The underlying claim in this case arises from an April 28, 2000 accident at the
intersection of the Mosholu Parkway and Van Cortlandt Avenue in the Bronx, in
which Gjoka Rukaj's car was struck by another car because of an alleged
"malfunctioning traffic control device" at the intersection.
This is defendant's 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. 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 "Mosholu parkway
from Henry Hudson parkway to Bronx river parkway"as a New York city route
governed by article XII-B, and that Mr. Rukaj's accident occurred on such
portion of the Mosholu.
Defendant maintains that there is no nexus between the State and the site of
Rukaj's accident because the State did not construct the Mosholu Parkway at the
site of the accident, nor has it done any projects 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, and his review showed two State
construction projects on the Mosholu, but not at the site of Rukaj's accident:
(1) The State had designed and constructed the portion of the Mosholu that runs
from Gunhill Road to the Henry Hudson Parkway (which does not contain the
location of this accident); and (2) the State had constructed a bicycle path
next to the Mosholu. Khalil further states that the State does not own,
operate, maintain or control the traffic lights at the intersection where the
accident occurred. See the August 2, 2001 reply affidavit of Osama Khalil,
attached to defendant's reply papers.
Claimants have submitted nothing to dispute Khalil's contention that the State
did not construct or reconstruct the accident site or have any involvement with
the traffic control device at issue.
Moreover, as set forth above, even if the State had done any such construction
or reconstruction, in order for it to retain maintenance responsibility, an
order would have to have been issued and filed pursuant to §349-d of the
Highway Law, and claimants have failed to submit any such order.
Finally, claimants' assertion that there is joint responsibility of the City
and State pursuant to Gregorio v City of New York, 246 AD2d 275, 677
NYS2d 199 (1st Dept 1998) is misplaced. In that case, it was argued that a
barrier design on the Bronx River Parkway caused plaintiff's accident. The
State was responsible because it had constructed the barrier in question. The
First Department found the City jointly responsible, citing Nowlin v City of
New York, 81 NY2d 81, 595 NYS2d 927 (1993), in which the Court of Appeals
had held that article XII-B of the Highway Law did not relieve the City of its
obligation to keep a highway within its jurisdiction safe. In contrast to
Gregorio, where the State actually constructed the barrier at issue, in
the instant case, there is no indication of any State involvement.
It is construction and reconstruction activity under article XII-B of the
Highway Law which implicates responsibility. See, e.g., Nowlin,
supra. See also 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."
Accordingly, having reviewed the parties'
, IT IS ORDERED that motion no.
M-63570 be granted and claim no. 104193 be dismissed.