The following papers have been read and considered on the State's motion to
dismiss: Notice of Motion, dated January 24 and filed January 25, 2002;
Affirmation in Support of Grace A. Brannigan, Esq., AAG, dated January 24 and
filed January 25, 2002, with annexed Exhibits A-D; Affirmation in Opposition of
Jon Epstein, Esq., dated March 26 and filed March 27, 2002, with annexed
Exhibits A-C; and the claim, dated December 12 and filed December 17, 2001, with
annexed Exhibits A-F.
While traveling on the southbound lane of the Major Deegan Expressway ("the
Major Deegan") in the vicinity of exit # 5 (Macombs Dam Bridge/W. 155th Street)
in New York City ("the City") on October 28, 2000 at approximately 5:00 A.M., a
vehicle operated by Adante Fowler ("the Fowler vehicle") was involved in a
four-car accident in which claimants David Simmons, Dante Swain and Sherrill
Williams (collectively, "claimants") allegedly suffered serious injuries within
the meaning of Insurance Law § 5102 (d) (claim, dated December 12 and filed
December 17, 2001, with annexed Exhibits A-F ["claim"]). Specifically, the
Police Accident Report (NYC) ("accident report") (Affirmation in Support of
Grace A. Brannigan, Esq., AAG, dated January 24 and filed January 25, 2002, with
annexed Exhibits A-D ["Brannigan Aff."], Exh. C) states as follows:
As the accident report makes clear, "vehicle 4" was the Fowler vehicle in which
claimants were passengers.
Claimants allege that defendants State of New York ("the State"), the New York
State Department of Transportation ("DOT") and the New York State Thruway
Authority (collectively, "defendants") owned the Major Deegan and the exit ramp
at the site of the accident (claim, ¶¶ 20-21, 34-35, 48-49);
"controlled certain traffic control device(s) and controlled vehicular traffic"
(id., ¶¶ 22, 36, 50), "operated certain traffic devices(s)"
(id., ¶¶ 23, 37, 51), "maintained certain traffic device(s)"
(id., ¶¶ 24, 38, 52) and "managed certain traffic device(s)" at
the Major Deegan and the exit ramp at the site of the accident (id.,
¶¶ 25, 39, 53); were "performing work" (id., ¶¶ 26,
40, 54) and "contracted to have work performed" at the Major Deegan and the exit
ramp at the site of the accident (id., ¶¶ 27, 41, 55); and "had
the duty to maintain . . . traffic control device(s) and control vehicular
and/or pedestrian traffic" there (id., ¶¶ 28, 42, 56).
According to the claim, defendants failed to keep the Major Deegan and the exit
ramp at the site of the accident "in a state of good repair and free from
defects, obstructions, nuisances, traps, and to maintain and operate the same in
a reasonably safe condition and manner for [claimants] and others lawfully
thereat to travel and/or near [sic], and to keep the same free [of] defects,
traps and conditions constituting a danger and menace to lawful vehicular and/or
pedestrian traffic at said location" (id., ¶ 57); and "caused,
created, permitted and/or allowed the [accident location] to be, become and
remain in a dangerous, defective and negligent condition and/or to permit said
location to be operated and/or controlled in a negligent manner and/or fail[ed]
to warn vehicular and/or pedestrian traffic upon said location of its dangerous
condition" (id., ¶ 58).
Each notice of intention annexed to the claim more explicitly alleges that
defendants negligently caused the exit ramp's closure "for construction without
any or adequate warning of the closing, and . . . allow[ed] vehicles to exit the
Major Deegan onto the exit ramp and be forced to stop and be trapped without a
safe area to remain or exit the area, and to become a trap for unsuspecting
motorists, and therefore permitt[ed] other vehicles to also exit behind the
claimant onto the same exit ramp and collide with the claimant's
and to become into such a state of
unsafe disrepair as to be a danger to any and all motorists passing by or over
said roadways, said condition constituting a trap and a hazard" (claim, Exhs. A,
C & E).
The State bases this pre-answer motion to dismiss on two grounds: that the
claim fails to describe adequately the manner in which the accident took place
(Brannigan Aff., ¶¶ 6-7); and that the State did not "operate,
maintain, or control" the southbound exit ramp of the Major Deegan at West 155th
Street McCombs Dam Bridge at the time of the accident, "nor did it have any
construction contracts at the situs" (Brannigan Aff., ¶ 8). In support of
the latter, the State submitted the affidavit of Osama Khalil ("Khalil"), a
Civil Engineer and Claims Engineer in DOT's New York City Regional Office.
Khalil made "an exhaustive search" of DOT's business records "referable to the
alleged accident situs" (Brannigan Aff., Exh. D [Khalil Aff.], ¶ 3),
including the "as built" plans maintained by DOT for all projects involving the
design, construction or reconstruction of the City's arterial roadways by DOT or
its contractors (id.,
¶ 4). He declares that his search for "as
built" plans "revealed that there was no DOT contract in effect that involved
design and construction of the exit ramp adjacent to the west side of the Major
Deegan Expressway southbound at or near W[.] 155th Street, Bronx, City and State
of New York on October 28, 2001 [sic],"
, ¶ 5), but rather that "the State designed and reconstructed
the Major Deegan Expressway southbound including the Macombs Dam/W[.] 155th
Street exit ramp prior to the date of accident under different contracts. . . .
[for] the construction, reconstruction, and safety improvements of the major
[sic] Deegan Expressway including the subject exit ramp #5" (id.
