LYNCH v. THE STATE OF NEW YORK, #2005-033-549, Claim No. 105839
CORNELIUS LYNCH, JR. and HELEN LYNCH
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
James J. Lack
Elovich & AdellBy: Glenn L. Sabele, Esq.
Eliot Spitzer, New York State Attorney
GeneralBy: Gail P. Pierce-Siponen, Assistant Attorney General and Diana Dykes, Assistant Attorney General
September 23, 2005
See also (multicaptioned
This claim arises from the injuries to Cornelius Lynch, Jr. (hereinafter
"claimant") due to the alleged negligence of the State of New York (hereinafter
“State”). The claim is based upon the State’s failure to
protect claimant in that the State negligently secured an accident site. The
claim of Helen Lynch is derivative in nature. The trial of this claim was
bifurcated and this decision pertains solely to the issue of liability.
While some discrepancies exist in the details of the circumstances of the
accident that led to claimant’s injury, the general facts as to the
incident are not in dispute. The claim arose on October 19, 2001, at
approximately 11:15 p.m. on the eastbound side of the Southern State
near Exit 20N. Prior to this time, a motorist, Orimoloye Adeniran (hereinafter
“Bode”), was driving eastbound on the Southern State Parkway. His
vehicle was struck by another vehicle from behind and Bode’s vehicle spun
around and came to rest on the center median, resting against the guardrail and
facing westbound. New York State Trooper Suzanne Guacci (hereinafter
“Tpr. Guacci”) responded to the accident. Tpr. Guacci parked her
vehicle on the center median west of Bode’s vehicle facing eastbound.
According to Tpr. Guacci, she kept her headlights on and turned on her roof
lights and waggle lights. In addition to Bode, other civilians were standing on
the center median. These people had witnessed the accident, pulled their
vehicles onto the eastbound shoulder of the Southern State Parkway and then ran
across to check on Bode.
Claimant worked for Ogden Brothers Towing and
Collision (hereinafter “Ogden”) at the time of the accident. Ogden
had a contract with the State for towing vehicles on this portion of the
Southern State Parkway. Claimant heard the call about the accident on his
police scanner and responded to the scene. Eventually, claimant pulled his tow
truck in front of Bode’s vehicle, facing westbound on the eastbound
portion of the Southern State Parkway.
In response to a request from Tpr.
Guacci, another trooper, Tpr. Burroughs responded to the accident scene.
Initially, he parked his vehicle by Tpr. Guacci’s vehicle on the center
median. Out of concern for the safety of the civilians on the center median,
Tpr. Burroughs transported the civilians to the eastbound shoulder of the
Southern State Parkway.
During this time, the traffic on the Southern
State Parkway was still passing. The speed limit on this road is 55 m.p.h.
According to witness statements, there are varying accounts of the traffic
volume. Some of the witnesses described it as light to normal, while others
described it as normal to heavy. Danielle Virgil (hereinafter
“Virgil”) was operating a motor vehicle in an eastbound direction on
the Southern State Parkway. At or about the accident scene, the vehicle in
front of Virgil applied his brakes. Virgil testified that she applied her
brakes hard. Virgil lost control of her vehicle, sending it toward the center
median. Virgil’s vehicle hit the tow truck into the guardrail. Claimant
and Tpr. Guacci were injured as a result of this second accident.
testified that he had conversations with Tpr. Guacci before moving his truck
from the shoulder to the center median. He further testified that traffic was
stopped for him when he moved to the center median. Claimant indicated that he
waited to begin hooking up Bode’s vehicle until Tpr. Guacci told him it
was okay to hook up the car.
Tpr. Guacci claims that she did not call for
a tow truck and did not have any conversation with claimant prior to the second
In the ownership of property, the State of New York serves two
functions. The first role casts the State in a proprietary function and the
other role is that of a governmental function (Miller v State of New
, 62 NY2d 506). The functions are not mutually exclusive. Instead, the
functions are opposite ends of a continuum (id
A governmental entity's conduct may fall along a continuum of responsibility to
individuals and society deriving from its governmental and proprietary
functions. This begins with the simplest matters directly concerning a piece of
property for which the entity acting as landlord has a certain duty of care, for
example, the repair of steps or the maintenance of doors in an apartment
building. The spectrum extends gradually out to more complex measures of safety
and security for a greater area and populace, whereupon the actions
increasingly, and at a certain point only, involve governmental functions, for
example, the maintenance of general police and fire protection. Consequently,
any issue relating to the safety or security of an individual claimant must be
carefully scrutinized to determine the point along the continuum that the
State's alleged negligent action falls into, either a proprietary or
governmental category. (id at 511 - 512).
In regard to its proprietary function, “the State
‘must act as a reasonable man in maintaining his property in a reasonably
safe condition in view of all the circumstances, including the likelihood of
injury to others, the seriousness of the injury, and the burden of avoiding the
risk’ (Basso v Miller, 40 NY2d 233, 241, quoting Smith v
Arbaugh’s Rest., 469 F2d 97, 100)” (Preston v State of New
York, 59 NY2d 997, 998). The State’s proprietary function subjects it
to the same rules of liability as apply to a private citizen.
On the other
end of the continuum, is the State’s governmental function. The State
“remains immune from negligence claims arising out of governmental
functions such as police protection unless a special relationship with a person
creates a specific duty to protect, and that person relies on performance of
that duty” (Price v New York City Hous. Auth., 92 NY2d 553, 557 -
In Pelaez v Seide, 2 NY3d 186, 199-200 the Court of Appeals
[a] special relationship can be formed in three ways: (1) when the municipality
violates a statutory duty enacted for the benefit of a particular class of
persons; (2) when it voluntarily assumes a duty that generates justifiable
reliance by the person who benefits from the duty; or (3) when the municipality
assumes positive direction or control in the face of a known, blatant and
dangerous safety violation (see [Garrett v Holiday Inns, 58 NY2d
253], 261-262). None apply here.
Previously, defendant had moved for summary judgment
(M-68664). As part of that decision, the Court found that Tpr. Guacci was
involved in a governmental function, in responding to the accident and handling
the accident scene. The Court finds no reason to disturb this prior finding.
Case law is replete with findings that officers are engaged in a governmental
function in responding to accidents.
A municipality cannot be held liable
for negligent acts in the performance of governmental functions unless a special
relationship exists between the injured party and the municipality (Cuffy v
City of New York
, 69 NY2d 255). Claimant argues that the Court’s
prior finding of a special relationship (M-68664) is the law of the case and
argues that this point is settled. Defendant argues that claimant has failed to
prove the special relationship and asks the Court to consider cases decided by
the Court of Appeals subsequent to this Court’s summary judgment decision
in this matter (see Kovit v Estate of Hallums
, 4 NY3d
). The Court notes that neither of these cases is on point to the situation
presented here: whether or not a tow truck driver, with a contract to tow
vehicles on a restricted access highway, has a special relationship with the
State of New York.
The Court, however, finds the dispositive answer to this
matter in the State’s proprietary function, that of maintaining the
roadways. To this end, the Court takes judicial notice of the laws of the State
of New York and the New York Code of Rules and Regulations. The Commissioner of
the Department of Transportation is empowered to make rules and regulations as
may be necessary to secure the safety of the various roadways within the state
system. Such power includes the ability to limit the access of certain classes
of vehicles upon restricted access parkways (Transportation Law §14;
Highway Law §§10 & 14; Vehicle and Traffic Law §§1621;
1625 & 1630).
The Department of Transportation has promulgated rules
and regulations governing access of tow trucks on parkways in Nassau and Suffolk
(17 NYCRR Part 190). In order to operate a tow truck upon the Southern State
Parkway, the operator or his employer, must have a contract authorizing the
truck to operate in a designated area of the parkway (17 NYCRR §190.1).
The parties agree that claimant was authorized by contract to operate the tow
truck in the area of the accident on the date of the accident. In relevant
part, 17 NYCRR §190.9 states
The contractor shall assume all responsibility and liability for damages to
persons or property that may accrue during the operation of any of contractor's
vehicles on the parkway through the negligence of itself, its agent, employees,
or from any other cause, and agrees to hold harmless the State of New York, the
parkway authority or other authority under whose jurisdiction the parkway lies,
and the employees of these agencies.
At trial, claimant testified that he was present on the
parkway to remove Bode’s vehicle. While it could be arguable as to what
“during the operation of any of contractor's vehicles . . .” means,
there can be no argument in the instant matter. At the time of the accident,
claimant had just finished with controls inside the truck to hook up
Bode’s vehicle and was walking toward the rear of the truck. It is clear
that claimant was engaged in the operation of the tow truck.
grants defendant’s motion to dismiss at the close of claimant’s
case. Claimant’s remedy is to seek compensation through his
employer’s insurance. The State, in its proprietary function, envisioned
the instant circumstances and immunized itself through statute and contract.
Based upon the foregoing, defendant’s motion to dismiss is granted. The
Clerk of the Court is directed to enter judgment accordingly.
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of
.The Southern State Parkway is a major
east/west restricted highway on the south shore of Long Island.
.A second action was considered by the Court
of Appeals with this matter, the case of Lazan v County of Suffolk
.The accident site is located in Nassau
County, New York.