New York State Court of Claims

New York State Court of Claims

HORETH v. THE STATE OF NEW YORK, #2007-031-050, Claim No. 112731, Motion Nos. M-73431, CM-73665


Defendant correctly asserts that the Court failed to consider second argument for dismissal of claim in Defendant’s previous motion. Defendant’s motion for reargument is granted. Upon reargument, Defendant has demonstrated that alleged negligence of State Trooper was governmental in nature and, therefore, a special relationship must exist before State can be liable for alleged negligence of State Police, and that State can be liable for failing to replace broken streetlights only if some unusual or defective condition existed. As Claimant can show neither special relationship with State Police, nor unusual or defective condition on highway, claim is dismissed. Defendant’s cross motion to compel disclosure is denied as moot

Case Information

HILDA HORETH as Executrix of the Estate of RONALD P. ALBRIGHT
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:
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 28, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Defendant for reargument of its motion for dismissal of the claim and on cross-motion by Claimant to compel discovery:
1. Defendant’s Notice of Motion (M-73431), filed May 22, 2007;
2. Affirmation of Thomas G. Ramsay, Esq., dated May 21, 2007, with attached exhibits;
3. Claimant’s Notice of Cross-Motion (CM-73665), filed July 5, 2007;
4. Affidavit of Johnson S. Albright, II, Esq., sworn to July 3, 2007, with attached exhibits;
5. Reply Affirmation of Thomas G. Ramsay, Esq., dated July 10, 2007. BACKGROUND

Claimant’s decedent, Ronald P. Albright, was killed in a motorcycle accident on November 11, 2004. At the time of the accident, Mr. Albright was eastbound on Route 104 on the Route 590 overpass, just west of the Irondequoit Bay Bridge in the town of Irondequoit, New York. Mr. Albright crashed his motorcycle and then, tragically, while he was lying in the road, he was run over and killed by another vehicle.

A notice of intention to file a claim was served upon Defendant on January 28, 2005. Claimant was appointed as the executrix of Mr. Albright’s estate on April 19, 2005. In the underlying claim in this matter, filed on September 11, 2006, Claimant alleges that Mr. Albright lost control of his motorcycle when he encountered a large manure spill on the roadway. Claimant alleges that the manure spill constituted a dangerous condition. According to Claimant, Defendant had notice of this dangerous condition and yet either failed or refused to clean the spill or to warn motorists of its presence within a reasonable amount of time. Claimant also alleges that Defendant negligently failed to repair two overhead lights at the scene of the accident which impaired the vision of motorists and, therefore, contributed to the accident.
In motions M-72407 and CM-72450, I addressed the issue of the validity of Claimant’s notice of intention and how that affected the timeliness of the claim. I found that the notice of intention was valid and the claim, therefore, timely. Accordingly, I granted Claimant’s motion to strike Defendant’s fifth affirmative defense (relating to timeliness) and denied Defendant’s motion to dismiss.
With motion M-73431, Defendant seeks reargument of its cross-motion to dismiss the claim (CM-72450), asserting that the Court failed to consider its secondary argument for dismissal of the claim, specifically that, apart from being untimely, Claimant had failed to set forth a valid cause of action. With CM-73665, Claimant opposes Defendant’s latest application and requests an order compelling discovery.

A motion to reargue is governed by CPLR 2221[d][2] and is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Defendant has met its burden of demonstrating that the Court overlooked a matter of fact and law in resolving the prior motion and thus is entitled to relief pursuant to CPLR 2221[d][2]. As Defendant correctly asserts, the Court did not address its secondary argument for dismissal of the action. Accordingly, I find that reargument is appropriate in this matter. I will now address the merits of Claimant’s argument.

Claimant asserts that Defendant is liable based upon two theories of liability. First, Claimant alleges that the State Police were negligent in failing to find and either clean or otherwise warn motorists of the dangerous condition caused by the manure spill in the roadway. Second, Claimant asserts that two street lights were burned out in the vicinity of the accident, thereby impairing the vision of the motorist who subsequently ran Claimant’s decedent over while he was lying in the roadway. Defendant argues that Claimant may not recover on either of these theories. I consider Defendant’s arguments below.
Defendant argues that Claimant may not recover for the alleged failure of the State Police to locate and take steps to alleviate the hazard created by the manure spill. According to Defendant, a Claimant must be able to demonstrate a special relationship between Claimant’s decedent and the State Police before any liability can be found. No such special relationship exists, or has even been alleged. Claimant, conceding that no special relationship existed between the State Police and Claimant’s decedent, nevertheless argues that a special relationship is not required because the alleged negligence related to the State’s proprietary duties as owner of the highway and not to traditional police or governmental duties. A review of relevant case law compels me to agree with Defendant’s position.

