New York State Court of Claims

New York State Court of Claims

CRUZ v. THE STATE OF NEW YORK, #2008-016-042, Claim No. 114375, Motion No. M-74927


Synopsis


Claim arising from motorcycle accident was dismissed on the ground that the accident site was the responsibility of the City of New York, not the State.


Case Information

UID:
2008-016-042
Claimant(s):
JOSE CRUZ
Claimant short name:
CRUZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114375
Motion number(s):
M-74927
Cross-motion number(s):

Judge:
Alan C. Marin
Claimant’s attorney:
Dinkes & Schweitzer, P.C.No Appearance
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 13, 2008
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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’ submissions[1], IT IS ORDERED that motion no. M-74927 be granted and that claim no. 114375 be dismissed.


August 13, 2008
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]The following were reviewed: defendant’s notice of motion with affirmation in support and exhibits A through C.