New York State Court of Claims

New York State Court of Claims

FARRELL v. THE STATE OF NEW YORK, #2007-030-548, Claim No. 107707, Motion No. M-73049


Claimant’s (second) motion to vacate default and restore claim granted. Counsel has established that there is a meritorious claim and based on claimant’s counsel’s inexcusable conduct sanctions are imposed. Dismissal vacated and claim restored upon the claimant’s law firm forwarding to the Chief Clerk of the Court of Claims within 30 days of the filing date of this decision and order, a check in the sum of$2,500.00 payable to the Lawyers’ Fund for Client Protection of the State of New York, said sum to be paid by the law firm personally and not to be charged to or reimbursed by claimant under any circumstances. Expedited discovery schedule directed.

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:
Third-party defendant’s attorney:

Signature date:
August 27, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on Claimant’s “revised” motion to vacate

her default and to reinstate her claim:

1,2 Revised Notice of Motion to Vacate Default, Affirmation in Support of Motion by Johanna C. Abreu of Roura & Melamed, Attorneys for Claimant, dated March 7, 2007 and attached exhibits

  1. Affirmation in Opposition by Robert D. Martin, of Kral, Clerkin, Redmond, Ryan, Perry & Girvan, Attorneys for Defendant, dated April 25, 2007 and attached exhibits
4-7 Filed papers: Claim, Answer; Order of Dismissal, Farrell v State of New York, Claim No. 107707 (October 20, 2005, Scuccimarra, J.); Decision and Order, Farrell v State of New York, UID# 2007-030-505, Claim No. 107707, Motion No. M-72307 (January 22, 2007, Scuccimarra, J.)

In her claim Janine Farrell alleges that on May 15, 2002 at approximately 6:20 a.m. she was driving her vehicle in one of two Manhattan bound High Occupancy Vehicle [HOV] lanes entering on the Gowanus Parkway approximately 1500 feet from the toll booths of the Brooklyn Battery Tunnel when a metal object was propelled up from the roadway by another vehicle traveling in front of her, striking and breaking the windshield of her car, and hitting Claimant in the face, ultimately rendering her unconscious. [Claim No. 101107, ¶¶ 3, 4]. She further alleges that she sustained serious personal injuries.

The procedural history of this claim was set forth in detail in this Court’s prior decision and order denying Claimant’s application to vacate her default of May, 2005 and to restore her claim, and is incorporated herein by reference. [See Decision and Order, Farrell v State of New York, UID#2007-030-505, Claim No. 107707, Motion No. M-72307 (January 22, 2007, Scuccimarra, J.)]. This earlier decision also reminded counsel for Claimant that arguments should more properly be addressed to whether vacatur of this Court’s October 20, 2005 Order of Dismissal is warranted, based upon a consideration of whether there is a justifiable excuse for the default, and whether the Claimant has a meritorious cause of action. Clearly, no excuse other than inattention to pursuing this claim is offered. Counsel acknowledges - as she did in her earlier motion to vacate Claimant’s default - that she did not pay attention to the discovery schedule surrounding this claim, correspondence from the court directing her to resume prosecution, and the October 20, 2005 dismissal Order itself. Indeed, it was not until almost one (1) year later that she brought the initial motion to vacate the default and restore the claim.

In the earlier decision of this court, almost a blueprint for what might persuade this court of the second requirement for vacating a default - a meritorious cause of action - was set forth when the court denied the motion to vacate Claimant’s default “without prejudice to a timely and properly supported application for same.” The court said therein:
“In terms of merit, what has Claimant offered to establish that the State should be held liable for her injuries? . . . In terms of Claimant’s showing . . . first, although State responsibility for the maintenance of arterial highways within the City of New York is generally shared pursuant to Highway Law §§349-c, 349-f, neither attorney has even brought the statutes up or indicated whether they are indeed applicable or not. Second, no copy of the contract by which the State supposedly contracted with Grace Industries Inc. and/or El Sol for the renovation work on the bridge nearby has been submitted by Claimant. Only partial transcripts of depositions taken in the Supreme Court action have been submitted, with a notable lack of pedigree information in one deposition . . . and the only mention of the State of New York in the deposition testimony of an employee of the construction contractor, wherein he repeats that the State inspector was there every day to review the daily status of the opening and closing of the HOV lane, and to direct whether things needed to be cleaned up . . . , and in the deposition testimony of the individual whose employer was unidentified . . . [Sherry Johnson] . . . Claimant herself does not recall much of the accident according to the (again) partial transcripts of the 50-H hearing and the deposition taken without the State present . . . Finally, while attesting to a willingness to have a monetary sanction now imposed for the inattention, Claimant does not provide any indication of a willingness to now file a note of issue, or exactly what discovery, if any, is needed at this juncture to pursue this Claim, and have it heard on the merits.”

A review of the present application, as compared to the application made earlier, shows that the affirmation in support by counsel for the Claimant has been altered by adding one additional paragraph, namely the following:
“30. If the within motion is granted the Claimant can and will place the case on the trial calendar upon completion of the deposition of Philip Salerno, the State engineer who signed off on the work permit, or if necessary, a person with supervisory authority over the conditions of the roadway at the time of the accident. Attached as Exhibit ‘D’ is the work permit.”

In terms of any new evidentiary submissions as suggested in the court’s prior decision and order Claimant’s counsel has now included complete copies of the deposition transcripts supplied earlier, namely the deposition of Claimant taken on June 17, 2004 [Exhibit A], as well as Ms. Farrell’s examination pursuant to General Municipal Law §50 (h) on January 22, 2003 [Exhibit E]; the deposition of Sherry Johnson taken on August 23, 2004 including the pedigree testimony which suggests that she is a New York State Department of Transportation employee - although it is still unclear who her employer is - and the caption which indicates that same was taken ostensibly pursuant to this claim in addition to the state supreme court action, [Exhibit B]; and the deposition of Michael Madden, an employee of the contractor hired by the State of New York, taken on August 24, 2004 [Exhibit C]. Other documents are submitted in addition to those submitted in the earlier motion practice, including some of the permits regarding the work.