6). Khalil further declares that he also searched DOT's maintenance records,
which would have indicated if the State had any maintenance responsibility for
the Major Deegan and the exit ramp at the site of the accident, but found no
evidence of any such responsibility (id.
, ¶ 7). Based on his review
of DOT's "as built" plans and maintenance records, Khalil concludes that he "can
affirmatively assert that the DOT did not operate, maintain and control the
Major Deegan Expressway southbound exit ramp #5 on October 28, 2000"
, ¶ 8).
Finally, Khalil reviewed the DOT Construction Unit's records, which confirmed
"the absence of any evidence of the DOT's construction, reconstruction,
maintenance and/or control of the exit ramp adjacent to the west of [the] Major
Deegan Expressway southbound at W[.] 155th Street, Bronx, [New] York on the date
of the accident"; and, "[i]n the absence of affirmative documentation that the
State maintains and/or controls the subject ramp . . . there was no DOT
involvement with the closure of the ramp in question and the happening of this
alleged claim on October 28, 2000" (id., ¶ 11). Khalil notes,
however, that DOT's data base included documentation of a contract between the
New York City Department of Transportation and Schiavone Construction Co., Inc.
("Schiavone") (NYCDOT Contract #BRX287-R) for this work (id., ¶
In opposing the motion, claimants' attorney contends that the notices of
intention and claims "adequately describe the manner in which this accident
occurred" (Epstein Aff., ¶ 8; see also, id., ¶¶
9-11). Further, he argues that dismissal would be premature (id.,
¶¶ 12, 15), especially since "[u]pon information and belief" the Major
Deegan "is a roadway that is owned and controlled by [the State]" and "[u]pon
review of a road map, from a highly widely known publication, Hagstrom, the
Major Deegan . . . is also known as Interstate 87, a State Expressway"
(id., ¶ 13); therefore, claimants' attorney reasons that "since the
underlying accident occurred on this State roadway, there is a genuine issue of
fact as to whether the [State] . . . was partially liable for said accident.
There are genuine issues of fact as to which entities contracted to perform
construction on this State roadway on the date of accident. . . . there are
genuine issues of fact as to whether the State . . . owned, operated,
maintained, managed and controlled the subject location on the date of the
accident" (id., ¶ 14).
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 the 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, with its annexed notices of intention and accident report, fulfills
the requisite standard by alleging that claimants suffered serious injuries
within the meaning of Insurance Law § 5102 (d) when the car in which they
were passengers was involved in a chain collision at an exit ramp (exit #5 of
the Major Deegan), and that a proximate cause of this accident was the closure
of the exit for construction work (rehabilitation of the Macombs Dam Bridge)
without adequately warning passing motorists of the closure or providing
sufficient traffic control to prevent motorists from unwittingly exiting.
Although claimants have thus articulated a cogent theory of negligence, they
have provided no basis for ascribing this negligence to the State other than
counsel's "information and belief" that the State may have some responsibility
because a map that he bought identifies the Major Deegan as Interstate 87
(Epstein Aff., ¶ 13).
Moreover and contrary to the doubt professed by claimants' counsel, Khalil's
affidavit and its exhibits conclusively demonstrate that the construction
prompting the exit's closure was carried out pursuant to a contract between the
City and Schiavone to which the State was not a party (Brannigan Aff., Exh. D,
¶¶ 5, 11). Khalil explains in detail how he searched relevant DOT
records and found no evidence that DOT operated, maintained or controlled the
accident site on October 28, 2000 (id. ¶ 8).
The Major Deegan is a State arterial highway within the City (Highway Law,
and thus is subject to the
provisions of article XII-B of the Highway Law. As the Court understands
article XII-B in this context, the State would have attained ownership of the
accident site upon completion of the construction and reconstruction work
authorized under the earlier contracts described by Khalil (id.
6), and then would have transferred jurisdiction to the City (Highway Law §
349-c [3.4]; Nowlin v City of New York
, 81 NY2d 81; City of New York v
State of New York
, 282 AD2d 134, lv granted
97 NY2d 602).
The Attorney-General long ago observed that "Article 12-B resulted from
extensive negotiations between State and local officials, and to some extent
reflects competing considerations. Consequently, the lines of responsibility
between the City [referring to the City of New York] and State are not precisely
formulated" (1956 Ops Atty Gen 200). But here, the accident is attributed
solely to inadequate warning of or traffic control related to an exit closure
occasioned by a construction project undertaken by the City, not the State, at a
location that the State did not operate, manage, maintain or control. Under
these circumstances, the Court does not find the State's article XII-B ownership
of the accident site to be a potentially sufficient predicate for tort liability
(see, Hutley v New York State Thruway Auth., 139 Misc 2d 868,
869-870 ["[A]rticle 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"]).
Next, the Court does not have jurisdiction over DOT as an entity distinct from
the State (see, Court of Claims Act § 9). The Court has
jurisdiction over the New York State Thruway Authority (Public Authorities Law
§ 361-b), which did not appear on the motion, presumably because claimants
do not seem to have yet served their claim on this defendant (Court of Claims
Act § 11 [a] [ii]).
Based on the foregoing, the Court therefore grants the State's motion and
dismisses the claim against the State. Further, the Court sua sponte
dismisses the claim against DOT. With respect to defendant New York State
Thruway Authority, the Court merely points out to claimants that they have
failed to assert any basis for their information and belief that the accident
site is within the New York State Thruway Authority's jurisdiction (see,
e.g., Public Authorities Law § 356; Highway Law § 349-a).