New York State Court of Claims

New York State Court of Claims

MILLIS v. THE STATE OF NEW YORK, #2001-005-513, Claim No. 91107, Motion No. M-61191


State's motion to dismiss a claim arising from a highway accident on the ground that it is barred by Highway Law §58 is denied, because the claim also states a cause of action based on negligence. Unlike the waiver of sovereign immunity for claims arising from defects on the highway, which is not effective between November 15 to May 1, the State's general waiver of immunity for claims arising from negligence or other malfeasance on the part of State officials (Court of Claims Act §8) is not limited to any one part of the year.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Donald J. Corbett, Jr.
Claimant's attorney:
Paul William Beltz, P.C.By: Kevin J. Sullivan, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 26, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 through 10, were read on motion by Defendant for an order dismissing the action:

1, 2 Notice of Motion and Affirmation in Support
  1. Affirmation in Opposition with Exhibits and Memorandum of Law annexed
  2. Reply Affirmation with Exhibits annexed
  3. Affirmation Response to Reply Affirmation with Exhibit annexed
  4. "Postsurreply" Affirmation
  5. Claimant's letter response
  6. Defendant's letter response
9, 10 Claim, Answer

Upon the foregoing papers, this motion is denied.

Defendant State of New York has moved to dismiss this claim on the ground that it is barred by Section 58 of the Highway Law. The claim arose from a highway accident that occurred in December 1994, when the vehicle driven by Claimant Richard Millis[1] struck a pothole on Route 31, a State highway in Albion, New York (Claim, ¶3). Highway Law §58 provides, in relevant part:

The state shall not be liable for damages suffered by any person from defects in state highways, except between the first day of May and the fifteenth day of November on such highways as are maintained by the state under such system as the commissioner of transportation may adopt pursuant to section 12,[2] but the liability for such damages shall otherwise remain as now provided by law, notwithstanding the construction or improvement and maintenance of such highways by the state under this chapter * * *.

Defendant argues that this law "clearly protects" the State from liability for damage caused by defects on its highways between November 15 and May 1 (Affirmation in Support, ¶4) and requires dismissal of the instant claim.

When it was first enacted in 1908, this portion of Highway Law §176 (the predecessor statute to Highway Law §58) was, in fact, little more than an unnecessary restatement of the fact that the State is insulated from liability by sovereign immunity.

The state shall not be liable for damages suffered by any person from defects in state and county highways (Johnson v State of New York, 186 App Div 389, 391; Belair v State of New York, 212 App Div 206, 209).

In 1910, however, language was added that converted the statute into a limited waiver of such immunity:

The state shall not be liable for damages suffered by any person from defects in state and county highways, except such highways as are maintained by the state by the patrol system * * * (L 1910, c 570).

It was quickly recognized that, although the words sounded as if they were creating an exception to something, the amendment was actually an affirmative act by the Legislature creating an express, statutory waiver of the State's otherwise universal immunity and assuming liability in one specific area (id.; Borden v State of New York, 113 Misc 232, citing to Smith v State of New York, 227 NY 405; see also, Best v State of New York, 114 Misc 272, 278-279, affd 203 App Div 339).

Whether a road was maintained by the State's "patrol system" was, apparently, a question of fact to be decided in each instance. In Borden v State of New York (113 Misc 232, supra), liability for an early March accident was imposed on the basis of testimony that a State patrolman was "in charge" of the area that had flooded, did work on the broken culvert "as a patrolman," and had made repairs at the point of the defect at the direction of his supervisor (id. at 237). From this the court concluded that the road "was maintained under the patrol system at the time." In addition, under the statute as it then existed, the court also found "no basis for the contention that there is a seasonal hiatus in the state's liability for defects in its highways under the patrol system," even if the patrolman "is not actually at work on the road because of climatic conditions" (id.). This situation changed in 1922, when the Legislature again amended the statute, this time to preclude liability for injuries occurring between November 15 and May 1 (L 1922, c 37, §17; Wolf v State of New York, 122 Misc 381).

By 1923, therefore, the statute assumed what is essentially its present form. Later changes to the statute removed reference to "the patrol system," inserting instead language referring to highways maintained under maintenance and repair systems adopted by the responsible State official. As needed, the statute has been amended to include updated designation of the State official in charge of the system of maintenance. The most recent amendment in 1971, for example, deleted references to the "Superintendent of Public Works" and inserted references to the "Commissioner of Transportation" (L 1971, c 1110, §54; 1971 Sessions Law, p 1991).

