New York State Court of Claims

New York State Court of Claims

McCORMICK v. STATE OF NEW YORK and NEW YORK STATE DEPARTMENT OF TRANSPORTATION, #2004-016-055, Claim No. 103690, Motion No. M-63057


Claim arising from fatal accident where pedestrian was struck by cars while crossing Queens Boulevard was dismissed because the City of New York and not the State of New York was responsible for the roadway in question.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Schwartzapfel, Novick, Truhowsky & Marcus, P.C.By: Robert B. Marcus, Esq. and Lawrence A. Wilson, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Susan J. Pogoda, Esq., AAG and Gail P. Pierce-Siponen, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 17, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)


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 Boulevard.

In Nowlin, 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.[1] The State was thus responsible for the accident site by virtue of its maintenance responsibilities

- - 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 Nowlin.

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' submissions[2], IT IS ORDERED that motion no. M-63057 be granted and claim no. 103690 be dismissed.

September 17, 2004
New York, New York

Judge of the Court of Claims

  1. [1]It was alleged in Nowlin that a lack of warning signs caused plaintiff's accident.
  2. [2]The following were reviewed: defendants' February 2, 2001 notice of motion with affirmation in support and exhibits A and B; claimants' February 28, 2001 affirmation in opposition with exhibit A; defendants' April 5, 2001 reply affirmation; claimants' October 31, 2003 affirmation with exhibits A-D; defendant's November 4, 2003 affirmation with undesignated attachments; and claimants' May 20, 2004 memorandum of law with affirmation in support and exhibits A-L.