New York State Court of Claims

New York State Court of Claims

BOTZAKIS AND PAMPAFIKOS v. THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2005-016-041, Claim Nos. 98569, 98570, 98571, Motion No. M-69463


Synopsis



Case Information

UID:
2005-016-041
Claimant(s):
VIRGINIA BOTZAKIS and VIRGINIA PAMPAFIKOS
Claimant short name:
BOTZAKIS AND PAMPAFIKOS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98569, 98570, 98571
Motion number(s):
M-69463
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Barry Siskin, Esq.
Defendant's attorney:
Cohen, Kuhn & AssociatesBy: Gary P. Asher, Esq.
Third-party defendant's attorney:

Signature date:
June 9, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendants' motion to dismiss the claims of Virginia Botzakis and Virginia Pampafikos solely on the basis of City of New York v State of New York, 98 NY2d 740, 750 NYS2d 819 (2002). In such claims, it is alleged that on February 10, 1996, Ms. Botzakis' vehicle, in which Ms. Pampafikos was a passenger, was struck by a rolling manhole cover on the Major Deegan Expressway, at or near its intersection with Fordham Road in the Bronx. 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 "transferred" to the City, although the State retains responsibility for maintenance and repair. See subdivisions 7-9 of §349-c.[1]

It is undisputed that §349-f of the Highway Law lists the Major Deegan expressway at the site of this accident as a New York City route governed by article XII-B. However, neither party has submitted any evidence as to whether any construction or reconstruction of the accident site was performed by the State so as to implicate maintenance responsibility.[2]

If the State did in fact perform such work so as to implicate maintenance responsibility, such responsibility could be assumed by the City of New York pursuant to a maintenance agreement, in which case, the State is not answerable. See City of New York v State of New York, 98 NY2d 740, 750 NYS2d 819 (2002). In this case, no such maintenance agreement has been submitted or even detailed by either party, and all that has been submitted on this point is the City of New York's "Response to Notice to Admit" in a related Supreme Court action, in which the City admits it "has an agreement for maintenance and repair of portions of the Major Deegan Expressway pursuant to Section 349-c of the Highway Law." See exhibit C to claimants' opposition papers. Whether such maintenance agreement covers the portion of roadway on which this accident occurred remains unresolved based upon what has been submitted on this motion.

Accordingly, having reviewed the submissions[3], IT IS ORDERED that motion no. M-69463 be denied.

June 9, 2005
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]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.
  1. [2]If no such work had been done by the State of New York, no potential liability could be implicated to it. See, e.g., Rukaj v State of New York, Ct Cl September 17, 2004 (claim no. 104193, motion no. M-63570, unreported, Marin, J., UID #2004-016-056). (This and other decisions of the Court of Claims may be found on the Court's website: )
  2. [3]The Court reviewed defendants' notice of motion with affirmation in support and exhibits A through C; and claimants' "Affirmation in Partial Opposition" with exhibits A through C.