New York State Court of Claims

New York State Court of Claims

LOTEMPIO v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY, #2003-031-076, Claim No. 101159, Motion No. M-66585


Synopsis


Question of fact regarding State paving and maintenance of area surrounding city owned manhole cover precludes summary judgment in favor of Defendant.

Case Information

UID:
2003-031-076
Claimant(s):
CHARLES J. LOTEMPIO, III
Claimant short name:
LOTEMPIO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101159
Motion number(s):
M-66585
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
KAVINOKY & COOK, LLPBY: JOAN M. FILDES, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 21, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 5, were read on motion by Defendant for summary judgment:
1. Defendants' Notice of Motion, filed March 25, 2003, with attached exhibits;
2. Claimant's Affidavit in Opposition, sworn to April 23, 2003, with attached exhibits;
3. Defendants' Reply Affidavit, sworn to May 20, 2003, with attached exhibits;
4. Claimant's Surreply Affidavit, sworn to May 23, 2003;
5. Defendants' Supplemental Affidavit, sworn to June 24, 2003, with attached exhibits. Claimant was injured while operating his motorcycle on Virginia Street in the city of Buffalo as he approached the northbound entrance ramp to Interstate 190 ("I-190"). Claimant alleges his motorcycle "bottomed out" in a hole in the road that was raised several inches above, and encircled a manhole cover, causing him to fall off his motorcycle and injure himself.

Defendants argue, in this motion, that Claimant has failed to demonstrate that the accident site was not constructed in a reasonably safe manner and that Defendants do not own or control the manhole cover Claimant allegedly struck.

In any application for summary judgment, the moving party bears a heavy burden in establishing that he or she is entitled to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). Both parties provided extensive documents in support of their respective positions. There appears to be no issue as to the ownership of the manhole itself. Nor does there appear to be an issue regarding who is responsible for maintenance of the ramp. Upon reading the submissions as outlined above, I find that the Defendants have no responsibility for the manhole cover at the bottom of the hole at issue in this matter. I find that the Defendants exercise dominion and control over the northbound ramp to I-190 from Virginia Street. There is an issue, however, regarding what part, if any, the Defendants' conduct, relating to the paving and maintenance of the ramp around the manhole cover contributed to Claimant's accident.

For the reasons set forth above, it is hereby,

ORDERED, that Defendants' motion for summary judgment is denied.

October 21, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims