New York State Court of Claims

New York State Court of Claims

TIERNO v. THE STATE OF NEW YORK, #2007-044-567, Claim No. 110052, Motion No. M-72940


Claimant's motion for summary judgment on issue of liability denied in claim for personal injuries received when claimant encountered a depression surrounding a manhole in a State highway while riding his motorcycle. Whether the depressed manhole constituted a dangerous condition of which the State had constructive notice is a question of fact, particularly given conflicting expert affidavits on that issue. Further, evidence submitted on question of claimant's comparative negligence does not warrant a finding at this point that claimant was not comparatively negligent as a matter of law. Finally, claimant's request that the State's "budgetary constraints" defense be dismissed must be denied.

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:
FINKELSTEIN & PARTNERS, LLPBY: George A. Kohl, 2nd, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 27, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant filed this claim to recover damages for personal injuries incurred in an accident which apparently took place when he encountered an allegedly dangerous condition (a depressed manhole cover) in the pavement of a highway owned by defendant State of New York (defendant) while riding his motorcycle. Claimant now moves for partial summary judgment on the issue of defendant's liability, as well as on the issue of claimant's comparative negligence. Claimant further requests that the Court strike defendant's second affirmative defense of “budgetary constraints.” Defendant opposes the motion, arguing that whether the depressed manhole cover was actually a dangerous condition is a question of fact.

It is well settled that the State has a nondelegable duty to keep its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271 [1986]; Weiss v Fote, 7 NY2d 579 [1960]). In order to prevail on his motion, claimant must set forth evidentiary facts in admissible form which establish that defendant knew or should have known that there was a dangerous condition in the roadway at the site of the accident, and that such condition was the proximate cause of claimant’s injuries (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; see also Alig v Parkway Parking of N.Y., Inc., 36 AD3d 980 [2007]). Once the movant makes this showing, the burden shifts to the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Absent such a prima facie showing, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

Joseph McHugh, a professional engineer, prepared a report on claimant's behalf. The report is based, in large part, upon photographs of the subject manhole cover which he states were taken at the scene “close in time to the time of the incident.” McHugh characterizes the photographs as “clearly reveal[ing] a condition of severe pavement deterioration and a depressed manhole cover [which] occurred over an extended period of time and existed for a substantial period of time.” McHugh notes that there was severe alligator cracking in the pavement surrounding the manhole cover and that the cover had settled. McHugh states that although defendant performed two construction contracts in the area of the manhole during 1997 and 2001, no work was undertaken on the cover itself. In McHugh’s opinion, the distressed pavement and manhole cover which had settled below the road surface constituted a dangerous condition. McHugh further opines that because DOT conducted annual pavement evaluations and had maintenance crews regularly traveling over the roadway, defendant knew or should have known of this purportedly dangerous condition. McHugh estimates that cost of raising the manhole cover to the proper grade would have been approximately $1,200, and further that defendant could have simply installed a temporary blacktop patch over the cover to bring it level with the existing roadway for as little as $500.

Claimant’s accident occurred on June 25, 2003, but the “date stamp” on the photographs indicates they were not taken until May 10, 2004, and clearly are not “close in time to the time of the incident.” In light of the 10½ months between the accident and the date of the photographs, claimant's suggestion that the photographs are sufficient in themselves to justify a finding that defendant had constructive notice of the allegedly dangerous condition must fail, and the cases cited by claimant in support of this proposition (Ferlito v Great S. Bay Assoc., 140 AD2d 408 [1988] [photographs of the scene were taken two to three weeks afterward]; Karten v City of New York, 109 AD2d 126 [1985] [photographs were taken three weeks after the incident]) are readily distinguishable on that basis. Given McHugh’s heavy reliance on the photographs and their lack of relevance to the condition of the roadway at the time of the accident, the Court finds that McHugh’s report is insufficient to satisfy claimant’s burden of establishing a dangerous condition as a matter of law. Accordingly, claimant’s motion for summary judgment on the issue of liability is denied.

