New York State Court of Claims

New York State Court of Claims

KIZELNIK v. THE STATE OF NEW YORK, #2003-028-511, Claim No. 106009, Motion No. M-65266


Synopsis


Case Information

UID:
2003-028-511
Claimant(s):
ZEV KIZELNIK, an infant over the age of 14 years by ESTHER KIZELNIK, His Mother and Natural Guardian and ESTHER KIZELNIK, Individually
Claimant short name:
KIZELNIK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106009
Motion number(s):
M-65266
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
GOLDSTEIN & GOLDSTEIN, P.C.BY: Mark I. Goldstein, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Grace A. Brannigan, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 4, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In reaching its decision, the Court has read and considered the following papers:


1) Notice of Motion to Dismiss, dated May 21, 2002 and filed on May 24, 2002;

2) Affirmation in Support of Grace A. Brannigan, together with Exhibits "A" and "B" dated May 21, 2002 and filed May 24, 2002.

The infant Claimant herein was struck by an automobile on a bicycle/roller skating path on Flatbush Avenue at the Belt Parkway East exit ramp, Brooklyn, New York.

The State moves to dismiss, alleging that the situs of the accident is not part of the State arterial system (Affirmation in Support, p 2 [unpaginated]). Accordingly, the State argues that the Court lacks jurisdiction. The State also argues that the Claim fails to describe how the accident occurred (Affirmation in Support, p 3 [unpaginated]).

The attorney for the Claimant has failed to submit any papers in opposition; and has failed to return a number of calls from the Court concerning its lack of opposition.

In support of its argument that the State did not own, operate or maintain the area where the accident occurred, the State submitted the Affidavit of Osama Khalil, the Claims Engineer in the New York City Regional Office of the New York State Department of Transportation (Notice of Motion, Exhibit "B"). Mr. Khalil states that he has received the records for the situs of the accident and that the records reveal that the New York City Department of Parks designed and constructed the original Flatbush Avenue bridge in the 1940's, and that in 1995 the New York City Bureau of Bridges gave a design contract to Manual Elkin Co. P.C. for the bridge[1] (Khalil Affirmation, Notice of Motion, Exhibit "B" p 6 [unpaginated]). Mr. Khalil opines that the State is in no way responsible for the area of the accident.

Based upon the foregoing, Defendant's motion is granted and the Claim shall be and hereby is dismissed.



March 4, 2003
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] On the date of the accident, the roadway in question was being reconstructed by Beaver Concrete Construction Co., Gateway Industries, LCC, under a contract from the New York City Bureau of Bridges.