The underlying claim in this case arises from a July 24, 2007 motorcycle
accident on East 163rd Street in the Bronx, just west of its intersection with
Simpson Street. It is alleged that Jose Cruz’s motorcycle “hit a
crack, bump, depression, hole and/or uneven, raised and/or broken pavement in
the roadway, thereby causing the claimant to be ejected from his
motorcycle.” Claim, ¶¶2 to 4.
Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212
on the ground that the City of New York, rather than the State, is responsible
for the accident site. Pursuant to article XII-B of the Highway Law
(§§349-b through 349-f), the State may, under certain circumstances,
have maintenance and repair responsibility for various roadways running through
the City of New York which are enumerated in §349-f. East 163rd Street in
the Bronx is not so enumerated in §349-f.
Even were East 163rd Street comprehended by §349-f, in order for the State
to have maintenance and repair responsibility, two requisites would be
necessary: (1) the highway in question must have actually been
“constructed, reconstructed or improved” by the State; and (2) the
State commissioner of transportation must have issued an official order
declaring such highway “to be a part of such system of highways for such
purposes of maintenance and repair,” and such order must have been filed
with the State Department of Transportation, the Department of State and the
office of the clerk or official who performs the related functions of the city
in which such highway is located. See Highway Law §349-d.
In that regard, the State has submitted the affidavit of Osama Khalil, Regional
Claims Engineer for the New York City Regional Office of the New York State
Department of Transportation, who essentially states that neither of these two
requisites have been met, and that the accident site “is not part of the
‘built’ arterial highway system in New York City. The subject
intersection falls under the jurisdiction of the City of NY.” Mr. Khalil
adds that “[t]here were no State construction contracts in effect with any
contractor at the time and location of the subject accident.” See the
October 26, 2007 Khalil affidavit, annexed to defendant’s moving papers as
exhibit C. Claimant, who submitted no opposition papers on this motion, does
not dispute any of Khalil’s contentions.
In view of the foregoing, having reviewed the parties’
, IT IS ORDERED that motion no.
M-74927 be granted and that claim no. 114375 be dismissed.