|Claimant short name:||MARGOLIS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Law Office of Charles M. Hymowitz, P.C.
By: Charles M. Hymowitz, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: John L. Belford, IV, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 24, 2010|
|See also (multicaptioned case)|
This is a timely filed claim by Gary Margolis (hereinafter "claimant"). The claim is for negligence by the State of New York (hereinafter "defendant") as the result of a one vehicle accident on the ramp from the Loop Parkway onto the northbound Meadowbrook Parkway on July 2, 2006. A bifurcated trial was held on March 9, 2010.
According to claimant's testimony, he was involved in this accident at approximately 1:20 p.m. Claimant was on the ramp from the Loop Parkway to head northbound on the Meadowbrook Parkway. Claimant was operating a 1997 Harley Davidson motorcycle at the time of the accident. Claimant has operated motorcycles for approximately 30 years prior to this accident.
Claimant testified he drove on this ramp every day either in a car or on a motorcycle. Claimant stated he drove on this ramp, on his motorcycle, "the Saturday before this accident" (T. 15)(1) . Claimant stated the accident occurred on a Sunday. Claimant described the guiderail as pretty "smashed up" and said the debris was always pushed off to the curb. Claimant had never made a complaint about the debris to defendant.
Claimant described the ramp as a two lane roadway leading from the Loop Parkway and turning approximately 270 degrees to get onto the northbound Meadowbrook Parkway.(2) Claimant was in the right lane of the ramp and cars were passing him on the left. Approximately three quarters of the way into this turn, claimant noticed a two foot "splinter" of wood from the guardrail (T. 22). Claimant had been leaning to the left to turn the motorcycle. When claimant saw the wood, he shifted his weight back to the right to straighten the motorcycle. After he straightened the motorcycle, claimant steered around the debris to the right and then leaned to the left to keep following the ramp to the left. Claimant "ran out of road" while performing this maneuver. Claimant crossed the solid white line, hit the curb and then rode along the guiderail (T. 24). According to claimant, his body was up along the guiderail for approximately 20 feet before he was able to stop the motorcycle.
On cross-examination, claimant testified he only saw the debris for about one second before having to engage in an evasive maneuver (T. 51). Claimant also stated he had not seen this piece of wood on the roadway prior to the date of his accident.
Claimant called H. Bartlett Howe, III (hereinafter "Howe") as a witness. Howe is employed by defendant as the resident engineer for a 568 mile area which includes the accident location. The witness is responsible for the condition of the roadways and of the guiderails in his residency. Howe's crew consists of nine people to accomplish this task. Howe testified, that as his crew drove along the roads everyday, they would pick up any large debris from the roadways. The crew would also respond to reports of debris from the police and from civilian complaints. Removing debris from the roadway took precedence over maintaining the shoulder area. Howe testified the roadways were well maintained.
Howe testified his crew would inspect accident sites when they received notification of motor vehicle accidents. Typically, notification came via accident reports received from the Department of Motor Vehicles. The reports were usually received about one year after the accidents occurred.
Howe visited the accident site the winter before the accident with his foreman. He noticed the guiderail needed repair and the area could use a cleanup of small debris in the shoulder area. Howe stated the repairs were not done until after claimant's accident (T. 115). Howe mentioned there were a number of accidents at this location resulting in damage to the guiderail. However, Howe indicated, in examining claimant's Exhibit 9, the strength of the guiderail was intact because the wood was not broken all the way through and the steel beam backing the guiderail was intact (T. 149 - 150).
Defendant called Vincent Sepe (hereinafter "Sepe") as its only witness. Sepe is employed by the defendant as a highway maintenance supervisor. He is the foreman on Howe's crew. Sepe supervised the work crews and drove the roads of the residency. He would pass the accident location approximately four to six times a week.
On July 1, 2006, Sepe and his crew shut down the Loop Parkway due to a fireworks show in Long Beach, New York. The parkway is reopened after the show and traffic moves along the parkway "bumper to bumper" for at least an hour after the show. Sepe testified he did not receive any notice of debris in the accident location after the July 1, 2006 shutdown of the Loop Parkway.
In examining claimant's Exhibits 4 and 9, Sepe testified the debris in the shoulder area was cigarette butts, glass and little pieces of plastic. It was the type of debris that could wait for a sweeper to pick it up. Sepe did not see any debris in the roadway.
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, however, 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).
Claimant does not argue the roadway itself was unsafe. Claimant seeks to hold defendant liable for his damages resulting from the State's failure to remove debris from the roadway. Debris on the roadway and along the shoulders is of a transient nature. Claimant's position is since the guiderail in this area takes a lot of damage, defendant is responsible. However, there is no testimony at all as to how long this piece of wood existed in the roadway except for claimant's testimony. Claimant stated he did not recall seeing this piece of wood in the roadway at any time prior to the date of his accident. Claimant testified he had driven on the ramp the Saturday before the accident. The accident occurred on Sunday. At the very least, it can be assumed the piece of wood was in the roadway for less than 24 hours.
The Court finds defendant did not have either actual or constructive notice of the debris in the roadway.
Based upon the foregoing, the Court finds in favor of 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
1. Reference is to the trial transcript page.
2. The Loop Parkway is an east/west roadway that terminates at the Meadowbrook Parkway. Approaching the Meadowbrook Parkway in a westerly direction on the Loop Parkway, the Loop Parkway turns to the left and becomes a looping ramp onto the northbound Meadowbrook Parkway.