|Claimant short name:||BENCOSME|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Bernard T. Callan, P.C.
By: Bernard T. Callan, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Kimberly A. Kinirons, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 24, 2010|
|See also (multicaptioned case)|
This is a timely filed claim by Juan Bencosme (hereinafter "claimant"). The claim is for negligence by the State of New York (hereinafter "defendant") as the result of a motor vehicle accident on June 24, 2007. The accident occurred in the right northbound lane of Deer Park Avenue (State Route 231) approximately 200 feet south of Grand Boulevard. On March 3, 2010, a bifurcated trial was held.
Claimant testified he was riding his 2007 Suzuki GSXR 750 motorcycle at the accident location at 10:30 p.m. Claimant stated his motorcycle hit a bump which caused his motorcycle to "pop up". As the motorcycle came back down, claimant pressed the front brake, the wheel locked and claimant flipped over the front of the motorcycle. Claimant testified he did not see the bump in the road until after his accident. Claimant identified Exhibits 2 - 6 as the bump where he had his accident.
On cross-examination, claimant admitted his motorcycle was recently purchased on April 24, 2007. Claimant also testified he did not have a motorcycle license. However, during claimant's direct testimony he stated he had owned two earlier models of this motorcycle and had driven them approximately five to six years.
Claimant's friend, Reynard Lagonterie, was riding behind him on his motorcycle. The witness saw claimant's accident and echoed claimant's description of the accident.
Claimant called Brett Betke, a Highway Maintenance Supervisor II, for defendant. The witness identified the area depicted in claimant's Exhibits 2 - 6 as a temporary pavement patch. Mr. Betke did not recall when the repair was made. He further testified he was not sure how long a temporary patch could last. The patching material is typically compacted with a roller. However, in emergency situations, a heavy dump truck or payloader may be used.
Claimant's last witness was John Desch, an expert engineer and accident reconstructionist. The expert opined the patch caused claimant's accident and the patch was done improperly. It appeared the patch was compacted by truck tires and the right side of the patch was slightly higher than the rest of the patch. During cross-examination, and after reviewing Exhibits 2 - 6, the expert admitted the patch appeared relatively level.
It is well established that the State is required to maintain its roads and highways in a reasonably safe condition to prevent foreseeable injury (Kissinger v State of New York, 126 AD2d 139). The State, however, is not an insurer of the safety of its roads (Tomassi v Town of Union, 46 NY2d 91). The fact that an accident occurs will not create the presumption of liability (Tomassi v Town of Union, supra). Liability cannot attach unless the ascribed negligence of the State in maintaining a particular highway is a proximate cause of the accident (Hearn v State of New York, 157 AD2d 883, lv denied 75 NY2d 710). In addition, as to the drivers on the roadways, they must see what there is to be seen (Weigand v United Traction Co., 221 NY 39).
It is incumbent upon claimant to establish: the existence of a foreseeable dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that damages were sustained (Gordon v American Museum of Natural History, 67 NY2d 836).
It is the particular facts and circumstances of each case which will determine whether a dangerous or defective condition exists (Guerrieri v Summa, 193 AD2d 647). The Court finds that the claimant has failed to prove that a dangerous condition existed or that the condition constituted a defect (Trincere v County of Suffolk, 90 NY2d 976).
The Court notes claimant's friend had no problem traversing the patch where claimant fell nor did any of the other traffic crossing this patch. The sole proximate cause of the accident was claimant's driving and inattentiveness to road conditions.
Accordingly, the Court finds in favor of the defendant and dismisses the claim. Any motions not specifically ruled upon are denied.
Let judgment be entered accordingly.
September 24, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims