New York State Court of Claims

New York State Court of Claims

JEMIOLO v. THE STATE OF NEW YORK, #2002-005-000, Claim No. 92264


Claimant failed to establish that there was any negligence by the Defendant in the inspection and maintenance of a seasonal state park road open only during the non-winter months.

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:
UAW Legal Services Plan
By: Timothy L. Burke, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: James L. Gelormini, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 17, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On July 12, 1995, Claimant rented a cabin in Letchworth State Park. She was operating her motor vehicle, a 1988 Chevrolet Astro Van, which she avers was in excellent condition, on Main Park Road on the way to her cabin. Claimant states that at first Main Park Road was a paved surface roadway but it later turned into a "dirt" surface which contained numerous potholes. As she traversed the dirt portion, her vehicle kept hitting the road and scraping the surface, at which time the muffler was allegedly damaged. Claimant alleges that the negligence of the Defendant consisted of its failure to "correct the the bumpy rugged conditions existing on Main Park Road." She seeks damages in the amount of $367.85 with interest.

The cabin Claimant actually rented was located on East Park Road[1]
which is a seasonal road, constructed mainly of asphalt concrete with two portions which are gravel,[2] and is open to the public only from mid-March to December 1. Park personnel annually inspect the road when it is first opened to the public, and they maintain it during the nonwinter season, to wit, when open to the public. In July, 1995, there were no complaints received concerning the condition of East Park Road and there were no reported accidents. In sum, the Defendant was never placed on notice of any complaints about this road's surface in 1995, prior to this incident.
Claimant is unable to locate even an approximate location on the actual road where the alleged muffler damage occurred and has not offered any proof of the failure of Defendant to maintain it. There was no notice of any defects or dangerous conditions given to the park personnel or Defendant's agents. I find that the Defendant has used reasonable care to maintain this seasonal road.

The claim must be dismissed as Claimant has failed to sustain her burden of proof. The location of the alleged defectively maintained portion of the road was vaguely presented. More significantly, I am satisfied that the entire graveled and asphalt concrete paved portions of East Park Road were adequately maintained and that travelers thereon were given proper and adequate notice of the road's condition, with its limited speed limit of 25 miles per hour. The Defendant also established that in 1995 some
nine thousand vehicles had traversed the seasonal road in question with no complaints in the record before me about the road surface.[3]
Indeed, as argued by the Defendant, the Fourth Department, in reviewing a comparable circumstance, found no municipal liability when a driver of an all terrain vehicle along a seasonal dirt and gravel road was injured,
inter alia, as municipalities must guard only against contemplated and foreseeable risks (citing Tomassi v Town of Union, 46 NY2d 91, 97) (Palloni v Town of Attica, 278 AD2d 788, lv denied 96 NY2d 709). In Palloni, similarly a matter in which there had been no prior complaints with respect to a seasonal road, dismissal was also granted because municipalities may not be held liable for their discretionary judgments in the area of highway planning unless the plan evolved without adequate study or lacked a reasonable basis (Weiss v Fote, 7 NY2d 579, 585-586, rearg denied 8 NY2d 934), and, as comparably established here through the testimony of Raymond Goll, an Assistant Regional Director for the State Department of Parks with responsibility for Letchworth State Park, budgetary resources for road maintenance were proportionately allocated.
Thus in 1995, at Letchworth, 95% of the maintenance budget was allocated for the Main Park Road, where 95% of the park patrons travel, and 5% was allocated to maintain roads which 5% of the patrons utilize, as the Defendant's maintenance plan primarily considered the safety of all the park's roads, regardless of whether the road had a year-round or a seasonal use. Given the absence of notice of prior complaints or reports of accidents on the seasonal road, it could hardly be argued that the Defendant's determination to allocate some 5% of the maintenance budget for the road in question was not reasonable and rational, and thus no negligence may be inferred due to the condition or maintenance of the seasonal road in question.

The Claimant has failed to sustain her burden of proof. The claim must be and hereby is dismissed. All motions not heretofore ruled upon are now denied.

Let judgment be entered accordingly.

June 17, 2002
Rochester, New York

Judge of the Court of Claims

[1]See Exhibit E.
[2] Presumably the "dirt" surface referenced by Claimant.
[3] This represented some 5% of the annual vehicle traffic in the park during 1995.