New York State Court of Claims

New York State Court of Claims

KAHM v. THE STATE OF NEW YORK, #2004-034-620, Claim No. 96407, Motion No. M-67703


Defendant's motion for summary judgment is granted. Claimant slipped and fell on a sidewalk in the Village of Springville. The Department of Transportation reconstructed the roadway adjacent to sidewalk four years previous. Claimant asserted that the Village had not properly accepted the project pursuant to Highway Law § 46. Technical deficiencies in acceptance did not render acceptance by Village void; therefore, responsibility for repair and maintenance reverted to the Village upon completion of the project.

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):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 27, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers have been submitted on Defendant's motion for summary judgment:

1. Claim, verified June 9, 1997, filed June 13, 1997;

2. Answer, verified July 15, 1997, filed July 16, 1997;

3. Notice of Motion, dated November 21, 2003, filed November 24, 2003;

4. Affidavit of Richard B. Friedfertig, sworn to November 21, 2003, with attached exhibits;

5. Affidavit in Opposition to Defendant's Motion for Summary Judgment of Leonard D. Zaccagnino, sworn to December 8, 2003, filed December 12, 2003, with attached exhibits;

6. Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated December 8, 2003.

For reasons that follow I must grant the requested relief.

This is a claim to recover for injuries allegedly sustained in the late morning of April 22, 1997, in a fall on a sidewalk area along East Main Street (Route 39) in the Village of Springville. At that time Claimant, the owner of a pet store at 63 East Main Street, was in the process of washing a log that he used as an animal perch in his business. As he cleaned the log he stood within a narrow strip of brick pavers located between the curb of the roadway and a five-foot width of concrete that adjoined the stores and other properties located along that route. Mr. Kahm contends that at one point he stepped backward and felt his right foot cause a paver to become unstable and sink. He moved his left foot back to preserve his balance, but instead tripped as his foot came into contact with the end of that same brick, which had become elevated above ground level. Claimant alleges that he then fell, sustaining serious injury.

It is Claimant's position that Defendant is liable for the condition of the brick walkway by reason of its reconstruction of State Route 39 through the Village between 1989 and 1993. The State had retained Accadia Enterprises, Inc. to perform the project, which included the installation of paving bricks in what were characterized as snow storage areas immediately adjoining the curbs of the roadway itself, as well as the replacement/addition of sidewalks on each side of the roadway along a strip beyond the pavers. In support of his position Claimant also has relied upon assertions of Robert Lux (also known as Karl Lux), the Village of Springville Superintendent of Public Works since June of 1992 (see Friedfertig Affidavit, Exhibit I [Lux deposition, pp. 9-10, 15-16, 46-48]; Zaccagnino Affidavit, Exhibit K). Mr. Lux has represented that since the brick walkway and sidewalk are owned by the State, that entity would bear maintenance responsibilities for those areas, notwithstanding the Village's history of snow removal activities along those walkways. However, and notwithstanding the State's control of the construction of the sidewalk and snow storage areas, as a matter of law all responsibility for those improvements following the State's acceptance of the project must be deemed to have rested with the Village, and not the State. Highway Law § 46, in relevant part, provides as follows:
After the completion and acceptance of the work of constructing, reconstructing or improving of a state highway passing through a village, the state shall maintain and have jurisdiction over the pavement area of such highway and may assume maintenance responsibility and have jurisdiction over such other highway right of way areas as the commissioner of transportation shall determine, by official order, are necessary for the maintenance and protection of such highway facility. No additional points of access to, or exit from, such highway facility shall be made without prior written approval by the commissioner of transportation. Any sidewalks, sewers,, [sic] water mains, curbs, paved gutters, conduits, facilities and appurtenances that are provided pursuant to this section, shall be maintained or shall be continued to be maintained, as the case may be, by the village in which they are located, or by the agency or other unit owning or having control and jurisdiction thereof except the state shall maintain any drainage ditches and storm sewer facilities which are constructed primarily to service the state highway facility.
Without question the project was completed in September 1993, and formally accepted by the State as of November 19, 1993 (see Friedfertig Affidavit, Exhibit F [letter of November 26, 1993 from State of New York Department of Transportation (DOT) to Accadia Enterprises, Inc.]). The State tendered notice of its acceptance to the Village on December 1, 1993 (see Friedfertig Affidavit, Exhibit F [letter of December 1, 1993 from DOT to Village Clerk Gail M. Riggs]). That clear acceptance of the project by the State gave rise to a duty on the part of the Village under section 46 to maintain the right-of-way areas beyond the pavement itself. Since that duty is established by statute, proof regarding the State's ownership of the right-of-way, or its role in constructing the snow storage and sidewalk areas, or any opinions based thereon by a Village representative, cannot work to defeat summary judgment.

