New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2007-029-041, Claim No. 113949, Motion No. M-73822


Synopsis


State’s motion to dismiss highway negligence claim, alleging it does not own or maintain the Bronx River Parkway, is denied. Affidavit of DOT engineer providing his conclusions, without submitting the maps and documents on which he relied, was without probative value.

Case Information

UID:
2007-029-041
Claimant(s):
PAUL A. WILLIAMS and GRACE WILLIAMS
Claimant short name:
WILLIAMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113949
Motion number(s):
M-73822
Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant’s attorney:
CAROL L. ABRAMS, ESQ.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Vincent Cascio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 3, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant’s pre-answer motion to dismiss the claim on the grounds that the court lacks subject matter jurisdiction and the claim fails to state a cause of action against the State.

The claim arises from an April 15, 2007 automobile accident in which claimant Paul A. Williams lost control of his vehicle while driving on the Bronx River Parkway in Yonkers and struck a tree, allegedly the result of a severely flooded roadway. The claim alleges negligence on the part of the State of New York in the design, construction and maintenance of the Parkway.

Defendant’s motion is based on an affidavit from an assistant resident engineer with the Department of Transportation in which he states that he is responsible for maintenance of roads in southern Westchester County, that he is familiar with the Bronx River Parkway in the subject area and that he has “considered maps and records of DOT” and has “determined” that the State does not own, operate, manage, maintain or control the Bronx River Parkway at the reference marker identified in the claim.

On a motion to dismiss pursuant to CPLR 3211, the challenged pleading is afforded a liberal construction, with the allegations accepted as true, other than factual allegations or legal conclusions that are contradicted by the record (Leon v Martinez, 84 NY2d 83, 87-88 [1994]; In re Loukoumi, Inc. 285 AD2d 595 [2d Dept 2001]; Doria v Masucci, 230 AD2d 764, 765 [2d Dept 1996]: “The facts pleaded are to be presumed to be true and are to be accorded every favorable inference, although bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration.”).

Here, defendant has not submitted the documentary evidence that allegedly supports the conclusion that it would have the court make; i.e., that there is no possibility that it had any responsibility for the conditions that allegedly led to the subject accident. An affidavit from a State employee stating that he has examined such evidence, and has determined that the State is not responsible, is not a substitute for submitting the evidence – the unidentified records and maps referred to in defendant’s papers – to the court for a judicial finding. It is the court’s role to examine evidentiary material and draw legal conclusions therefrom, not the role of defense counsel or a witness. Since the material relied upon by the State’s engineer was not provided to the court, his affidavit is without probative value. Additionally, he did not even address design and construction of the Parkway, only ownership operation, maintenance and control.

Accordingly, the motion is denied. Defendant shall serve and file its answer within 30 days of the filing date hereof.



October 3, 2007
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims


Papers considered:


1. Notice of Motion, Affirmation and Exhibits.

2. Affirmation in Opposition.

3. Reply Affirmation in Further Support.