New York State Court of Claims

New York State Court of Claims

SCHAUMBERGER v. THE STATE OF NEW YORK, #2008-033-586, Claim No. 113233


Synopsis


Following trial on liability for damages by claimant for property damage due to the alleged negligence of the State of Ne w York, the Court found that the sidewalk area in question was not the responsibility of the State of New York to maintain.

Case Information

UID:
2008-033-586
Claimant(s):
PAUL SCHAUMBERGER
Claimant short name:
SCHAUMBERGER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113233
Motion number(s):

Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Paul Schaumberger, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: Denis McElligott, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 8, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a timely filed claim for damages by Paul Schaumberger (hereinafter "claimant") for property damage due to the alleged negligence of the State of New York. The claim arose October 17, 2005, in Port Washington, New York. The trial of this action took place on December 11, 2007.

According to claimant, on October 17, 2005, a sewer line leading to his house broke. When the sewer line was dug up by a contractor hired by claimant, the line had been penetrated by roots from a tree which was growing in front of claimant’s house, adjacent to State Route 101.

Claimant called Andrew Puleo (hereinafter “Puleo”) as a witness. Puleo is a permit engineer for the New York State Department of Transportation. On October 17, 2005, the witness went to claimant’s house. The witness was traveling from another site and going past claimant’s house. At that time, the witness observed a lane closure by claimant’s house. Puleo stated that as the permit engineer it was his job, since he was unaware of this job, to stop and see if the party doing work, and closing a lane of the roadway, had the appropriate permit to perform the work. The work being done was by the private contractor that was digging up claimant’s property so the contractor did not need a permit. However, Puleo informed them that they could not block the travel portion of the roadway as they were doing.

Puleo observed the curb along the State highway, then a strip of grass he referred to as “snow storage” area. The tree, referred to by claimant, was in this strip of grass. After the strip of grass, there was a sidewalk and then the claimant’s property. The excavation was taking place on the claimant’s property. Once the travel lane was cleared and the witness determined that New York State property was not being disturbed, he left this site.
Typically, the State is responsible for the roadway “curb to curb” (Nado v State of New York, 161 Misc 2d 178). Highway Law §140(18) states that the town is responsible for maintenance of the sidewalks adjacent to state roadways. The strip of grass which exists in some areas between the roadway and the sidewalk is part of the sidewalk (Malone v Town of Southold, 303 AD2d 651; Callan v City of New York, 17 Misc 3d 248).
In the instant case, the tree which is located in the sidewalk area is not the responsibility of defendant to maintain.
Based upon the foregoing, the Court finds in favor of defendant and dismisses the claim. All motions not specifically ruled upon are denied.
Let judgment be entered accordingly.
April 8, 2008
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of Claims