New York State Court of Claims

New York State Court of Claims

SCHRAF v. THE STATE OF NEW YORK, #2005-031-022, Claim No. 109456, Motion No. M–69773


Negligence cause of action fails without actual or constructive notice of dangerous condition on highway. Defendant's motion to dismiss granted.

Case Information

KARIN P. SCHRAF The caption has been changed sua sponte to reflect the only proper Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been changed sua sponte to reflect the only proper Defendant.
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: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 13, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Defendant for dismissal on the grounds that the claim failed to state a cause of action (CPLR 3211(a)[7]) or, in the alternative, for summary judgment (CPLR 3212):
1. Defendant's Notice of Motion, filed February 23, 2005;
2. Affirmation of Thomas G. Ramsay, dated February 18, 2005, with attached exhibits; and
3. Affidavit of Karin P. Schraf, in opposition, sworn to March 14, 2005;
4. Affirmation of Thomas G. Ramsay, dated March 17, 2005, with attached exhibit;
5. Claimant's unsworn reply, dated March 21, 2005.

I heard oral argument on the motion on March 22, 2005. Both Assistant Attorney General Ramsay and Mrs. Schraf appeared. On March 16, 2004, Claimant's son was driving south on New York Route 15 (West Henrietta Road) in the Town of Henrietta in a car registered to Claimant. There was a snow storm in progress and visibility was poor. Claimant's papers state that the car her son was driving came to a violent and sudden stop just south of the Brighton Henrietta Townline Road intersection in the right hand lane. The Police Accident Report attached to the claim states that a "large rock" was in the middle of the lane and "wedged" underneath the car. Claimant states that her son did not see anything in the road prior to the accident.

The car was towed away and pronounced "totaled" by the collision shop. In the meantime, personnel from the Monroe County Sheriff's Department and the New York State Department of Transportation ("DOT") had the boulder moved from the roadway to the sidewalk where it remained for several days until it could be removed from the area (Severino Affidavit, Exhibit B). Claimant alleges that the Defendant failed to "adequately maintain Route 15" and that this failure led to her son's accident and the resulting property damage.

Defendant has answered and now moves to dismiss the claim, pursuant to CPLR 3211(a)(7), failure to state a cause of action, or in the alternative, pursuant to CPLR 3212, for summary judgment. Claimant has submitted responding papers and I heard oral argument on March 22, 2005.

There is no dispute that the large rock referenced in the police report is, in reality, a boulder 12 inches high and about 24 inches long. The Assistant Attorney General discussed the fact that it took three rather strong men to move the boulder from the road to the sidewalk. Claimant described the boulder as weighing approximately 500 pounds. Clearly, this is not something one would expect to find laying in the middle of Route 15. As certain as we are about the size of the boulder, we are bereft of certainty about how the boulder arrived at that location.

The positions of both Claimant and Defendant regarding the boulder are consistent inasmuch as both believe that it could not have been in the road for a long period of time. Defendant speculates that the rock dropped off the back of a truck (Severino Affidavit, Exhibit B.) Claimant speculates that a snowplow deposited it in the road. There is no dispute that Defendant became aware of the boulder only after the accident (Severino Affidavit, Exhibit B).

To most people, it is reasonable to postulate that the mere presence of the boulder in the highway means that someone did something wrong and that the injured party should be compensated for his or her loss. That legal theory is called res ipsa loquitur. To recover under such a theory, we must infer that the State was negligent. "Claimant must show that: 1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and 3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Dermatossian v NYC Transit Auth., 67 NY2d 219, 226" (Turchetti v State of New York, Ct Cl, May 21, 2002, [Claim No. 94813], Fitzpatrick, J., UID #2002-018-141.)

Although I agree with Claimant that this kind of thing would not ordinarily occur in the absence of someone's negligence and I do not believe that Claimant's son contributed in any way to the situation, res ipsa loquitur cannot apply in this matter because Route 15, a well-traveled, public highway, was not under Defendant's exclusive control. Not only is the snow removal function the responsibility of another municipality, but no DOT snowplows were plowing the highway the night of the accident (Severino Affidavit, Exhibit B). Moreover, there is no evidence that the instrumentality which caused the injury, the boulder, was ever under Defendant's control. Thus, Claimant is left with a cause of action for negligence.

The State, as landowner, owes a duty to maintain its property in a reasonably safe manner for the benefit of persons on the land. This duty is based on standard negligence principles (Basso v Miller, 40 NY2d 233). However, the mere fact that a dangerous condition exists does not automatically make the owner liable for injury caused by that condition. A property owner is not an insurer of the safety of those on the land (Barnaby v Rice, 75 AD2d 179 ). To establish a prima facie case of negligence, the Claimant must "demonstrate either that the defendants created the dangerous or defective condition which caused the accident, or that they had actual or constructive notice of the condition" (Dima v Breslin Realty, 240 AD2d 359, 360). Claimant has not alleged either actual or constructive notice and has offered no evidence, apart from speculation, that Defendant created the hazard. Claimant, therefore, cannot recover on the theory of negligence. Despite the circumstances and what appears to be an inherent unfairness, I must grant Defendant's motion to dismiss the claim.

Accordingly, it is

ORDERED, that Defendant's motion to dismiss the claim is granted. The Clerk of the Court is directed to close the file.

April 13, 2005
Rochester, New York

Judge of the Court of Claims