New York State Court of Claims

New York State Court of Claims

GERWITZ v. THE STATE OF NEW YORK, #2001-005-532, Claim No. 100439, Motion Nos. M-63374, CM-64081


The Defendant is not entitled to absolute immunity for its legislative and regulatory acts here in permitting bicycling on the Lake Ontario State Parkway. The State delegated authority to the State park commission to prohibit, restrict or regulate bicycling on certain roadways within the park region's jurisdiction. Liability is predicated, in part, on the decision to eliminate the prohibition and to allow bicycling. Summary judgment is denied and a trial will be conducted with respect to the State's assertions of qualified limited immunity pursuant to Weiss v Fote, relating to the death of the bicyclist when he was struck by motor vehicle while bicycling on the fog line of the Lake Ontario State Parkway, as well as issues of proximate cause and contributory negligence.

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):
Claimant's attorney:
Trevett, Lenweaver & Salzer, PC
By: James C. Gocker, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 5, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On October 3, 2001, the following papers, numbered 1 to 19, were read on motion by Defendant, inter alia, for summary judgment dismissing the claim and on cross-motion by Claimant for partial summary judgment:

1, 2, 3, 4, 5 Notice of Motion, Affirmation, Affidavits and Exhibits Annexed

6, 7, 8, 9, 10, 11 Notice of Cross-Motion, Affidavits and Exhibits Annexed
12, 13, 14 Defendant's Answering/Reply Affirmation, Affidavits and Exhibits Annexed
  1. Claimant's Reply Affidavit
16, 17, 18, 19 Filed Papers: Claim, Amended Claim, Answer, Amended Answer

Upon the foregoing papers, and after hearing James C. Gocker, Esq., on behalf of the Claimant and Thomas G. Ramsay, Esq., on behalf of the Defendant, the motion to dismiss is granted in part and the cross-motion is denied.

Claimant, as Administratrix of the Estate of decedent, brings this claim sounding in negligence and the wrongful death of her husband. The decedent was an off-duty New York State Trooper who was bicycling on the Lake Ontario State Parkway on July 22, 1997, when he was struck and killed by a motor vehicle. The Defendant State of New York moves, inter alia, for summary judgment dismissing the claim, while Claimant's cross-motion seeks partial summary judgment on her behalf. I will discuss below Defendant's motion as it seeks dismissal of certain causes of action alleged in the Amended Claim, but purportedly not raised in the Notice of Intention to file a Claim.

My analysis here focuses on the Defendant's limited waiver of sovereign immunity, and legislative enactments affecting both the parkway and bicycling. The thrust of Claimant's causes of action relate to the State's purported culpability for the failure to prevent bicyclists from using the Lake Ontario State Parkway, in failing to warn motorists, in failing to provide a safe pathway, or proper lane markings, in failing to take reasonable precautions for the safety of bicyclists, and generally creating a dangerous, hazardous and defective condition. The Amended Claim raises allegations of negligent maintenance and construction, not providing an adequate shoulder, failing to provide a bicycle lane, etc. Primarily, all allegations relate to the failure to prevent decedent's bicycle from having access to the roadway at all, or to the fog line at its perimeter, on which decedent apparently was riding when he was struck.

Highway Law §316 is recited in relevant part below:

The authorities having charge or control of any highway, public street, park, parkway, driveway, or place, shall have no power or authority to pass, enforce or maintain any ordinance, rule or regulation by which any person using a bicycle or tricycle shall be excluded or prohibited from the free use of any highway, public street, avenue, roadway, driveway, parkway, park, or place, at any time when the same is open to the free use of persons having and using other pleasure carriages, except upon such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages ...

This statute has a venerable history derived primarily from the Highway Laws of 1890 and 1909. Section 316 was enacted in its current form by Chapter 63 of the Laws of 1936. A review of the 1936 Bill Jacket reflects the recodification of the Highway Law, with the intention to update the then existing Highway Law of 1909. It made "no changes ... in the substantive law" (Bill Jacket, p 3, 13 February 1936, letter from State Senator Ogden Ross to the Governor's Counsel), and sought "passage of a simple and readable Highway Law in place of a law the nucleus of which was created during the horse-and-buggy era" (Bill Jacket, p 6, Senate Committee Memorandum), further acknowledging that motor vehicles were no longer a luxury, but a necessity. From 1936 to the present, this statute has remained untouched by the legislature, except for cosmetic amendments in 1969 (Chapter 407) and 1978 (Chapter 655) merely modifying the name of the department having jurisdiction over affected roadways in New York City. Thus, it can be seen that the legislature has not seen fit to enact any substantive legislative amendments in this statute's history of 65 years. While this court often is called upon to apply the "vintage highway rule", here I review what might well be characterized as a vintage or venerable statute.

