New York State Court of Claims

New York State Court of Claims
BAKER v. STATE OF NEW YORK, # 2020-015-053, Claim No. 124072, Motion No. M-95369


In a claim alleging negligent highway design, defendant's motion to amend its answer was granted to the extent it sought to allege qualified immunity as a defense for its highway planning decisions, but was denied to the extent it sought leave to add the defense of governmental immunity.

Case information

UID: 2020-015-053
Claimant(s): KENNETH BAKER, Individually and as Parent and Natural Guardian of BO BAKER, Deceased
Claimant short name: BAKER
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124072
Motion number(s): M-95369
Cross-motion number(s):
Claimant's attorney: Castle Law Firm
By: Michael A. Castle, Esq.
Defendant's attorney: Honorable Letitia James, Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: June 5, 2020
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Defendant moves to amend its answer to allege the defenses of governmental and qualified immunity pursuant to CPLR 3025 (b).

Claimant's decedent, Bo Baker, was allegedly operating a motor vehicle in a westbound direction on State Route 5 in the Town of Little Falls, New York, when it crossed the opposing eastbound lane of travel and exited the south shoulder. The vehicle proceeded over a small embankment into a frozen pond along the roadway coming to rest on its roof, partially submerged in water (Claim, 7). Claimant seeks damages for the pain, suffering and wrongful death of the decedent premised on the contention that the defendant was negligent in designing and maintaining the roadway without guardrails separating the road from the adjacent pond, and in failing to warn of the danger (claim, 12-17).

Defendant seeks to add the following affirmative defenses to its answer:

"Defendant through its agents and/or employees took action and made quasi-judicial and/or discretionary determinations concerning highway planning, design, repair and maintenance of that portion of the highway in question, and, therefore, defendant is immune from any liability for such actions and determinations" (defendant's Exhibit D, 17).

"Defendant is entitled to immunity on the basis that the State's acts or omissions complained of in the claim were undertaken as part of its governmental function, defendant owed claimant no special duty and/or defendant's alleged acts or omissions were the result of an exercise of discretion" (defendant's Exhibit D, 18).

The law is settled that absent prejudice or surprise, leave to amend a pleading shall be freely granted where the proposed amendment is not plainly lacking in merit (CPLR 3025 [b]; McCaskey, Davies and Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1149 [3d Dept 2009]). Although the party seeking the amendment "need not establish the merits of the proposed amendment" (Green Tree Servicing, LLC v Feller, 159 AD3d 1246 [3d Dept 2018] [inner quotation marks and citation omitted]), such a motion should nevertheless be denied where the lack of merit is "clear and free from doubt" (Lucido v Mancuso, 49 AD3d 220, 226 [2d Dept 2008]; see also Gulfstream Anesthesia Consultants, P.A. v Cortland Regional Med. Ctr., Inc., 165 AD3d 1430, 1433 [3d Dept 2018]). Applying these principals, the Court will briefly examine the proposed defenses.

Highway planning, design and maintenance are proprietary functions arising from the State or municipality's duty to keep its roads in a reasonably safe condition (see Turturro v City of New York, 28 NY3d 469, 479 [2016]). In such cases, the State is afforded qualified immunity "where a duly authorized public planning body has entertained and passed on the very same question of risk as would ordinarily go to the jury" (Weiss v Fote, 7 NY2d 579, 588 [1960], rearg denied 8 NY2d 934 [1960]). Where a traffic study or plan has been performed, liability may only be imposed where the study is inadequate or there was no reasonable basis for the traffic plan adopted. An unjustifiable delay in implementing a traffic plan will also support a finding of liability (Friedman v State of New York, 67 NY2d 271, 284-286 [1986]). Considering the claimant's allegations here arise from the performance of the State's proprietary function of designing and maintaining its roads in a reasonably safe condition, the defendant's first proposed immunity defense is well founded.

Claimant contends in response to the motion only that additional discovery is necessary in the event the Court grants defendant's motion to amend. However, claimant's counsel has failed to identify the specific discovery required, and defense counsel indicates that discovery relating to the basis for its highway planning decisions has previously been provided in a companion action in the Supreme Court. Defendant's motion to amend its answer to add its proposed qualified immunity defense (defendant's Exhibit D, 17) is therefore granted, and the Court will schedule a conference to determine what additional discovery, if any, may be necessary.

Unlike the qualified immunity available in the context of highway design and planning decisions, the defendant's proposed governmental function immunity defense (defendant's Exhibit D, 18) applies where the conduct complained of arises from the exercise of a governmental function, rather than a proprietary one. The defense applies where the acts of a governmental entity "are undertaken for the protection and safety of the public pursuant to the general police powers" (Turturro, 28 NY3d at 477-478 [internal quotation marks and citation omitted]). Where a governmental function is undertaken, no liability will attach where it involves a discretionary act resulting from the exercise of reasoned judgment (Turturro, 28 NY3d at 479; Valdez v City of New York, 18 NY3d 69, 75-77 [2011]; McLean v City of New York, 12 NY3d 194, 203 [2009]). Ministerial acts may be actionable, but only where it is shown that a particular claimant was owed a special duty, one greater than that owed the public in general (Tara N.P. v Western Suffolk Bd. of Coop. Educ. Servs., 28 NY3d 709, 715-716 [2017]; Applewhite v Accuhealth, Inc., 21 NY3d 420, 425 [2013]; McLean, 12 NY3d at 203). Where, as here, the conduct complained of arises from an alleged breach of the State's proprietary duty, a claimant has no obligation to prove special duty and the governmental function immunity defense is inapplicable (Turturro, 28 NY3d at 483). That being the case, the defendant's motion to amend its answer to add the governmental function immunity defense is denied.

Defendant also contends that its proposed immunity defenses implicate the subject matter jurisdiction of the Court of Claims, and that leave of court is not required to invoke such defenses. The Court disagrees. In Valdez, the Court of Appeals held that unlike the issue of duty, which is an element of claimant's negligence cause of action, governmental function immunity is an affirmative defense which must be timely raised to avoid the risk of waiver (18 NY3d at 76).

With respect to the defense of qualified immunity, the Court of Appeals in Weiss made clear that while the State waived the immunity it enjoyed solely by reason of its status as a sovereign,(1) it did not waive immunity for its reasoned highway planning decisions, explaining: "[t]he city's defense . . . rests not on any anachronistic concept of sovereignty, but rather on a regard for sound principles of government administration and a respect for the expert judgment of agencies authorized by law to exercise such judgment" (Weiss, 7 NY2d at 588). Thus, the Weiss Court held that notwithstanding the waiver of sovereign immunity effected through the adoption of Court of Claims Act 8, the State possesses defenses not available to private corporations and individuals, including qualified immunity for reasoned highway planning decisions. Other cases have also referred to qualified immunity as a defense rather than requiring the claimant to plead the lack of a deliberative planning determination as an element of his or her case (see e.g. Metz v State of New York, 20 NY3d 175, 179 [2012]; Brown v State of New York, 79 AD3d 1579, 1580 [4th Dept 2010], affd 31 NY3d 514 [2018]).

Pertinent to the determination are the provisions of CPLR 3018 (b), which require that "[a] party shall plead all matters which if not pleaded would be likely to take the adverse party by surprise or would raise issues of fact not appearing on the face of a prior pleading." Considering that the facts from which the qualified immunity defense arise are in the exclusive possession of the State, placing the burden on the defendant to allege the defense and prove the facts that give rise to it seems appropriate. While certain language in a few cases implies that claimant has the burden of proving that there was no reasonable basis for a municipality's highway planning decision (see e.g. Alexander v Eldred, 63 NY2d 460, 464 [1984] [one injured in a traffic accident arising from the lack of a stop sign must show that the municipality was negligent, that this negligence contributed to the accident and that "there was no reasonable basis for the municipality's inaction"]), the weight of authority suggests otherwise (see Weiss, 7 NY2d at 588; Brown, 79 AD3d at 1580; Turturro v City of New York, 77 AD3d 732 [2d Dept 2010]). Of course, it has been recognized that the defense of qualified immunity should generally come as no surprise to a claimant alleging improper highway design. Nevertheless, without knowledge of whether a particular planning determination was, in fact, the product of a governmental plan or study, claimants in such cases can not be expected to plead and prove that it was not. Accordingly, the Court finds that the burden to plead qualified immunity as an affirmative defense and prove the facts giving rise thereto resides with the State. Having no bearing on the subject matter jurisdiction of the Court of Claims, leave to amend the defendant's answer to add qualified immunity as an affirmative defense is necessary.

Accordingly, defendant's motion to amend its answer is granted to the limited extent of alleging qualified immunity as an affirmative defense (defendant's Exhibit D, 17) and defendant is directed to serve and file its amended answer within 20 days of the date this Decision and Order is filed.

A conference to determine whether or not additional discovery is necessary will be scheduled in the near future.

June 5, 2020

Saratoga Springs, New York


Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion dated February 28, 2020;
  2. Affirmation dated February 28, 2020, with Exhibits A-D;
  3. Affidavit in opposition sworn to April 30, 2020;
  4. Reply affirmation dated June 1, 2020, with Exhibit A.

1. The State's waiver of sovereign immunity is subject to compliance with the conditions set forth in Court of Claims Act 10 and 11 (see Court of Claims Act 8; Dreger v New York State Thruway Auth., 81 NY2d 721 [1992]). The failure to comply with these conditions results in a lack of subject matter jurisdiction (id., Lyles v State of New York, 3 NY3d 396 [2004]; Alston v State of New York, 97 NY2d 159 [2001]; Finnerty v New York State Thruway Auth., 75 NY2d 721 [1989]; Buckles v State of New York, 221 NY 418, 424 [1917]; Steele v State of New York, 145 AD3d 1363 [3d Dept 2016]).