986 at 301 North Service Road, just east of the accident site, testified regarding work that was done on this road at some time between 1990 and 1992. He recalled that in the vicinity where the accident occurred, a catch basin was moved from just west of the driveway to the premises located at 400 North Service Road to the east of that driveway in order to rectify a water drainage problem. The work was performed over a period of three or four days, during which time he saw several pieces of equipment, including a backhoe and dump truck. Mr. Erickson stated that the trucks that he observed were yellow-orange in color and had blue or black emblems on the door. Although he did not read the emblems, he believed that they were either State or County trucks because the emblems looked like those he had seen on State trucks in the past and because there was a "staging area" located nearby that he believed was for either State or County highway trucks. Mr. Erickson acknowledged that he never spoke with any worker who identified himself or herself as an employee of either the State or County, and, further, he confirmed that in the past when he had had complaints about drainage problems or potholes near his residence, he had directed those complaints to the Town of Brookhaven, not to the State.
The State's first witness, Peter Deyhle, testified that he had been employed by DOT for 23 years, serving as highway maintenance superintendent for the last 11 years. In that position, he supervises maintenance and repair of Route 27, which is also known as Sunrise Highway, and the Long Island Expressway. According to Mr. Deyhle, the subject service road was owned and maintained by the Town of Brookhaven and the State of New York had never performed maintenance work upon it. He testified that 1990 was the last year DOT used the "staging area" referred to by Mr. Erikson; after which point the State facility was moved to Holtsville, New York. In addition, he said that his crew has no backhoes, only dump trucks. He identified Exhibit K as a DOT truck, which he described as being yellow, not yellow-orange.
The State also called Stanley Lechner, a civil engineer employed by DOT for 47 years and the regional records officer. Mr. Lechner was shown several photographs and documents, and, during lengthy testimony, he explained the specifications that the State requires in connection with the installation of a catch basin and the curbs contiguous thereto. Mr. Lechner, who had conducted a site inspection, testified that, based upon his many years of experience as an engineer with the State, in his opinion the catch basin that he observed at the accident scene was not installed by the State of New York, as it met none of the specifications required by DOT for such installation.
After reviewing all the testimony, the Court concludes that on the date of claimant's accident, the State of New York was not the owner of the subject service road, nor was it responsible for maintenance of that road. DOT did not install the subject catch basin or patch the roadway surface, and it was not responsible to see that the roadway surface remained free from potholes. Consequently, even if a pothole or other defect were proven to be the result of negligence and to be a proximate cause of claimant's injuries, the State of New York cannot be liable for those injuries.
Accordingly, the Court now grants defendant's motion, on which decision was previously reserved, and dismisses the claim on the ground that claimant failed to prove by a preponderance of credible evidence that the State of New York was either the owner of the roadway in question or the party responsible for maintenance of the accident site.
Let judgment be entered accordingly.

November 22, 2000
Albany, New York

Judge of the Court of Claims

[1] Unless otherwise indicated, all quotations are from the Judge's trial notes, supplemented as necessary by reference to the Court's audio tape of the trial.