As noted above the legislature last revisited §316 in 1978. But in 1969, by Chapter 654, §4, the legislature enacted Vehicle and Traffic Law §1229[1], which specifically excluded pedestrians, animals and certain non-motorized vehicles, including bicycles, only from State expressway highways and State interstate route highways (as defined by Vehicle and Traffic Law §§145-a and 145-b, referencing Highway Law §§340-c and 340-a, respectively). A review of that Bill Jacket (pp 2-3, Memorandum in Support) reflects the legislative intent, as pertinent to the questions here, to prohibit pedestrians and bicycles from those specified controlled access highways by means of a generalized statute, thus eliminating or minimizing the necessity of posting signs in order to enforce pre-existing regulations prohibiting such use (with certain exceptions) on those highways. In other words, the prohibitions already existed as to those specified types or classes of highways, but now it became a matter of law, and not regulation, and could be enforced regardless of whether signs were posted. The Commissioner of the Department of Transportation (DOT), in his letter recommending the Governor's signature (Bill Jacket, p 6), noted that the bill was sponsored by DOT, and further observed that it was possible that paths might be provided on some of the affected highways for bicyclists, pedestrians or horseback riders.

It may be reasonably inferred that the legislature, having taken the opportunity to revisit limitations of bicycle usage on certain types of roadways, intentionally left §316 untouched, and it is this statute that forms one basis for the Defendant's motion for dismissal, to wit, that its legislative and regulatory actions are protected by sovereign immunity. Addressing first the State's purported immunity based upon its legislative actions, it must be noted that the legislature delegated certain related authority when it enacted Vehicle and Traffic Law §1630, entitled "Regulation of traffic on highways under the jurisdiction of certain public authorities and commissions" which permits, inter alia, the office of parks, recreation and historic preservation,[2] to enact ordinances, orders, rules or regulations to prohibit, restrict or regulate traffic on any highway under its jurisdiction, including, in subdivision 3, devices moved by human power. First, there is no dispute that the Genesee State Park and Recreation Commission is such an office, and as such was empowered with State legislative authority to prohibit, restrict or regulate bicycle riding. Indeed, it did so initially, and prohibited bicycle traffic on the Lake Ontario State Parkway until its decision in 1979 to permit bicycling thereon, effective in 1980.

Claimant argues that Vehicle and Traffic Law §1630 and Highway Law §316 are inherently and manifestly inconsistent, and tend to nullify one another, thus she urges that the earlier statute will be considered repealed by the more recent statute (New York Statutes §391). She then contends that this is reinforced by regulations enacted pursuant to the statutory authority of §1630, at 9 NYCRR (Office of Parks, Recreation And Historic Preservation); Chapter I. Parks; Subchapter A. Statewide Rules; §377.1 - Regulated activities:
The following activities are prohibited on property under the jurisdiction, custody and control of the office, except in areas specifically designated therefor, during such hours or seasonal periods specifically authorized and subject to such conditions as may be contained herein...
(p) Bicycling.

It is hardly persuasive to try to embellish the effect of one statute (Vehicle and Traffic Law §1630) over another (Highway Law §316) by piggybacking upon regulations enacted pursuant to the authority of the former.[3] I do not read the statutes as inconsistent, but rather to the contrary, fully consistent with one another. I find that the legislature, in enacting Vehicle and Traffic Law Title VIII, article 35, et. seq., including article 38 as relevant herein, delegated its authority with respect to certain State park regions including the one covering Lake Ontario State Parkway, and did not by intention or implication repeal Highway Law §316.

To the extent that Defendant seeks dismissal relying upon a theory of absolute immunity for its legislative enactments, it must be denied. While such a theory may be valid, as the "enactment of legislation cannot serve as a basis for imposing civil liability" (Xerox Corp. v Town of Webster, 131 Misc 2d 817, 821; Roberson v Bossier Parish Police Jury, 535 So. 2d 1199; cf., Kessel v Purcell, 119 Misc 2d 449), here, the legal authority utilized by the Genesee State Park and Recreation Commission to prohibit bicycle riding until 1980, and the legal authority it exercised to permit it thereafter, are both derived from the same source, and there is no entitlement to absolute immunity in such circumstances.

