New York State Court of Claims

New York State Court of Claims

McDERMOTT v. THE STATE OF NEW YORK, #2002-001-030, Claim No. 105306, Motion No. M-64569


Synopsis



Case Information

UID:
2002-001-030
Claimant(s):
VINCENT H. McDERMOTT
Claimant short name:
McDERMOTT
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105306
Motion number(s):
M-64569
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
John C. Guttridge, P.C.By: John C. Guttridge, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Grace A. Brannigan, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
April 26, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on defendant's motion to dismiss: Notice of Motion, dated January 10 and filed January 14, 2002; Affirmation in Support of Grace A. Brannigan, Esq., AAG, dated January 10 and filed January 14, 2002, with annexed Exhibits A-B; Affidavit in Opposition of Vincent H. McDermott, sworn to February 5 and filed February 8, 2002; Affirmation in Opposition of John C. Guttridge, Esq., dated February 6 and filed February 8, 2002, with annexed Exhibit A; Reply Affirmation of Grace A. Brannigan, Esq., AAG, dated February 15 and filed February 19, 2002; and Claim No. 105306, sworn to November 28 and filed December 6, 2001.

While traveling southbound on the Franklin D. Roosevelt Drive ("FDR Drive") in New York City ("the City" or "the City of New York") on October 16, 2001 in a right-hand lane designated for emergency vehicles, an authorized emergency vehicle owned and maintained by the New York City Police Department in which claimant Vincent A. McDermott ("claimant") was a passenger was struck and he was injured (claim, sworn to November 28 and filed December 6, 2001 ["claim"], ¶¶ 3 [a], [b] and [f]). Claimant alleges that defendant State of New York ("defendant" or "the State") did not properly care for and maintain the FDR Drive's southbound lane, which was in its "ownership, possession and control" (id., ¶ 3 [c]); and, in particular, "improperly barricaded and/or maintained" the portions of the right lane blocked off and designated for emergency traffic (id., ¶ 3 [e]; see also, id., ¶ 3 [g]), which caused the vehicle in which he was riding to be "struck without warning or notice by Zhi Le Xu, who unlawfully traveled into the emergency lane through the unsafe and improperly maintained barricade" (id., ¶ 3 [f]).

Defendant moves to dismiss the claim on several grounds: that the Court lacks jurisdiction because the area in which the collision took place was wholly maintained and controlled by the City of New York (Affirmation in Support of Grace A. Brannigan, Esq., AAG, dated January 10 and filed January 14, 2002, with annexed Exhibits A-B ["Brannigan Aff."], ¶¶ 5-7); that the claim fails to describe adequately the manner in which the accident took place (Brannigan Aff., ¶¶ 8-10); and that the claim fails to state a cause of action because any negligence on the part of the State was not a proximate cause of claimant's alleged injuries (Brannigan Aff., ¶¶ 11-12). In support of its motion, the State submitted the affidavit of Osama Khalil ("Khalil"), a Claims Engineer in the Regional Office of the New York State Department of Transportation, who declares that the arterial highway system where claimant's accident occurred is owned by the State, but maintained and controlled by the City (Brannigan Aff., Exh. B ["Khalil Aff."], ¶¶ 2-3, 6-7); and, to substantiate this declaration, submits a copy of Official Order # H2014, which transferred jurisdiction for maintenance of this portion of the FDR Drive from the State to the City as of September 26, 1983 (Khalil Aff., ¶¶ 2, 5-7 and attachment).

In response, claimant confirms the State's supposition that he is a New York City police officer who seeks here to recover for line-of-duty injuries (Affidavit in Opposition of Vincent H. McDermott, sworn to February 5 and filed February 8, 2002 ["McDermott Aff."], ¶ 4). He reiterates that because the State improperly barricaded and/or maintained the highway, the vehicle in which he was a passenger was "struck without warning or notice by Zhi Le Xu, who unlawfully traveled into the emergency lane through the unsafe and improperly maintained barricade" (id., ¶ 7).

For his part, claimant's attorney portrays the claim as replete with "clear concise allegations," which allowed the State to investigate and ascertain its liability (Affirmation in Opposition of John C. Guttridge, Esq., dated February 6 and filed February 8, 2002 ["Guttridge Aff."], ¶¶ 5-6), and repeats yet again the allegation that the State improperly barricaded and/or maintained the highway, allowing the vehicle in which claimant was a passenger to be "struck without warning or notice by Zhi Le Xu, who unlawfully traveled into the emergency lane through the unsafe and improperly maintained barricade" (id., ¶ 7); that pursuant to Highway Law § 349, the State shares responsibility with the City for the safety and maintenance of the FDR Drive (id., ¶¶ 3-4); that claimant has stated a claim under General Municipal Law § 205-e for which violation of Highway Law § 349-c (8-a) is the statutory predicate (id., ¶¶ 4, 10); and that claimant cannot be expected to respond to the State's allegation about proximate cause before discovery (id., ¶ 9).

