Bicyclist's front tire gets caught in a grate in the roadway. Defendant's summary judgment motion.
|Claimant(s):||DENNIS COHEN AND CYNTHIA COHEN|
|Claimant short name:||COHEN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Gina M. Lopez-Summa|
|Claimant's attorney:||Sakkas, Cahn & Weiss, LLP
By: Matthew Sakkas, Esq.
|Defendant's attorney:||Hon. Eric T. Schneiderman, Attorney General
By: John L. Belford, IV, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 28, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion; Defendant's Affirmation in Support with annexed Exhibits; Attorney's Affirmation in Opposition with annexed Exhibits; and Defendant's Affirmation in Reply with annexed Exhibit.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3212 seeking an order granting summary judgment in its favor and dismissing the claim. Claimants, Dennis Cohen and Cynthia Cohen, oppose the motion.
The subject claim arose on August 6, 2011 at approximately 9:35 a.m., when claimant(1) was involved in a bicycle accident while riding his bicycle on the northwest side of Bacon Road near the intersection with State Highway 25B also known as Hillside Avenue in Old Westbury, New York, across the street from the Wheatley School. At that time, claimant's front tire became trapped within the slots of a catch basin grate causing him to fall to the ground and sustain injuries.
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Med. Group, 88 NY2d 904 ; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 ; Zuckerman v City of New York, 49 NY2d 557 ). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 ). In determining a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party (Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634 [2d Dept 2010]).
The State of New York has a duty to maintain its roadways in a reasonably safe condition and the breach of that duty can result in liability to the defendant if the ascribed negligence in maintaining the road is a proximate cause of the accident (Wittorf v City of New York, 23 NY3d 473 ). In addition, the State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (Friedman v State of New York, 67 NY2d 271 ). However, the State is not an insurer of the safety of its roadways, and the mere fact that an accident resulting in injury occurred does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 ; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 ).
Highway Law § 46, as amended in 1970 (L. 1970, ch 628) provides that the State is responsible for maintaining any drainage ditches and storm sewer facilities constructed primarily to service State highways. However, the amendment to Highway Law § 46 was intended to be prospective in nature and, therefore, the responsibility for maintaining any drainage ditches or storm sewer facilities constructed prior to January 1, 1971, the amendment's effective date, remains with the village in which they are located (Washington County Sewer Dist. No. 2 v White, 177 AD2d 204 [3d Dept 1992]). The amendment includes within its ambit not only drainage facilities newly constructed after the effective date but also those in existence prior to the effective date that were reconstructed or substantially rehabilitated after such date in connection with improvement of a State highway (Mason v State of New York, 180 AD2d 63, 66 [3d Dept 1992]).
In the case at hand it is uncontroverted that the drainage structure at issue was constructed prior to 1970. Bacon Road is a Village of Old Westbury road which is maintained by the Village while State Route 25B is a State owned road which is maintained by the State. Although Bacon Road is not a State highway, the subject drainage structure services State Route 25B. In 2002, the State of New York entered into Contract No. D258703 (2002 Project) which provided for the asphalt concrete reconstruction of 6.5 kilometers of State Route 25B. Contract D258703 called for the clearing of the subject drainage structure and its connecting pipes and placement of sediment filter bags during construction but not its replacement or reconstruction.
According to Michael Malatino, Village of Old Westbury Superintendent of Buildings and Public Works, the Village does not maintain the storm drain involved in claimant's accident since the drain is part of the State drainage system.
Brian Fitzgerald, a New York State Department of Transportation Highway Maintenance Supervisor, stated at his deposition that he and his crew were responsible for maintaining the storm drains along State Route 25B. He explained that his Foreman told him that he was only responsible for maintaining the storm drains that were physically located on State Route 25B. Mr. Fitzgerald confirmed that the storm drain involved in claimant's accident was physically located on Bacon Road.
Muthiah Vijayendran, a Resident Engineer for the New York State Department of Transportation, was deposed in this matter. He was also responsible for the maintenance of State highways in his residency which included State Route 25B. He was not the Resident Engineer at the time of the 2002 reconstruction project. He stated that the subject storm drain was not maintained by the State because it was outside the State's right of way. He defined the State's right of way as "the land that the residency maintains which [he assumed] belongs to the State of New York." He stated that he believed the right of way extended to the curb line of the highway. The 2002 Project did provide for the replacement or renovation of other existing drainage structures along State Route 25B.
Defendant, submitted the Affidavit of Vinicio Lora, a Civil Engineer and Design Unit Supervisor employed by the New York State Department of Transportation, in support of its motion. He reviewed the original record plans for the construction of State Route 25B which occurred in 1966. He stated that the plans indicated that the subject drainage structure was to be maintained by the Village of Old Westbury. He reviewed the 2001 plans for the reconstruction of State Route 25B which revealed that the only work that was done on the subject drainage structure was the cleaning of the structure itself and the connecting drainage pipes. Additionally, a tarp was used to cover the subject drainage structure to prevent debris from entering it during re-pavement of State Route 25B.
Nicholas Bellizzi, a professional engineer licensed in New York and New Jersey, provided an Affidavit in support of claimant's position. He stated that during the 2002 Project various drainage structures servicing State Route 25B were reconstructed and improved. He clarified that the drainage structure involved in claimant's accident was cleaned such that accumulated sediment and silt were removed and sediment filtration bags were placed during construction.
In claimant's expert disclosure concerning the anticipated testimony of Mr. Bellizzi claimant states that Mr. Bellizzi will testify that the "[c]ontract documents for the Improvement of South Section of Bacon Road (Contract 25737) did not make any provision for improvement, modification or reconstruction of the NYS storm drains servicing Hillside Avenue."
Defendant has established its prima facie entitlement to summary judgment by demonstrating that it bore no responsibility to maintain, repair or replace the drainage structure involved in claimant's accident. Defendant established that the drainage structure was located on Bacon Road which is a Village of Old Westbury roadway maintained by the Village, the drainage structure was constructed prior to 1970 and the only work that was done on the subject drainage structure was the cleaning of the structure itself and the connecting drainage pipes. Additionally, defendant has established that the drainage structure was not reconstructed or substantially rehabilitated after the effective date of the amendment to Highway Law § 46, January 1, 1971. As a result, maintenance responsibilities for the drainage structure involved in claimant's accident continue to reside with the Village of Old Westbury (Village of Mamaroneck v State of New York, 51 AD3d 1011 [2d Dept 2008]; Mason v State of New York, 180 AD2d 63 [3d Dept 1992]).
In opposition, claimant has failed to raise a triable issue of fact.
Therefore, for the foregoing reasons, defendant's motion is granted and the claim is dismissed.
March 28, 2018
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims
1. Unless otherwise stated the term claimant shall refer to the claim of Dennis Cohen as the claim of Cynthia Cohen is derivative in nature.