In opposition to the present motion, the State of New York notes the continued absence of a reasonable excuse for the failure on Claimant’s part to respond or react to any directives from the court, or to respond or react to discovery requests by the State of New York - including the request for notice of the aforesaid depositions - and to indicate with specificity exactly what timetable for conducting discovery or responding to any State demands is anticipated by Claimant’s attorney, were the matter to be restored almost two (2) years after its dismissal, and more than five (5) years after the happening of the accident. It is noted that the Claimant did not append the pleadings to this application as required, was not prohibited from proceeding with discovery on this claim despite whatever stay was extant for a period in the bankruptcy court concerning Grace Industries [see Exhibit L], did not give the State any notice of inspection of the brake shoe, and has done nothing but serve and file a claim and a verified bill of particulars with regard to this lawsuit commenced against the State of New York since the claim was filed. It is also notable that between the March 2004 conference in this Court, and the “stay” commencing in either December 2004 or February 2005 - different times for the commencement are asserted - Claimant does not appear to have attended to any demands in this Claim. Nor does the State appear to have pursued demands with vigor and, moreover, counsel appears to have been in communication with Claimant’s counsel, albeit minimally.

Claimant has established (marginally) that there is a meritorious claim. Anthony Maiello, an accident investigator for the New York City Police Department opines in an affidavit annexed to the moving papers that on May 15, 2002, when he went to the scene to investigate the accident, the area looked like it had not been cleaned for months. [Exhibit N]. Sherry Johnson, employed either by the City of New York or the State of New York Department of Transportation,[1] testified during her deposition that the City of New York was responsible for maintaining the roadway, including the clean-up of trash and debris along the roadway. [Exhibit B]. The contractor’s employee, Michael Madden, testified that it was his employer’s job to clean-up any debris in the area in which they worked for the duration of the contract, and that State inspectors reviewed the work. [Exhibit C]. In an incident report prepared by then Officer Maiello reporting his investigation of the accident it is noted that the State of New York Department of Transportation advised that the roadway was maintained by the contractor, Grace/ el Sol. [See Exhibit J].

It is well-settled that the State has a non-delegable duty to design, construct and maintain its highways in a reasonably safe condition for the traveling public. Friedman v State of New York, 67 NY2d 271 (1986). The State is not an insurer of the safety of its highways, and in fulfilling its obligation to the public the State may assume that those using the roads will use reasonable care and obey the law governing the operation of motor vehicles. See Tomassi v Town of Union, 46 NY2d 91, 97 (1978).[2] A “highway may be said to be reasonably safe when people who exercise ordinary care travel over it in safety.” Boulos v State of New York, 82 AD2d 930, 931 (3d Dept 1981), affd 56 NY2d 714 (1982). The mere happening of an accident does not make the State liable. There must be a showing of negligence: that the State created the dangerous condition or had actual or constructive notice of the dangerous condition, and failed to timely correct the problem, and that such negligence was a proximate cause of the accident.

Since the area of the accident is likely part of the arterial highway system [see Highway Law §349-f] it would be Claimant’s burden to show the distribution of obligations between the City of New York and the State of New York. [See Highway Law §349-c], in addition to whatever contractual obligations were undertaken by the contractor. The statutory obligations rest on the issue of control, as well as notice of dangerous conditions. See Gregorio v City of New York, 246 AD2d 275 (1st Dept 1998), lv dismissed, 93 NY2d 917 (1998); Nowlin v Cilty of New York, 81 NY2d 81 (1993); see also City of New York v State of New York, 98 NY2d 740 (2002).

Based upon the showing made in this case, and in accordance with the general precept that resolution on the merits is preferred, the Court finds that Claimant has raised a triable issue as to the State’s role in the maintenance of the subject construction area and the happening of this accident, and thus has shown a meritorious claim may exist. In accordance with the foregoing, sanctions are imposed upon Claimant’s counsel, personally, in the amount of $2,500.00, payable to the Lawyers’ Fund for Client Protection of the State of New York, in consideration of counsel’s inexcusable conduct.

Accordingly, it is ORDERED, that motion number M-73049 is granted to the extent that:

(1) The dismissal of Claim number 107707 is hereby vacated and such claim is restored upon the law firm of Roura & Melamed forwarding to the Chief Clerk of the Court of Claims, within 30 days of the filing date of this decision and order, a check in the sum of Two Thousand Five Hundred Dollars ($2,500.00) payable to the Lawyers’ Fund for Client Protection of the State of New York, said sum to be paid by the law firm personally and not be charged to or reimbursed by Claimant under any circumstances; and it is further

(2) All discovery shall be completed by December 31, 2007.

(3) A note of issue and certificate of readiness shall be served and filed by Claimant by January 2, 2008.

(4) Dispositive motions, if any, are to be served and filed within sixty (60) days of the filing of the note of issue and certificate of readiness.

August 27, 2007
White Plains, New York

Judge of the Court of Claims

[1]. The reason there is still some uncertainty as to who employs Ms. Johnson is that in response to the pedigree question of who her employer was, she stated the Department of Transportation, and gave a business address belonging to the New York City Department of Transportation. Additionally, the caption for the deposition includes this claim against the State of New York, and the attorney for the State appears to believe that she was a State employee. [Exhibit B].
[2]. “. . . So long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied . . .”, at 97.