Section 11 (b) of the Court of Claims Act provides that a claim "shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed." While "absolute exactness" is not required by section 11 (b), the claim must include enough information "to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances" (Heisler v State of New York, 78 AD2d 767). Specifically, the manner in which claimant was injured and how the defendant was negligent must be plainly stated or susceptible to reasonable inference from the claim (id., at 767-768).

This claim does not comply with these rudimentary requirements. Claimant alleges that he was injured in an automobile accident that occurred when the authorized emergency vehicle in which he was a passenger was struck by another car; that the accident occurred in an emergency lane of the FDR Drive at a specified time and place; and that the driver allegedly at fault "unlawfully traveled into the emergency lane through the unsafe and improperly maintained barricade" (claim, ¶ 3 [f]; McDermott Aff., ¶ 7; Guttridge Aff., ¶ 7). He does not state what kind of automobile accident occurred: Was it a rear-end collision? a side impact collision? a head-on collision? He does not specify in what way the barricade was "unsafe" or "improperly maintained": Was it the kind or shape of the barricade used? the placement of the barricade(s) or of the particular barricade? something else? Claimant states that the driver allegedly at fault "unlawfully" drove "through" the barricade. Does this mean that the barricade was "unsafe" and "improperly maintained" merely because it permitted the driver access (or alternative access) to the emergency lane? Did the driver allegedly at fault ignore the barricade, or was he somehow directed into the emergency lane by the barricade(s) (see, e.g., Gregorio v City of New York, 246 AD2d 275 [automobile accident attributed to defective median barrier that launched vehicle into path of oncoming traffic])? In short, claimant does not in any way describe what was supposedly "unsafe" or "improperly maintained" about the barricade(s) much less relate any such "unsafe" or "improperly maintained" characteristic to the happening of the automobile accident in which he was injured.

Concomitantly, the generality of claimant's allegations thwarts his attempt to state a common-law negligence cause of action against the State for improper highway maintenance (see, General Obligations Law § 11-106). The Court agrees with claimant that the State's transfer to the City of jurisdiction to maintain the portion of the FDR Drive where the accident occurred does not, by itself, absolve the State of potential liability for an accident attributable to the condition of the highway (Nowlin v City of New York, 81 NY2d 81; Gregorio v City of New York, 246 AD2d 275, 279, supra [Article XII-B of Highway Law makes City and State jointly responsible for safety of arterial highways]). As noted previously, however, the nature of the "unsafe" and "improperly maintained" condition alleged is indeterminate and obscure. Morever, the date and location of the accident (as well as defendant) suggest that the "unsafe" and "improperly maintained" barricade(s) may have been traffic control devices temporarily put in place after September 11th. To the extent that claimant intends to attribute this automobile accident to some failure of traffic control, "article 39 of the Vehicle and Traffic Law grants cities in general, and New York City in particular, traffic control authority over the roads and thoroughfares within their boundaries" (Hutley v New York State Thruway Auth., 139 Misc 2d 868, 869-870).

Next, claimant also contends that he has stated a cause of action under General Municipal Law § 205-e, which provides a police officer with a cause of action for line-of-duty injuries occasioned by another party's culpable negligence in failing to comply with statutes, ordinances, rules, orders and requirements of governments and their departments, divisions and bureaus; and identifies the State's purported violation of Highway Law § 349-c (8-a) as the statutory predicate for his section 205-e cause of action (Guttridge Aff., ¶¶ 4, 10). In particular, he cites paragraph (a) of subdivision (8-a), which reads as follows:
Except as provided hereafter the state shall indemnify and hold harmless such city for any and all liability for damages for personal injury, injury to property or wrongful death for losses arising from or occasioned by the manner of performance of the functions under any agreement with a city for the maintenance and repair of state arterial highways pursuant to this section.
While claimant apparently interprets the term "such city" in section 349-c (8-a) (a) to comprehend the City of New York, the First Department in City of New York v State of New York (282 AD2d 134, lv granted 97 NY2d 604) has held quite to the contrary (State has no duty under Highway Law § 349-c [8-a] to indemnify City of New York for tort claims arising out of incidents occurring on State arterial highways located within City's boundaries because "the phrase ‘such city' within the provisions of Highway Law § 349-c [8-a] does not include the City of New York," 282 AD2d at 145). Even if it were otherwise and even if claimant's injuries "[arose] from or [were] occasioned by the manner of performance of the functions . . . for the maintenance and repair" of the FDR Drive at the accident site pursuant to an agreement under section 349-c between the State and the City, Highway Law § 349-c (8-a) (a) does not impose the kind of particularized mandate or clear legal duty the violation of which may serve as the statutory predicate for a cause of action against the State under General Municipal Law § 205-e (Gonzalez v Iocovello, 93 NY2d 539; see also, Highway Law § 349-c [8-a] [f], which provides that the benefits of subdivision [8-a] "shall inure only to such city and shall not enlarge or diminish the rights of any other party . . .").

Based on the foregoing, the Court grants the State's motion and dismisses the claim without prejudice to claimant's right to apply for permission to file a late claim pursuant to section 10 (6) of the Court of Claims Act.


April 26, 2002
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims