New York State Court of Claims

New York State Court of Claims

FLYNN v. THE STATE OF NEW YORK, THE STATE OF NEW YORK DEPARTMENT OF TRANSPORTATION, #2003-030-901, Claim No. 107392, Motion No. M-66719


Synopsis


Case Information

UID:
2003-030-901
Claimant(s):
LISA FLYNN and MICHAEL FLYNN
Claimant short name:
FLYNN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107392
Motion number(s):
M-66719
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
Shaw, Licitra, Bohner, Esernio, Schwartz & Pfluger, P.C.by Michael J. Stacchini, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 11, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court read and considered the following papers on defendant's motion for summary


judgment: Notice of Motion, Affirmation and Exhibits, Affirmation in Opposition, Claim,


Answer.

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, defendant[1] 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 affidavit.

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, denied.

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.


September 11, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims





[1]All references to "defendant" are to the State of New York. The unnecessary reference to the Department of Transportation is stricken from the caption.