New York State Court of Claims

New York State Court of Claims

KLATSKY v. STATE OF NEW YORK, #2008-038-626, Claim No. 112574, Motion No. M-75253


Defendant's motion to dismiss on immunity grounds Granted. Defendant's actions with respect to obstruction in a roadway were discretionary, not ministerial, and claimant did not allege the existence of a special relationship.

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:
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 18, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant sustained injuries in an automobile accident that occurred on July 31, 2004 while he was driving northbound on North Chodikee Lake Road in the Town of Lloyd, New York. The claim alleges that claimant’s vehicle left the road and struck a tree when claimant swerved to avoid a southbound vehicle that was driving in the northbound side of the road in order to avoid a fallen tree that was blocking the southbound lane (see Claim, ¶ 3). The claim further alleges that the downed tree had been reported to the State Police more than two hours before claimant’s accident, that a State trooper represented to the person reporting the tree that it would be “taken care of” (Claim, ¶ 7). The claim alleges that despite having notice of the downed tree, the State was negligent in failing to mark or barricade the tree or remove it from the roadway prior to claimant’s accident (see id.). Defendant moves to dismiss the claim on the grounds that defendant is immune from liability for negligence occurring during the performance of the governmental function of traffic regulation absent demonstration of a “special relationship,” and that there was no “special relationship” established between claimant and defendant in this case. Claimant opposes the motion solely on the ground that defendant may be held liable in this case because its was negligent in performance of a ministerial duty to which immunity does not attach. It is well-established that the State is immune from liability for the negligent performance of governmental functions absent a special relationship between the State and the claimant that gives rise to a special duty to that citizen (Cuffy v City of New York, 69 NY2d 255, 258 [1987]).[1] “[T]raffic regulation is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers” (see Balsam v Delma Eng’g Corp., 90 NY2d 966, 968 [1997]. Courts have uniformly held that police conduct in warning motorists of roadway hazards and removing hazards from roadways are governmental functions entitled to this rule of immunity (see Eckert v State of New York, 3 AD3d 470 [2d Dept 2004] [alleged negligence in failing to replace extinguished road flares or otherwise warn motorists of accident scene]; DiFlorio v Worden, 303 AD2d 924 [4th Dept 2003] [alleged negligence in failing to remove disabled vehicle and failing to safeguard oncoming traffic]; Respass v City of New York, 288 AD2d 286 [2d Dept 2001] [alleged negligence in placement of road flares at an accident scene]; Rogers v State of New York, 288 AD2d 926 [4th Dept 2001] [failure to remove deer carcass from roadway after a 911 call from a motorist had been received alerting State Police to the hazard]; Horeth v State of New York, UID # 2007-031-050, Claim No. 112731, Motions No. M-73431, CM-73665, Minarik, J. [Sept. 28, 2007] [alleged negligence in failing to find and remove or warn of manure spill in roadway]). Here, the alleged negligence of the State – failing to warn of the tree in the roadway or to remove it prior to claimant’s accident – falls well within this line of cases.

In opposition to the motion, claimant relies on the rule that governmental immunity attaches only for discretionary acts, but not the performance of ministerial duties (see Tango v Tulevech, 61 NY2d 34, 40 [1983]). Claimant dissects the activities of the State Police on the evening in question, and argues that when a State trooper arrived at the site of the downed tree and discovered that he lacked the tools to remove it from the roadway more than two hours before claimant’s accident, “at [that] point it was the duty of the state police to notify the state or county Department of Transportation” (Klatsky Affirmation, ¶ 4). Claimant further contends that once the tree was discovered, reason required the State Police to do something, and thus, the actions “of ensuring that the appropriate Department of Transportation authorities were made aware of the tree and of placing flares around the tree to protect the public” (id., ¶ 5) were ministerial acts to which immunity does not attach. Claimant asserts that because the State Police wholly failed to perform these allegedly “mandatory” actions, there was no exercise of discretion to which immunity may attach. The argument is unavailing because claimant misapprehends the legal distinction between discretionary and ministerial acts.

The Court of Appeals has held that “discretionary or quasi-judicial acts involve the exercise of reasoned judgment which could typically produce different acceptable results whereas a ministerial act envisions direct adherence to a governing rule or standard with a compulsory result” (Tango v Tulevech, supra at 41). Claimant’s reliance on Haddock v City of New York (75 NY2d 478 [1990]) is misplaced, because in that case, immunity did not attach not because the Court characterized the City’s conduct as ministerial, but because the City wholly failed to exercise any judgment or discretion thereby “violat[ing] its own internal rules and policies” (id. at 485). Similarly, in Verizon New York, Inc. v Village of Athens, (43 AD3d 526 [3d Dept 2007]), immunity did not attach because the defendant municipality violated express regulatory provisions that required it to engage in certain notification procedures. Here, claimant points to no statute, rule, regulation, policy, or other standard that compelled defendant to inform a State or local department of transportation that there was a tree in the road, and the act of notification must be construed as part of a continuum of discretionary, governmental acts.[2] In the complete absence of argument or facts supporting the existence of a special relationship between claimant and defendant, the actions of the defendant with regard to the hazard on North Chodikee Lake Road are entitled to immunity. Accordingly, it is

ORDERED, that Motion No. M-75253 is GRANTED, and Claim No. 112574 is DISMISSED.

November 18, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Notice of Motion for Summary Judgment, dated July 17, 2008;

(2) Affidavit of Michael C. Rizzo, AAG, sworn to July 17, 2008, with Exhibits 1-3;
(3) Defendant’s Memorandum of Law, dated July 17, 2008;

(4) Affirmation in Opposition of James Klatsky, Esq., dated September 8, 2008, with Exhibits A-C;

(5) Reply Affidavit of Michael C. Rizzo, AAG, sworn to September 15, 2008, with exhibits 1-3.

[1]. The claim does not allege, nor does claimant now contend, that a special relationship existed between claimant and the New York State Police.
[2]. Claimant’s argument is, in essence, that once a discretionary determination is made, the implementation of that decision becomes a mandatory ministerial duty, whether or not it is expressly compelled. This argument in inconsistent with the rule as stated in Tango v Tulevech, supra.