Pre-answer motion, characterized as one to dismiss for failure to state a cause of action, denied. Claim states a cause of action. Defendant did not sustain burden of showing that the State of New York not responsible, because it does not own, operate, maintain or control the intersection or manage the construction site where subject accident occurred. Affidavit submitted insufficient.
|Claimant(s):||AHMED M. AHMED|
|Claimant short name:||AHMED|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||GERSOWITZ LIBO & KOREK, P.C.
BY: EDWARD H. GERSOWITZ, ESQ.
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: GWENDOLYN HATCHER, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||November 12, 2009|
|See also (multicaptioned case)|
The following papers were read and considered on defendant's pre-answer motion to dismiss:
1,2 Notice of Motion; Affirmation in Support by Gwendolyn Hatcher, Assistant Attorney General, Attorney for Defendant, and attached exhibits
3 Affirmation in Opposition by Edward H. Gersowitz, Attorney for Claimant
4 Filed Paper: Claim
In his verified claim, Mr. Ahmed alleges that on July 30, 2007 at approximately 6:00 a.m. the vehicle he was operating came into contact with another vehicle owned and operated by Dennis Jonathan Jakub at the intersection of West 60th Street and Broadway in New York City due to the State's negligence. More specifically, he alleges that the New York State Department of Transportation, a State agency, negligently failed to adequately design the intersection including the design, synchronization, installation and/or maintenance of an appropriate traffic control device at the intersection, and allowed construction activities to interfere with the line of sight for vehicle operators, among other things, and that as a result of the collision caused by such negligence, he suffered serious personal injury.
In this pre-answer motion to dismiss counsel for defendant seeks dismissal of the claim "pursuant to Rule 3211 and/or 3212 of the Civil Practice Law and Rules and Court of Claims Act §§10, 11" and argues that the claim should be dismissed because the State of New York does not own, operate, maintain, or control the intersection of West 60th Street and Broadway in Manhattan, nor its traffic control devices. In support of this argument, counsel has attached an affidavit by Osama Khalil, Civil Engineer and Claims Engineer for the New York State Department of Transportation [NYSDOT], New York City Regional Office, discussing generally the role of the NYSDOT with regard to roadways within New York City, the records kept by the agency, and the "process and procedures under Highway Law section 349." [Affirmation in Support by Gwendolyn Hatcher, Assistant Attorney General, Exhibit B]. He does not specifically indicate what his duties are for the agency, but writes that the State is not responsible for this intersection as an owner or otherwise pursuant to a maintenance agreement, and that no construction projects were underway at the time and location of the subject accident.
No maps or deeds or other documentation is attached in support of the motion [cf. McDermott v State of New York, UID # 2002-001-030, Claim No. 105306, Motion No. M-64569 (Read, P.J., April 26, 2002)], nor does counsel for defendant provide any argument - including the statutory basis for which dismissal is sought - beyond the recitation that the claim should be dismissed, nor any discussion of which provisions (if any) of Highway Law §349 may apply. Reciting as the basis for the motion in the notice of motion "Rule 3211 and/or 3212 of the Civil Practice Law and Rules" is not helpful. Similarly, no arguments concerning Court of Claims Act §§10 and 11 are made to the effect that the claim was not properly served or is untimely, or that it does not adequately state the time when and place where it arose or its nature.
In a motion to dismiss a claim for failure to state a cause of action the movant is held to have conceded the truth of every fact alleged by the claimant for purposes of the motion. §3211(a)(7) Civil Practice Law and Rules. Determination of the motion, generally, does not rest upon resolution of the ultimate facts, but rather on whether those facts asserted state a claim. Obviously, the pleading states a claim. Whether the State of New York is responsible is another matter.
As noted by claimant's counsel, no discovery has been conducted, and some or all of any documents that might support claimant's position are in the control of the defendant.
Indeed, the briefest perusal of case law touching on the interplay of the relative responsibilities of State and municipal authorities for roadways within the boundaries of the City of New York suggests that more than an affidavit by a person employed by a party, and an affirmation by counsel merely repeating the contents of the employee's affidavit, in motion practice prior to the commencement of discovery, should suffice to dismiss a pleading apparently sufficient on its face. See Nowlin v City of New York, 81 NY2d 81, 87 (1993), rearg denied 81 NY2d 1068 (1993);(1) Mahon v State of New York, 213 AD2d 517, 518 (2d Dept 1995);(2) Ames v City of New York, 177 AD2d 528, 533 (2d Dept 1991);(3) Klenetsky v State of New York, 172 AD2d 646-647 (2d Dept 1991);(4) see also Albanese v City of New York, 5 NY3d 217, 220-221 (2005).(5)
Based on the foregoing, defendant has essentially moved for summary judgment prematurely as noted by claimant, and has not otherwise met its burden on the motion to dismiss, and the motion is, therefore, in all respects denied. Defendant is directed to serve and file an answer within thirty (30) days of the filing of this decision and order.