Prior to 1929, litigation relating to Highway Law §58 (then §176) dealt with such issues as what constituted a "defect" (Minshell v State of New York, 123 Misc. 177; Wolf v State of New York, 122 Misc 381, supra; Best v State of New York, 114 Misc 272, affd 203 App Div 339, supra); how significant the defect had to be to warrant the imposition of liability (French v State of New York, 120 Misc 867); and whether failure to warn of a danger constituted a defect (Belair v State of New York, 212 App Div 206, 209, supra, [holding that failure to warn of defects could not give rise to liability under the statute]). The situation changed significantly, however, in 1929, when the Legislature enacted §12-a (now §8) of the Court of Claims Act (L1929, c 467).

The waiver of immunity contained in the Court of Claims provision was far broader than that contained in the Highway Law. By the 1929 amendment, the State "completely assum[ed] liability for damages caused by the misfeasance or negligence of the officers or employees of the state while acting as such officer or employee" (Miller v State of New York, 231 App Div 363). In Miller, the Third Department noted that the two statutes "must be read together" and held that even when there could be no liability under the Highway Law provision (because the injury did not occur between May 1 and November 15 and/or because the negligence in question was not a "defect"), damages could be awarded under the Court of Claims Act if the injuries resulted from the State's negligence, such as the failure to warn of a dangerous condition. The court recognized that although "not expressly repealed" by the Court of Claims Act amendment, Highway Law §176 "was partially at least superseded" by that provision (id, at 368).[3]

With respect to whether the Highway Law statute retained any validity, the appellate court in Miller (supra) hypothesized that the Legislature might have intended that the State be held liable "for a defect in a highway not caused by such misfeasance or negligence." Another articulation of this continuing role is found in Hinds v State of New York (144 Misc 464, 466, affd no opinion 240 App Div 742, affd with no opinion, 264 NY 525):

[T]hese sections must be read together, and, when the accident was caused by a defect in the highway, as distinguished from a condition existing by reason of misfeasance or negligence of a state officer or employee, section 176 of the Highway Law still obtains, and the immunity of the state has not been waived by section 176 except between May 1st and November 15th, the period provided for maintenance under the ‘Patrol System.'

In Hinds, motorists were injured when their car skidded because of a differential in height between a roadway's brick center strip and concrete side strips, a condition that, it was held, did not result from official misfeasance or negligence. Because the accident occurred on November 16th, liability could not be imposed pursuant to the Highway Law provision and, consequently, the claim was dismissed. This result was later roundly criticized in Pierce v State of New York (41 NYS2d 602), in which the State was held liable for a similar long-standing structural defect, even though the accident occurred in March and thus there could be no liability pursuant to Highway Law §58:

We feel that the Hinds case is no longer good authority in light of more recent decisions relating to claims arising outside of the patrol period. The Courts are now taking a broader view, and impose liability where structural defects, known to its officers and employees, are involved, on the theory that it is the duty of the State to maintain the highways in a reasonably safe condition for travel at all times of the year. (id. at 604)

This "broader view" is exemplified in the many subsequent cases in which liability is imposed on the State for injuries caused by a highway defect, one not necessarily caused by negligence, as long as the State had notice and a reasonable time in which to remedy the situation or at least provide warning of the danger (see, e.g., Karl v State of New York, 279 NY 555; Doulin v State of New York, 277 NY 558; Juliano v State of New York, 273 App Div 936, aff'g 190 Misc 180; Torrey v State of New York, 266 App Div 900, 901; Sutherland v State of New York, 189 Misc 953; Dawley v State of New York, 186 Misc 571; Wasnick v State of New York, 183 Misc 1073; Ryan v State of New York, 180 Misc 370; Dunn v State of New York, 52 NYS2d 128). In each of these cases, for one reason or another, liability could not have been imposed under the Highway Law provision, but the existence of a defect and evidence of prior notice was held to be sufficient for the imposition of liability under the Court of Claims Act. Of course, liability may also result from the State's more active negligence, irrespective of whether recovery would be prohibited by Highway Law §58 (see, e.g., Logan v State of New York, 254 App Div 410 [negligent design]).

Defendant argues that this body of case law was abrogated by the State's re-enactment of Highway Law §58 in 1971. According to this argument, by re-enacting the statute, the Legislature intended to abrogate Court of Claims Act §8 to the extent that it is inconsistent with Highway Law §58 (i.e., to the extent that it waives liability for injuries caused by highway defects between November 15 and May 1).[4] There is certainly nothing in the legislative history itself to suggest that this was the intention (see, 1971 Sessions Law, p 1991), nor does the nature of the amendment – a "housekeeping" change to substitute references to the Commissioner of Transportation for those to the Superintendent of Public Works – suggest any more significant motive for the amendment. If the two statutes were, in fact, inconsistent, the passage of the 1971 legislation might well have accomplished the purpose anyway, pursuant to Statutes §398,[5] but "repeal by implication" is held in great disfavor (see, e.g., In Re Levy v Evans, 103 AD2d 681, citing City of New York v Maltbie, 274 NY 90) and is altogether inapplicable here. As a number of courts have previously indicated, these two statutes may, and must, be "read together" and both have continued validity, although the importance of the limited waiver contained in Highway Law §58 was certainly diminished by the more global waiver of immunity effected by Court of Claims Act §8.

For Highway Law §58 to act as a bar to any litigation, therefore, the claim must be one that is not based on allegations of negligence or other misfeasance on the part of the State. The only liability that is created uniquely by that statute is liability for an accident that takes place between May 1 and November 15 and that is caused by a defect in the highway "as distinguished from a condition existing by reason of misfeasance or negligence of a state officer or employee" (Hinds v State of New York,144 Misc 464, 466, supra). Accordingly, the only claims that would be entirely barred by the statute are those of the same type arising in the winter months, between November 15 and May 1.

Given the unquestioned ability of personal injury attorneys to at least argue negligence in almost any situation[6], it is hardly surprising that since 1929 there are very few cases in which Highway Law §58 has been either the sole basis of liability or served as a bar to litigation. It has happened on occasion, however, most notably in "pothole" cases. In Aetna Casualty and Surety Co. v State of New York (Claim No. 85216, Motion No. M-45852, filed August 4, 1992) and Queenan v State of New York (Claim No. 87217, Motion No. M-47831, filed August 24, 1993, supra), the claimants suffered injury during the winter months when their vehicles traversed pot holes located on State highways. In those claims, there were no factual allegations pointing to any specific type of negligence on the part of the State, liability being premised merely on the existence of the pot hole (a "defect") on the highway, and in both cases the winter-month exception in Highway Law §58 was held to bar recovery.[7]

The instant motion is brought pursuant to CPLR 3211 and is addressed to the pleading; it is not a motion for summary judgment (CPLR 3212), which would allow for the submission of evidence and would search the entire record. At the same time, I note, that there has been significant discovery and, in fact, the matter is now ready for trial.

The claim in this action alleges that Claimant's vehicle "was caused to come into contact with a defect in the pavement and/or roadway due to the negligence and carelessness of [the State] (Claim, ¶3) and, further, that, upon information and belief, "the negligence and carelessness of [the State] was in improper, inadequate maintenance, repair and upkeep of the roadway with respect to the formation of a pothole in said area" (Claim, ¶4). These allegations are sufficient – although only minimally so – to state a cause of action sounding in negligence (see, CPLR 3013 ["Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense."]). In other words, Claimant has not – in his pleading – limited himself to allegations relating solely to a defect on the roadway, a cause of action premised on Highway Law §58. What he may be able to prove is another matter altogether, and should he prove only the existence of a pot hole, failing to prove any acts of negligence that caused the accident, the winter-months exception to Highway Law §58 would bar recovery.

Because the allegations of the instant claim do not prevent Claimant from proving that his injuries resulted from negligence on the part of the State, not merely from a defect on the State highway, Highway Law §58 does not serve as an absolute bar to this action. Defendant's motion is denied.

April 26, 2001
Rochester, New York

Judge of the Court of Claims

[1] The term Claimant shall refer only to Richard G. Millis.
[2] Highway Law §12 authorizes the DOT Commissioner to provide for maintenance, repair, ice and snow control of State highways.
[3] A further difference between the two statutes was the time period in which a claim must be commenced. At that time, claims based on former §12(a) of the Court of Claims Act had to be initiated within sixty days after accrual, whereas actions brought pursuant to Highway Law §176 could be initiated within six months of the date of accrual (Court of Claims Act, former section 15; see, e.g., Feron v State of New York, 267 App Div 1012; Castellani v State of New York, 161 Misc 677; Killoran v State of New York, 155 Misc 26; Monahan v State of New York, 41 NYS2d 642).
[4] This same argument was recognized, but not ruled upon, in a case previously decided by me (Queenan v State of New York (Claim No. 87217, Motion No. M-47831, filed August 24, 1993).
[5] Statutes §398 provides, in relevant part: "It is the duty of the courts to so construe two statutes that they will be in harmony, if that can be done without violating the established canons of statutory interpretation. However, if the statutes are in irreconcilable conflict, it is likewise the duty of the courts to declare the abrogation of the earlier statute. * * *"
[6] Not unlike the ability of prosecutors to indict a ham sandwich.
[7] In Aetna Casualty and Surety Co. (supra), I held that the effect of the winter-month exception to Highway Law §58 was to define the State's duty "with respect to highway defects developing during the winter; i.e., a legislative declaration that the State has no duty to patrol for and repair potholes during the winter months." In Queenan (supra), I held that liability under Highway Law §58 cannot be premised on the State's failure to warn or give notice of a defective condition on the highway (accord, Belair v State of New York, 212 App Div 206, 209, supra).