New York State Court of Claims

New York State Court of Claims

MEYERS v. STATE OF NEW YORK, #2002-018-192, Claim No. 100603, Motion Nos. M-65034, CM-65389


Synopsis


There are factual issues surrounding both the motion and cross motion for summary judgment. Both motions are denied.

Case Information

UID:
2002-018-192
Claimant(s):
PAMELA C. MEYERS
Claimant short name:
MEYERS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100603
Motion number(s):
M-65034
Cross-motion number(s):
CM-65389
Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
STANLEY LAW OFFICESBy: DAVID M. STEWART, ESQUIRE
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: GORDON CUFFY, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 22, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimant brings a motion for partial summary judgment solely on the issue of the State's


duty to maintain and repair a sidewalk approach to a State-owned bridge. Defendant opposes the

motion and cross-moves for summary judgment on the ground that claimant cannot prove notice

of the defective condition or proximate cause.

The claim alleges that on September 5, 1998, claimant was walking on the sidewalk along State Route 297, when she fell as a result of a portion of the sidewalk having settled. Claimant was not on the bridge portion of Route 297 at the time of her fall. Claimant suffered serious injuries to her right hand and wrist as a result of the fall.

Claimant asserts, through her attorneys,
that she served a Notice to Admit upon the State that the State of New York owned, operated, possessed, maintained, supervised, and/or controlled the bridge on State Route 297, in the Town of Geddes, County of Onondaga, State of New York. The State responded, admitting that it owned and controlled that bridge, but failing to acknowledge that it maintained and supervised the bridge. As a result, the claimant now brings this motion for summary judgment solely on the State's duty to maintain and supervise the sidewalk approach to this bridge.
In support of claimant's position that she is entitled to partial summary judgment, she submits the pleadings; discovery demands and responses; New York State Department of Transportation Plans for the construction of the bridge over Route 297 in the Town of Geddes; the deposition testimony of James F. Skelly, a civil engineer with the Department of Transportation, responsible for supervising the bridge inspection program for Region 3 of the State of New York, and Larry E. Hasard, regional bridge maintenance engineer, with the Department of Transportation; Table of Maintenance Jurisdiction; 1999 Inspection Report of the Route 297 bridge, reviewed by James F. Skelly; Memorandum from J.E. Fietze to P. Houghton, Transportation Maintenance Group for the Department of Transportation regarding a "safety flag" for the beginning left sidewalk in which it is noted the sidewalk settled and may be a tripping hazard; the deposition testimony of claimant and Daniel Patalino, Jr., Town of Geddes Highway Superintendent. Defendant, relying on many of the same exhibits, opposes claimant's motion and seeks summary judgment on the basis that the Town of Geddes is responsible for the maintenance of the sidewalk at the location of the accident in accordance with Highway Law §140(18). Summary judgment, as is often said, is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (
Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395). The issue of which entity has the duty for maintenance and supervision where claimant fell is not ripe for summary judgment. There remains factual issues as to whether the location of the depression is part of the sidewalk or part of the bridge. Highway Law §140(18) makes it the duty of the town superintendent to maintain all sidewalks in the town constructed by the State. Highway Law §230 defines a bridge to include the approaches. The Court has before it the deposition testimony of Raymond McDougall, James F. Shelly, and Larry E. Hasard, which all indicate that maintenance duties at the location of claimant's accident belong to the Town of Geddes. Mr. Hasard testifies that although legally not the State's responsibility, while the State employees are on location inspecting the bridge, they do inspect the approaching sidewalks as well, and in fact, performed repairs at the location of claimant's accident. The Table of Maintenance Jurisdiction also describes sidewalks as the responsibility of the Town of Geddes. The deposition testimony of Daniel Patalino, Jr., the Town of Geddes Superintendent, indicates that, to his knowledge, the Town has never maintained the sidewalks, road or bridge.
Even if the duty for maintenance is the responsibility of the Town of Geddes as defendant argues, a question arises whether the State, by its actions in inspecting the location and making repairs, has assumed a duty it might not otherwise have. In any event, the factual issues are numerous and prevent any finding of summary judgment in favor of claimant on the issue of the duty for maintenance and supervision at the location of claimant's fall.

Similarly, defendant's request for summary judgment is also denied. There are factual issues as to whether the State had notice of the defect or whether the depression in the sidewalk caused claimant to fall.

Claimant's motion for summary judgment is DENIED. Defendant's cross-motion for summary judgment is also DENIED.

November 22, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding these motions:

Notice of Motion....................................................................................1


Affirmation of David M. Stewart, Esquire, in support with

exhibits attached thereto..............................................................2


Notice of Cross Motion...........................................................................3



Affirmation of Gordon Cuffy, Assistant Attorney General, in

opposition to Claimant's motion and in support of his

cross-motion with exhibits attached thereto...................................4


Affirmation of David M. Stewart, Esquire, in opposition

to cross-motion and in support of motion......................................5


Expert Affidavit of Peter Arsenault, AIA, NCARB....................................6


Claimant's Memorandum of Law...............................................................7


Defendant's Memorandum of Law.............................................................8