November 12, 2009
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. "The trial evidence showed that the State had attained ownership of the Henry Hudson Parkway due to a reconstruction under article XII-B. Moreover, effective 1978, the State had transferred jurisdiction to the City with the direction that such transfer 'shall not operate in derogation of the State's right to establish and require compliance with maintenance standard[s] and also require compliance with any Federal Highway Administration order, directive rule or regulation concerning Federal-aid Highways.' Thus, as of the date of the accident, the City had jurisdiction over the Henry Hudson Parkway but the State retained certain maintenance responsibilities. These responsibilities--as allowed by Highway Law § 349-c(7)-(9)--were delegated to the City under an ongoing maintenance agreement. Under the maintenance agreement, the State reserved the right to perform its own sign installation and replacement, with the City to maintain any signs installed by the State."
2. "There is no merit to the State's contentions that, pursuant to a maintenance agreement between the City of New York (hereinafter the City) and the State, the City accepted sole responsibility for maintenance of the expressway and that the State was thereby relieved of all responsibility (see, Highway Law § 349-c [3.4]). The maintenance agreement provided that the City would maintain the shoulder to prevent erosion, ruts and displacement. However, the agreement further provided that '[w]ork resulting from failures due to fault design or construction . . . will be performed by the [State] Department of Transportation.'"
3. "Moreover, the City failed to establish that, by virtue of the roadway's ultimate designation as a State arterial highway, it was released from its obligation to provide safe highways for its citizens. The State Arterial Highway System was created (L 1944, ch 543) in order to provide a statutory framework for the modernization and construction of city arterial routes with State and Federal funds as they became available (see, Highway Law § 349-b). While the State was thereby empowered to perform improvements on the Interborough Parkway, this did not relieve the City, which retained jurisdiction over the highway, as well as, inter alia, the right to make its own plans, acquire its own property, and perform its own construction and otherwise control arterial highways within City limits (see, Highway Law § 349-c[3.1]-[3.4], [3.6] ), of its maintenance duties (see, Gibbs v State of New York, slip opn M-362 6S, Ct Cl, Aug. 6, 1987 )."
4. "Pursuant to Highway Law § 349-c, the State of New York properly transferred responsibility for maintenance of the Grand Central Parkway Arterial Highway to the City of New York, by transfer order dated July 9, 1974 (see, Highway Law § 349-c [3.4] ). The record discloses that in response to the City's own inquiry regarding the subject site, by letter dated June 3, 1980, the State directed the City 'to provide necessary maintenance so that the adjacent abutment slopes are protected from further threatening damage'. The claimant's expert conceded that the hazardous condition created on the path was a maintenance problem and not a design defect. In view of the State's proper transfer of maintenance responsibility and the specific written direction to the City to repair the subject area, the State may not be held to have breached any duty owed to the claimant."
5. "As we explained in Nowlin, arterial highways by definition implicate both state and local interests, and the statute pays deference to both. It provides that the State may expend state or federal funds for the purchase, design, construction or reconstruction of arterial routes and thereby may attain ownership of them (Highway Law § 349-c , ,  ). The State, however, can proceed with construction only 'after designs, plans, specifications and estimates of cost thereof have been completed and approved by the city and the commissioner of transportation, and the necessary property has been acquired' (Highway Law § 349-c [3.4] ). Once state work is complete, 'the commissioner of transportation shall transfer jurisdiction to the city of New York' (id.). The separation between city and state responsibility, however, is not absolute, even during construction. Recognition of city authority--both the power to regulate its affairs, and the obligation to maintain its property--is a theme sounded throughout the history of article XII-B (see Nowlin, 81 NY2d at 87-88). For example, during state work, the City may itself initiate construction projects and thus take on the function of an owner (Highway Law § 349-c [3.6] ); by the same token, the State may--as in Nowlin--retain maintenance responsibilities even after transferring jurisdiction to the City. Two related, significant facts distinguish this case from Nowlin, where we sustained a damages award against the City for an automobile accident on an arterial highway, the Henry Hudson Parkway. In Nowlin, years before the accident, the State had completed construction and transferred jurisdiction to the City. Here, state construction was ongoing at the time of plaintiff's injury. In Nowlin, moreover, where negligent placement of warning signs allegedly created a traffic hazard that caused plaintiff's injury, it was the City that had actually planned and placed the signage on the parkway. Here, the City exercised no comparable function with respect to the scaffolding that was part of the State's rehabilitation of the Cross Bronx Expressway-Bruckner Interchange. The State was in charge of the project, and the City had no say as to which contractor or consultants were hired. The City did not perform any of the work. The City's role was largely confined to its regulatory responsibilities arising out of its work permits. That limited involvement cannot subject the City to absolute liability under the Labor Law for an injury allegedly resulting from the height of a scaffold placed by state contractors."