The court read and considered the following papers on defendant's motion for
judgment: Notice of Motion, Affirmation and Exhibits, Affirmation in Opposition,
This claim arises out of a March 13, 2002 automobile accident on the Laurelton
Parkway, at or near its intersection with the Cross Island Expressway in Queens.
Claimants allege that the State of New York was negligent in the design,
construction and maintenance of the Laurelton Parkway. In its answer,
alleges that "The State of New York
does not own, operate or maintain the situs of the accident alleged in the
claim," and it now seeks summary judgment for that reason.
Defendant's motion relies on an affidavit from Osama Khalil, Regional Claims
Engineer with the Department of Transportation (DOT). Mr. Khalil alleges that
(1) he has done an "exhaustive search" of DOT records pertaining to the accident
site; and (2) the records he found revealed that the Laurelton Parkway was
constructed by the New York State Department of Public Works (DPW) in the
1930's, that it was "reconstructed" in the 1950's by the Triborough Bridge and
Tunnel Authority, that the DPW "did some improvements" to the road in the
1960's, and that the DOT "reconstructed and did some safety improvement" in the
1980's and 1990's.
With respect to maintenance records, Mr. Khalil advises that, when the State
has designed and constructed, or reconstructed, a highway or bridge designated
in §349-f of the Highway Law, the DOT must issue an official order
transferring maintenance and repair jurisdiction to the City of New York. Mr.
Khalil was unable to find such a maintenance transfer order in DOT's files, and
refers to the absence of such an order, and the lack of a reference to the
highway on a schedule of a maintenance agreement between the State and the City,
as "conclusive evidence that the State had not and did not own, maintain,
control the subject situs from the time of its original construction to the
present." It is unclear if he intends to say that the State did not own,
maintain or control the highway exclusively from the time it was first
constructed through the date of claimant's accident, or if he means that the
State did not own, operate or maintain the highway at any time during this
period, an assertion that seems belied by the other information in his
Defendant's argument is somewhat difficult to follow. On the one hand, it
refers to construction and reconstruction work that it performed from the
original construction of the highway in the 1930's through the 1990's. Yet in
the next breath, it maintains that the absence of a copy of a maintenance order
in its files or a reference to the highway in a maintenance agreement is
conclusive evidence entitling it to summary judgment of dismissal.
"The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case" (Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853). The court's role is to ascertain
whether any disputed issue of material fact exists, and not to resolve any such
issue (Falk v Goodman, 7 NY2d 87; Sillman v Twentieth Century-Fox Film
Corp., 3 NY2d 395, 405; Daliendo v Johnson, 147 AD2d 312).
Here, not only is there no clear picture of what entity may bear responsibility
for the alleged defect in the highway, there is no explanation of exactly what
that defect was and whether it relates to design, construction or maintenance.
To the contrary, what the papers before the court reveal are genuinely disputed
factual issues with respect to these crucial matters, which is perhaps not
surprising since there has been no disclosure in this claim, which was filed on
February 27, 2003. Accordingly, the motion must be, and hereby is,
The court also notes that the answer contains two affirmative defenses that
need to be addressed at this point in the litigation: that the claim is
jurisdictionally defective because it fails to include any particularization of
the State's conduct and because it fails to include an adequate description of
the allegedly dangerous condition (fifth and sixth affirmative defenses).
Defendant made no reference to these defenses in the instant motion and the
court is not sure whether such is an indication that defendant is abandoning
these contentions. In any event, claimants are directed to make a motion to
strike these two defenses from the answer, within sixty (60) days of the filing
date of this decision, in the event that they are unable to secure a stipulation
from defense counsel withdrawing them.