New York State Court of Claims

New York State Court of Claims

SILER v. THE STATE OF NEW YORK, #2004-033-059, Claim No. 106121, Motion No. M-67984


Synopsis



Case Information

UID:
2004-033-059
Claimant(s):
ROBERT SILER and PAULETTE SILER
Claimant short name:
SILER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106121
Motion number(s):
M-67984
Cross-motion number(s):

Judge:
James J. Lack
Claimant's attorney:
Riconda & Garnett, LLPBy: John Riconda, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Esq.
Third-party defendant's attorney:

Signature date:
June 24, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arises from the injuries sustained by Robert Siler (hereinafter "claimant") as the result of the alleged negligence of the defendant, the State of New York, in failing to adequately maintain the Southern State Parkway, near Central Avenue/Linden Blvd. The accident occurred on January 23, 2002. The claim of Paulette Siler is derivative in nature.
The claimant moves this Court for an order compelling defendant to comply with its Notice for Discovery and Inspection[1]. Claimant is seeking the results of any "friction tests" performed in the location of the accident. In addition, claimant is seeking drainage records for the subject area, and any records pertaining to resurfacing of the subject roadway.

In response to claimant's request for discovery and inspection, the claims officer of the New York State Department of Transportation sent a letter to claimant's counsel. The letter indicated no records pertaining to drainage were found for the time period requested by the claimant. The letter identifies a resurfacing project that was let in March 1999. As to the friction test, the claims officer declined to provide any material pursuant to 23 USC §409.

The language of 23 USC §409 states the following:
[n]otwithstanding any other provision of law, reports, surveys, schedules, lists, or data compiled or collected for the purpose of identifying evaluating, or planning the safety enhancement of potential accident sites, hazardous roadway conditions, or railway-highway crossings, pursuant to sections 130, 144, and 152 of this title or for the purpose of developing any highway safety construction improvement project which may be implemented utilizing Federal-aid highway funds shall not be subject to discovery or admitted into evidence in a Federal or State court proceeding or considered for other purposes in any action for damages arising from any occurrence at a location mentioned or addressed in such reports, surveys, schedules, lists, or data.

(emphasis added).

In Coniker v State of New York, 181 Misc 2d 801, claimant sought materials related to safety evaluations of the accident area. Claimant had been caused to skid and hydroplane over a section of roadway and into the path of another vehicle. The court denied claimant's motion to compel discovery holding that 23 USC §409 prohibited such disclosure.

This Court agrees that a reading of 23 USC §409 is unequivocal in its mandate. The disclosure of the friction tests that claimant seeks is denied.

As to the remaining items that claimant seeks, the Court finds that defendant has sufficiently answered the claimant's request. Claimant shall have thirty days from the filing date of this decision and order to conduct his own search of New York State Department of Transportation's records as to the resurfacing and drainage requests.[2]

Based upon the foregoing, claimant's motion to compel discovery of the friction tests is denied. Claimant shall, within 30 days of the filing date of this decision and order, conduct his own search of New York State Department of Transportation's records as to the resurfacing and drainage requests.


June 24, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]The following papers have been read and considered on claimant's Motion to Compel Discovery: Notice of Motion to Compel Discovery dated January 30, 2004 and filed February 2, 2004; Affirmation of John Riconda, Esq., in Support of claimant's motion with annexed Exhibits A-D dated January 30, 2004 and filed February 2, 2004; Affirmation in Opposition to Claimant's Motion of John M. Shields, Esq. with annexed Exhibits A-B dated February 18, 2004 and filed February 26, 2004; Reply to Affirmation in Opposition of John Riconda, Esq. dated March 3, 2004 and filed March 4, 2004.
[2]The Court has previously ordered claimant to conduct his own discovery and inspection of the New York State Department of Transportation records. Specifically, the Court ordered claimant to conduct the discovery and inspection, as noted in the Court's Daily Reports, on February 27, 2003, May 7, 2003 and July 10, 2003.