Claimant also contends that a question of fact exists concerning the Village's opportunity to protest or accept the project. The Village appears to have paid some minor portion of the cost of the reconstruction project, such that under Highway Law § 46
[u]pon the completion of a highway within a village where a portion of the cost is borne by the village, the commissioner of transportation shall transmit to the board of trustees a statement showing the actual costs of the additional width or changed construction including a proportionate charge for engineering, and shall notify the village clerk that he will accept the work within twenty days from the date of such notice, unless protest in writing against the acceptance shall be filed by such clerk with the commissioner of transportation. In the event a protest is filed, the commissioner of transportation shall hear the same and if it is sustained the commissioner of transportation shall delay the acceptance of the highway or section thereof until the same be properly completed. If no protest is filed, the highway or section thereof shall at the expiration of the said twenty days be deemed finally completed and accepted on behalf of the village and the state, and shall thereafter be maintained in the manner provided in this chapter for the maintenance and repair of state highways.
Claimant notes that the notice of acceptance tendered by the DOT to the Village Clerk on December 1, 1993, reflected a completed act, and did not advise the Village of a twenty-day period for protest. Similarly, the record does not address any accounting by the DOT to the Village trustees. In Claimant's view the lack of evidence of full compliance with the protest notice and related obligations renders the State's acceptance arguably defective.

I do not see those irregularities as rendering the State's acceptance invalid, since the Village Clerk did receive actual notice of the State's acceptance of the completed project, and failed to protest despite her knowledge that the Village would have some voice in the acceptance process (see Zaccagnino Affidavit, Exhibit O [letter of June 24, 1993 from Village Clerk to DOT requesting that section of sidewalk be replaced to contract standards, "[s]ince the Village of Springville has not yet accepted the project work," and anticipating later acceptance by the Village Board of Trustees]). It has been recognized that where actual notice is given, deficiencies in a governmental entity's compliance with a statutory notice provision do not render proceedings based thereon void (compare Bartholomay v Zoning Bd. of Appeals of City of Rochester, 70 AD2d 784 [1979] [where interested parties received actual notice of zoning matter, action of municipal zoning board sustained despite irregularities]; Matter of Cipperley v Town of East Greenbush, 213 AD2d 933 [1995] [failure to notify adjoining municipalities of proposed zoning amendment as required under Town Law rendered amendment void, in absence of evidence of actual notice]). Laches may also be a factor, where actual notice or knowledge exists (cf. Matter of Kuhn v Town of Johnstown, 248 AD2d 828, 830-831 [1998] [laches not bar to challenge where notice of rezoning not provided, prompt action taken upon discovery, and substantial prejudice not shown]). In my view, the State's December 1, 1993 notice to a Village official familiar with the acceptance process constituted substantial compliance with Highway Law § 46 even without the twenty-day protest provision, particularly where the record supports prior contact between the State and Village on the issue, and the Village did not act to challenge the notice in the years that followed. Further, any failure to provide an accounting for additional costs payable by the Village is unrelated to the acceptance provisions, and the maintenance obligations that result therefrom.

Lastly, I note that no Village official has ever taken the position that the acceptance process was flawed, and that the State was responsible for maintenance of the brick pavers and sidewalk as a result.

Although Mr. Lux believed that the State was responsible for sidewalk and paver maintenance by reason of its ownership and construction activities, the Village clearly had notice of Highway Law § 46 and the maintenance obligations set forth therein for years prior to the incident. The December 1, 1993 notice of acceptance advised of the municipality's maintenance obligations. Critically, the Village Board of Trustees formally adopted a sidewalk maintenance resolution with the State, based in part on section 46 in its meeting of November 19, 1990 (see Friedfertig Affidavit, Exhibit E [Resolution]). Since section 46 provides that the State would only undertake responsibility for maintenance along the right-of-way as part of an "official order" by the Commissioner of Transportation, any assertion that the State had voluntarily assumed general maintenance duties based upon DOT responses to requests by Mr. Lux are not sustainable. In that regard I also note that the statute allocates some storm drainage maintenance duties to the State, such that the DOT's conduct at the site could not fairly be viewed as an assumption of the Village's statutory maintenance responsibilities even in the absence of the "official order" requirement.

To the extent Defendant also has urged that summary judgment is warranted on the basis of the open and obvious nature of the condition of the walkway, relief will be denied. In reviewing a motion for summary judgment I must weigh all evidence in a light most favorable to the nonmoving party (see Rotuba Extruders, Inc. v Ceppos, 46 NY 2d 223, 231 [1978]). Here, Mr. Kahm contends that the incident occurred when a paver sank and became unstable as he stepped on it, a description that calls into question whether the paver would have appeared dangerous as he first approached the area. Moreover, even if the condition of the bricks had been open and obvious, that factor would be relevant to the issue of Claimant's comparative negligence, but would not negate a duty to maintain a premises in a reasonably safe condition (see Morgan v Genrich, 239 AD2d 919, 920 [1997] [readily observable icy condition in parking lot did not negate landowner's duty to keep premises reasonably safe]).

Based upon the above the State's motion for summary judgment is granted to the extent premised on Highway Law § 46, but denied to the extent based upon the alleged open and obvious nature of the condition. The Clerk of the Court is hereby directed to close the file.

December 27, 2004
Buffalo, New York

Judge of the Court of Claims