Balsam v Delma Eng’g Corp. (90 NY2d 966) involved a plaintiff whose car was damaged in a motor vehicle accident on an icy roadway. The police arrived and took control of the accident scene. Subsequently, while standing behind her car to inspect the damage from the accident, a third vehicle lost control on the same patch of icy pavement and pinned plaintiff between her car and the third vehicle. Plaintiff argued that the police at the scene were involved in a proprietary function at the time of the accident and that a special relationship did not need to be shown for liability to attach. The Court of Appeals affirmed dismissal of the complaint stating: “Like crime prevention, traffic regulation is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers . . . . [T]he challenged police failure to close the roadway or divert traffic here similarly falls well within the immunized ‘governmental’ realm of municipal responsibility” (90 NY2d at 968).

In Rogers v State of New York (288 AD2d 926), the Appellate Division, Fourth Department, addressed a matter emanating from the Court of Claims, which is very similar to the claim at hand. Claimants had been injured when the driver of a second car swerved to avoid a deer carcass in the roadway and collided with Claimants’ vehicle. Claimants alleged that the State, who had received a 911 call earlier, was negligent because a State Trooper dispatched to the scene had failed to remove the hazard or warn travelers of its existence. The Appellate Division, citing Balsam, reversed the lower Court and dismissed the claim, finding that the alleged failure to remove or divert traffic away from the hazard was a governmental as opposed to a proprietary function.

Finally, in Matter of Schleider v State of New York (5 AD3d 1052), the Appellate Division, Fourth Department, again confirmed that activities of the sort alleged in the claim are governmental in nature and, therefore, a special relationship must exist for liability to attach. Schleider involved a motorist who was injured when she lost control of her car on an icy roadway. A similar accident had occurred in the same location a matter of five hours earlier. Although a Deputy Sheriff had responded to the earlier accident, he failed to discover and report the patch of ice which caused the accident. The Appellate Division, however, determined that “the alleged negligence of the Deputy here arises from the exercise of a governmental function and thus cannot provide a basis for liability ‘absent a special relationship between the injured party and the State’” (5 AD3d at 1053, citation omitted).

I find no relevant distinction between the alleged failure of the State Trooper in this action to find and remove, or warn of, the manure spill and the actions of the officers in finding and removing or warning of the hazards in Balsam and Schleider (icy roadways) or Rogers (deer carcass). Accordingly, as Claimant has conceded that no special relationship existed between Defendant and Claimant’s decedent, I find that the claim fails to state a cause of action relating to the alleged negligence of the State Trooper in failing to find and alleviate the hazard created by the manure spill.
Similarly, I find that Claimant has failed to state a cause of action for negligence relating to the two street lights that were allegedly inoperable at the time of Claimant’s decedent’s accident. Claimant and Defendant are in agreement that generally a municipality may not be held liable in negligence for its failure to maintain street lights. In Thompson v City of New York (78 NY2d 682), the Court of Appeals held that lighting is required only “where there is a defect or some unusual condition rendering the street unsafe to the traveling public” (78 NY2d at 684). As stated in Hayden v City of New York (26 AD3d 262), “[a] municipality’s duty to maintain existing street lights is limited to those situations where illumination is necessary to avoid dangerous or potentially hazardous conditions. In order to prevail, a plaintiff must thus show that the municipality permitted a dangerous or potentially hazardous condition to exist and cause injury” (see also Cimato v City of Lackawanna, 158 AD2d 1000; Cracas v Zisko, 204 AD2d 382). Claimant has failed to allege any such unusual, dangerous or hazardous condition in her claim. In response to this motion, however, Claimant argues that at least one of the two street lights in question illuminated a curve in the roadway and that this curve constituted a dangerous condition requiring Defendant to ensure that the street light remained illuminated. I am unable to agree. I find no case law which supports Claimant’s contention that a curve in the road, in and of itself, constitutes something unusual or hazardous. Accordingly, Claimant has failed to set forth a cause of action upon which recovery can be made.

Finally, I note that Claimant’s cross-motion to compel discovery fails to identify any outstanding demands to which Defendant has failed to respond. Indeed, Defendant points out that it has received no disclosure demands (Ramsay Reply Affirmation, para. 3). Moreover, Claimant’s motion is rendered moot in light of the analysis set forth above.

For these reasons, it is hereby

ORDERED, that Defendant’s motion for reargument is GRANTED, and upon reargument, it is further

ORDERED, that Defendant’s motion to dismiss the claim is GRANTED and Claim No. 112731 is hereby dismissed in its entirety. Claimant’s cross-motion is denied as moot.

September 28, 2007
Rochester, New York

Judge of the Court of Claims