Even if claimant had met his burden on this aspect of the motion, the motion must still be denied. In opposition, defendant submits the affidavit of Thomas D. Wiser, DOT Resident Engineer for Broome County and a Regional Construction Engineer, who has been employed by DOT for approximately 15 years. Wiser states that he is personally familiar with the pavement condition in the area of the accident and that pavement evaluations were performed annually. Wiser notes that in 2003, the pavement evaluation score for the area at issue was a “seven” and that score signifies that the pavement was in good condition, without the need for repair. Wiser’s opinion is that the manhole cover and pavement prior to and at the time of claimant’s accident did not constitute a dangerous condition. Wiser also reviewed the photographs of the accident scene (which were taken 10½ months after claimant’s accident, as set forth previously herein) and further opines that the manhole cover and surrounding pavement, as depicted in those photographs, are not in need of repair or reconstruction. Wiser states that DOT did not receive any complaints about the roadway in the vicinity of the accident or about the manhole cover prior to claimant’s accident.[1] Clearly, there exist questions of fact concerning whether the condition of the roadway was dangerous and whether defendant had constructive notice thereof.

Although it is not specifically set forth in the notice of motion itself, claimant also requests summary judgment on the issue of his comparative negligence. Claimant testified that he was traveling on his motorcycle at approximately 35 mph and was approaching an intersection in heavy traffic. Notwithstanding claimant’s testimony that he was conscientiously observing his surroundings, including the moving traffic and traffic light, he also admitted knowing that there was a dip or depression in the roadway (i.e. in the area of the manhole cover) in front of him. While the Court may ultimately find little or no comparative negligence on claimant’s part, at this point the evidence does not support a finding that claimant was not comparatively negligent as a matter of law (see Thoma v Ronai, 189 AD2d 635, 636 [1993], affd 82 NY2d 736 [1993]; see also Romano v 202 Corp., 305 AD2d 576 [2003]). Consequently, claimant’s request for summary judgment on that issue is also denied.

Lastly, claimant seeks dismissal of the second affirmative defense of “budgetary constraints.” Claimant, as moving party, has the burden of submitting sufficient proof to demonstrate that the defense cannot be maintained (Arquette v State of New York, 190 Misc 2d 676 [2001]). Claimant has failed to do so. The essential basis for claimant's contention that the defense cannot be maintained is that an inspection report conducted and prepared after the accident indicated the inspector's opinion that the cover was not the State's responsibility. Claimant postulates that, if the State did not believe that the cover was its responsibility, that budgetary constraints would have been irrelevant. However, claimant's argument must inevitably fail. This post-accident conclusion reached by a single inspector is clearly no bar to the defense. Other State employees, such as Mr. Wiser, obviously were well aware that the cover was the State's responsibility, presumably prior to the accident. A motion to dismiss a defense should be denied where there is any doubt as to its potential viability (see Abney v Lunsford, 254 AD2d 318 [1998]; Davidson v State of New York, Ct Cl, Feb. 2, 2004, Collins, J., Claim No. 108063, Motion No. M-67641 [UID # 2004-015-379]).

Claimant has failed to meet his burden of eliminating any material issue of fact in this claim, and thus, has failed to establish entitlement to summary judgment as a matter of law (see Alvarez v Prospect Hosp., supra). Claimant’s motion is denied in its entirety.

August 27, 2007
Binghamton, New York

Judge of the Court of Claims

The following papers were read on claimant’s motion:

1) Notice of Motion filed on February 14, 2007; Affirmation of George A. Kohl, 2nd, Esq., dated February 13, 2007, and attached Exhibits A through L.

2) Affirmation in Opposition of Geoffrey B. Rossi, AAG, dated May 16, 2007, and attached Exhibits A through D.

Filed papers: Claim filed on November 4, 2004; Verified Answer filed on November 29, 2004.

[1]. Wiser indicates that a complaint about the cover was received on July 7, 2003, almost two weeks after the accident, and further notes that this particular complaint appeared to be related to claimant's accident.