New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION and THE NEW YORK STATE THRUWAY AUTHORITY, #2002-001-056, Claim No. 105354, Motion No. M-64621


Synopsis



Case Information

UID:
2002-001-056
Claimant(s):
DAVID SIMMONS, DANTE SWAIN and SHERRILL WILLIAMS
Claimant short name:
SIMMONS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF TRANSPORTATION and THE NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105354
Motion number(s):
M-64621
Cross-motion number(s):

Judge:
SUSAN PHILLIPS READ
Claimant's attorney:
Shaevitz & Shaevitz, Esqs.By: Jon Epstein, 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:
June 28, 2002
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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:
At TPO driver of veh. #1 states while driving S/B on the Major Deegan Expressway driver of veh. #1 attempted to exit on the off ramp (exit #5) not knowing the exit ramp was closed. Veh. #1 then slowed down. Driver of veh. #2 pulled behind veh. #1, driver of veh. #3 pulled alongside of veh. #2 when driver of veh. #4 struck driver of veh. #2 causing a chain collision w/veh. #[s] 1, 3. All veh's were attempting to exit the Major Deegan on exit #5 when accident happened. A/O was not a witness to accident.

As the accident report makes clear, "vehicle 4" was the Fowler vehicle in which claimants were passengers.[1]

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 vehicle,[2] 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],"[3] (id., ¶ 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" (id., ¶ 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., ¶ 13).

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, § 349-f)[4] 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).


June 28, 2002
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]The accident report, when read with the cover sheet, identifies "Driver Inattention" on the part of the Fowler vehicle's driver as an "Apparent Contributing Factor[]" to the accident (Brannigan Aff., ¶ 6; Exh. C [cover sheet and item #21]). The accident report without the cover sheet was apparently annexed to the notices of intention served on the State (Affirmation in Opposition of Jon Epstein, Esq., dated March 26 and filed March 27, 2002, with annexed Exhibits A-C ["Epstein Aff."], Exh. A; but cf., Brannigan Aff., Exh. A), but not to the notices of intention annexed to the claim subsequently served on the State (Epstein Aff., Exh. B) and filed with the Court of Claims.
[2]The accident report, however, indicates that the motor vehicle in which claimants were passengers was the last of four cars to enter the exit ramp and, in fact, initiated the chain collision.
[3]This is an obvious typographical error. The context and the remainder of the affidavit make clear that Khalil meant to refer to the year 2000, not 2001.
[4]The Major Deegan is also, as claimants' counsel correctly noted, a State interstate route; specifically, the Major Deegan is part of Interstate Route Connection 512 (Highway Law § 340-a). In fact, the Major Deegan marks the beginning of Interstate 87, the primary route from New York City northward to Montreal. Once Interstate 87 leaves the Bronx, it continues north into Westchester County as the New York State Thruway main line. After Interstate 87 reaches Albany, it leaves the New York State Thruway main line and continues north to the Canadian border as the Adirondack Northway.