With respect to Defendant's argument that it is entitled to absolute immunity based upon its regulatory enactments, that application too must be denied. Defendant relies primarily on a case involving a State agency's promulgation and lack of implementation of a safety regulation involving helmets for harness racing drivers (Dunckley v State of New York, 136 Misc 2d 767). But Dunckley involves "the exercise of the State's sovereign powers [in which] [b]y statute, only the defendants may regulate the activity of harness racing, and no private person is given this authority. (See, Racing, Pari-Mutuel Wagering and Breeding Law § 101.)" (id, at 771). The Defendant is not entitled here to absolute immunity for its regulatory enactments.

When bicycles are permitted on a roadway, their use is subject to Vehicle and Traffic Law article 34. Of particular application here is Vehicle and Traffic Law §1231 (L. 1959, c.775) which subjects all persons riding bicycles upon a roadway to all the rights and duties applicable to the driver of a vehicle[4], and §1234 (a) which notes:

(a) Upon all roadways, any bicycle ... shall be driven either on a usable bicycle ... lane or, if a usable bicycle ... lane has not been provided, near the right-hand curb or edge of the roadway or upon a usable right-hand shoulder in such a manner as to prevent undue interference with the flow of traffic except when preparing for a left turn or when reasonably necessary to avoid conditions that would make it unsafe to continue along near the right-hand curb or edge. (Emphases supplied).

Article 34 therefore governs the bicyclist, not the Defendant. It directs bicyclists to bicycle lanes or paths, if they exist and if they are usable, but if not, then bicyclists are directed to drive near the right-hand curb, right edge of the roadway (presumably something akin to the fog line upon which the decedent was riding when he was struck), or the right-hand shoulder. This statute does not impose any duty or responsibility on the part of the Defendant, and if a bicyclist has a right to ride on the parkway, relying upon article 34 to infer a duty to provide a bicycle lane or path would require me to engage in judicial legislating, an invitation I would decline to accept.

Liability here is predicated upon the decision to amend Title Nine of NYCRR §391.5, repealing the prohibition of bicycles from the parkway pavement, effective May 1, 1980. It appears that bicyclists had been prohibited from using the Lake Ontario State Parkway since the adoption of regulations by the Genesee State Park and Recreation Commission, Part 391.5 (see Defendant's Exhibit B). The Claimant finds fault with the repeal thereof, and the steps taken by the Defendant in conjunction with the repeal of the prohibition.

The purported authority for the enactment of the bicycle prohibition appears to come from

Vehicle and Traffic Law §1630, and Parks, Recreation and Historic Preservation Law §7.11 (2), which authorizes each regional commission to "[a]dopt policies, rules and regulations applicable to its park region subject to the general policies formulated by the commissioner." Although it appears that the parkway was "owned by State Parks," it was constructed by DOT (see Claimant's Exhibit 6, pp 13-14). It appears that in 1975, there was a transfer of parkway maintenance from the Office of Parks and Recreation to DOT (Claimant's Exhibit 14).

As noted above, the State is not entitled to absolute immunity based upon its legislative and regulatory enactments, as a matter of law. However with respect to the Defendant's contentions of entitlement to qualified immunity as articulated in Weiss v Fote, 7 NY2d 579 and its progeny, judgment may not be granted as a matter of law. Thus the parties are permitted to present factual proof at trial, inter alia, to consider whether the State would be entitled to limited or qualified immunity from liability for its decision to permit bicycling on the Lake Ontario State Parkway. In particular, I expect to focus upon the sufficiency and adequacy of the Defendant's decision to eliminate the prohibition against bicycling, in addition to issues related to proximate cause, contributory negligence, the width of the shoulder, the absence of and or duty to provide various safety devices, etc.

As an alternative remedy Defendant seeks to strike certain allegations from Paragraph 6 of the Amended Claim, and the Bill of Particulars. While the Amended Claim does not separately state and number its causes of action (CPLR 3014), in effect Defendant seeks dismissal of such allegations as if they alleged separate causes of action, and that is the way I will address them. The essence of this motion examines the Notice of Intention to file a claim (Exhibit A to the motion), undisputably served on October 15, 1997, and the Amended Claim filed on July 13, 1999, and seeks dismissal of certain allegations which it contends are untimely in contravention of Court of Claims Act §§10(2) and (3), to the extent that they purportedly were not alleged in the Notice of Intention, and thus when allegedly raised for the first time in the Amended Claim, were served and filed more than 90 days from their accrual. The Defendant preserved this defense with particularity in the Fifth Affirmative Defense (Paragraph Tenth) of its Answer to the Amended Claim, filed on July 30, 1999.[5] I scrutinized Paragraph 4 of the Notice of Intention and Paragraph 6 of the Amended Claim. The following allegations of negligence in the Amended Claim for:
(1) permitting pedestrians and/or other non-motorized traffic to use this Parkway;

