New York State Court of Claims

New York State Court of Claims

TORRES v. THE STATE OF NEW YORK, #2004-030-940, Claim No. 109679, Motion No. M-69093


Synopsis


Motion to dismiss granted - State not responsible for sidewalk where claimant fell.

Case Information

UID:
2004-030-940
Claimant(s):
GLORIA TORRES
Claimant short name:
TORRES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109679
Motion number(s):
M-69093
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
Dominick W. Lavelle, Esq.by Heather Wurman, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 6, 2004
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 to dismiss the claim: Notice of Motion, Affirmation and Exhibits; Affirmation in Opposition and Exhibit; Reply Affirmation and Exhibits.

Claimant alleges that she fell on a cracked and broken sidewalk located on an island in the intersection of Jamaica Avenue and 238th Street in Queens on May 4, 2004. Defendant alleges, with support from a civil engineer with the state's Department of Transportation, New York City Regional Office, that the subject location was not owned or operated by the state, that the state had no maintenance responsibility and that there were no state construction contracts in effect at this location.

In response, claimant submits the results of a search indicating that "Jericho Turnpike is a state road running from Nassau County and continues to be a state road on the Nassau/Queens county border and remains a state road running through Queens county (sic) into Manhattan." What claimant's exhibit in fact indicates is that State Route 25 is known as Jericho Turnpike in Nassau County and then continues westward, at the Queens/Nassau border, along Braddock Avenue and then along Hillside Avenue. This conforms exactly to what is alleged by defendant's engineer. There is no mention of Jamaica Avenue in claimant's search. Thus, claimant's proof supports defendant's contention that Jamaica Avenue is not a state road. The fact that Jericho Turnpike in Nassau County is a state road is totally irrelevant. The record before the court presents no need for depositions or any other disclosure in order to determine whether the state had any responsibility for the accident site in question; rather, all of the evidence submitted by both parties is consistent in indicating that the state has no such responsibility.

Accordingly, the motion is granted and the claim is dismissed for failure to state a cause of action against the State of New York.

December 6, 2004
White Plains, New York

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