The underlying claim in this case arises from a December 31, 1999 accident in
which Daniel Freeman, a pedestrian, was struck by two automobiles while crossing
Queens Boulevard mid-block near its intersection with 72nd Drive in Queens. Mr.
Freeman subsequently died from his injuries. Claimants allege that the State
was negligent in "owning, operating, managing, maintaining, controlling,
designing and/or inspecting the aforesaid location . . ." Among other things,
claimants allege that the accident site should have been barricaded or cordoned
off to prevent pedestrian access.
This is defendants' motion to dismiss the claim pursuant to CPLR 3211 on the
ground that the City of New York, rather than the State, is responsible for the
accident site. At claimants' request, the parties were advised by the Court in
a March 2, 2004 letter that the motion would be treated as one for summary
judgment pursuant to CPLR 3211(c), and they were given the opportunity to make
additional submissions on the motion. * * *
Article XII-B of the Highway Law (§§349-b through 349-f) was enacted
in 1944 for the purpose of constructing and modernizing arterial highways in
cities throughout the State, including the City of New York. Under such
article, the State is empowered to spend State and Federal funds for the
construction and reconstruction of such highways.
Highway Law §349-e designates those highways in cities other than the City
of New York which are subject to article XII-B and §349-f lists highways in
the City of New York.
Subdivision 3.4 of Highway Law §349-c provides that once State
construction or reconstruction of an arterial highway in the City of New York is
complete, "jurisdiction" is returned to the City, although the State retains
responsibility for maintenance and repair. See subdivisions 7-9 of §349-c.
However, in order for the State to have such maintenance and repair
responsibility, two requisites are necessary: (1) the highway in question must
have actually been "constructed, reconstructed or improved" by the State; and
(2) the State commissioner of transportation must have issued an official order
declaring such highway "to be a part of such system of highways for such
purposes of maintenance and repair," and such order must have been filed with
the State Department of Transportation, the Department of State and the office
of the clerk or official who performs the related functions of the city in which
such highway is located. See Highway Law §349-d.
It is undisputed that §349-f of the Highway Law lists "Queens boulevard
from Queensborough bridge approach to Van Wyck expressway" as a New York city
route governed by article XII-B, and that Daniel Freeman's accident occurred on
such portion of Queens Boulevard.
Claimants argue that as such, the State of New York is jointly liable with the
City of New York for Mr. Freeman's accident, citing Nowlin v City of New
York, 81 NY2d 81, 595 NYS2d 927 (1993) and Gregorio v City of New
York, 246 AD2d 275, 677 NYS2d 119 (1st Dept 1998). In Nowlin, the
State and City were found to be jointly responsible for the Henry Hudson
Parkway, and in Gregorio, they were found jointly responsible for a
section of the Bronx River Parkway.
A crucial distinction, however, obtains between those two cases and the instant
case: In both Nowlin and Gregorio, the State had either
constructed or reconstructed the highways at issue, while in this case, there is
no indication that the State constructed, reconstructed, or did any sort of work
on Queens Boulevard. Defendants maintain that the State did not build Queens
Boulevard and has not done any projects on it so as to bring it into the State
arterial system. In that regard, the State has submitted the affidavit of Osama
Khalil, Claims Engineer in the New York City Regional Office of the New York
State Department of Transportation. Mr. Khalil states that he searched the
records of the Department of Transportation, including construction and
maintenance records, and his review showed that Queens Boulevard has not been
constructed or reconstructed pursuant to the Highway Law. See the March 26,
2001 supplemental affidavit of Osama Khalil attached to defendants' April 5,
2001 reply affirmation. Claimants have failed to dispute Khalil's contention;
they have submitted no order pursuant to Highway Law §349-d or anything
else to suggest that there was State work was performed on Queens
, the Court of Appeals referred to the State as having
"attained ownership of the Henry Hudson Parkway due to a reconstruction
under article XII-B." 81 NY2d at 87, 595 NYS2d at 929 (emphasis supplied). The
Court went on to explain that in 1978, the State had transferred jurisdiction to
the City but had retained maintenance responsibilities, as contemplated by
article XII-B. Such responsibilities had been delegated to the City under an
ongoing maintenance agreement - - as permitted by subdivisions 7-9 of Highway
Law §349-c, and in such agreement, the State reserved the right to perform
its own sign installation and replacement.
The State was thus responsible for the accident site by virtue of its
- - which stemmed from its reconstruction project pursuant to the Highway Law.
As to the City of New York, the Court held that article XII-B did not relieve
the City of its obligation to keep the Henry Hudson Parkway, a highway within
its jurisdiction, safe.
In Gregorio, it was argued that a barrier design on the Bronx River
Parkway caused plaintiff's accident. The State had constructed the barrier in
question, having completed construction of the Bronx River Parkway in 1962. The
First Department found the City jointly responsible with the State, citing
In contrast to Gregorio and Nowlin, in the instant case, the
State did not construct or reconstruct Queens Boulevard at the site of Daniel
Freeman's accident, and it is only such activity which implicates responsibility
on the part of the State under article XII-B of the Highway Law. See,
e.g., Gibbs v State of New York, Ct Cl dated August 6, 1987
(motion no. M-36265, unreported, Rossetti, J.), pp. 6-7, in which it was stated
that article XII-B "gave the State the right to make improvements in the named
roadways, it did not transfer jurisdiction over them . . . [article XII-B] gave
the State the right to make design and construction improvements, it did not
mandate them." I cannot find, as claimants argue, that because the State
could have undertaken improvements on Queens Boulevard - - but failed to
do so - - liability should be imposed.
Accordingly, having reviewed the parties'
, IT IS ORDERED that motion no.
M-63057 be granted and claim no. 103690 be dismissed.