(2) changing the Vehicle & Traffic laws without properly providing for bicycle use;

(3) permitting the Parkway to be operated in an unguarded and otherwise unprotected manner;

(4) any allegations sounding in public nuisance, and

(5) failing to provide sufficient safeguards for pedestrians and/or non-motor vehicle traffic to utilize the roadway
were not raised in and cannot be inferred from the Notice of Intention and are untimely. All of these causes of action have been served and filed more than ninety days after their accrual (Court of Claims Act §10[3]) and more than ninety days after the appointment of Claimant as Administratrix on August 1, 1997 (Court of Claims Act §10[2]; see Exhibit A appended to the Amended Claim). The Defendant preserved its objections as to the timeliness of these causes of action, and thus to the extent that they are alleged in the Amended Claim or raised in the Bill of Particulars, they are dismissed, and Defendant's motion to that extent is granted. As to any other causes of action for which the Defendant alleges untimeliness, the motion is denied.

It is not necessary at this time to address arguments dealing either with the culpable conduct of the driver who struck and killed Decedent, other than to note that he acknowledged his own inattentiveness and visual awareness of the decedent prior to striking him, or the decedent's own conduct in which he rode the fog line when at least there was an available shoulder of the road.

The decedent had the right to bicycle where and when he did, and the concomitant duty to obey the rules of the road governing bicyclists. The driver who struck him did not obey the rules of the road. It remains to be seen whether the Defendant, however, did anything wrong.

The Defendant's motion is granted in part, but otherwise denied; the cross-motion is denied, and the trial remains scheduled to commence on December 3, 2001.

November 5, 2001
Rochester, New York

Judge of the Court of Claims

Renumbered, in a technical correction, as §1229-a (L. 1971, c. 274, §2).
Vehicle and Traffic Law §1630, as enacted in 1959, used the term "office of parks and recreation." There were unrelated and immaterial statutory amendments over the years, most recently in 2000 (L.2000, c. 142, §§2, 3), when the term was amended to the "the office of parks, recreation and historic preservation." This benign amendment has no bearing on the issues in question other than to reflect that this statute has remained substantively unchanged, as pertinent here, since its enactment in 1959.
Claimant has highlighted three State Park regions which currently prohibit the use of bicycles on certain parkways, to wit, 9 NYCRR §397.3(e), First Park Region, Niagara Frontier State Park; §412.2(f), "except on designated bikeways", Palisades Interstate Park Commission, and §415.6(b), Ninth Park Region, Long Island State Park. However, I note that regulations with respect to the Second Park Region, Allegany State Park, part 398; the Third Park Region, Genesee State Park, part 399; the Fourth Park Region, Finger Lakes State Park, part 400; the Fifth Park Region, Central New York State Park, part 401; the Seventh Park Region, Taconic State Park, part 402; the Tenth Park Region, the Thousand Islands State Park, part 416: the Eleventh Park Region, Saratoga-Capital District State Park, part 417, and the Twelfth Park Region, New York City, part 418, are all silent with respect to limitations or prohibitions on the use of bicycles. This observation is made not for quantitative purposes, but merely to observe that some regions prohibit or restrict bicycles and others do not.
The one exception, a finding that the legislature did not intend bicyclists "riding in the flow of motor vehicle traffic to incur the obvious danger inherent in giving an extended hand signal" for at least 100 feet before turning (Vehicle and Traffic Law §1163[b]) (Secor v Kohl, 67 AD2d 358, 362-63), appears solitary (Blitstein v Capital Dist. Transp. Auth., 81 AD2d 981).
Lest it be argued to the contrary, a claim here was initially filed on May 26, 1999, which for all intents and purposes was identical to the Amended Claim, except for the inclusion of an ad damnum clause. The Defendant's answer to the original claim, filed on July 6, 1999, raised the same affirmative defense, albeit in Paragraph Ninth, and thus its allegations of untimeliness and resultant lack of jurisdiction were timely and properly raised in its initial answer, and not waived (Knight v State of New York, 177 Misc 2d 181).