DEPARTMENT OF TRANSPORTATION, # 2021-028-521, Claim No. 135481, Motion No. M-96604
|Claimant(s):||EDUARDO GARCIA, C.R., an infant by his mother and natural guardian GUILLERMINA ZEPEDA RODRIGUEZ and GUILLERMINA ZEPEDA RODRIGUEZ, individually|
|Claimant short name:||GARCIA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK and NEW YORK STATE
DEPARTMENT OF TRANSPORTATION
|Footnote (defendant name) :||The caption of the action has been changed to reflect the only proper defendant.|
|Judge:||RICHARD E. SISE|
|Claimant's attorney:||ELEFTERAKIS, ELEFTERAKIS PANEK
BY: Nicholas Elefterakis, Esq.
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Felice V. Torres
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 26, 2021|
|See also (multicaptioned case)|
The following papers were read on Defendant's motion to dismiss pursuant to CPLR 3211:
1. Notice of Motion filed March 16, 2021;
2. Affirmation of Felice V. Torres affirmed March 16, 2021 with Exhibits A-D annexed.
Filed papers: Claim, Answer
Defendant has moved to dismiss the claim on the basis that the State of New York does not own, manage or maintain the area where the underlying accident occurred. Claimant has not opposed the motion.
The claim arises from an incident on October 4, 2020 when a falling "tree/tree limb/tree branch"struck a vehicle being operated by claimant Eduardo Garcia on the Major Deegan Expressway exit ramp to Eadt 233rd Street in Bronx County. Claimants Eduardo Garcia and C. R., an infant, are alleged to have suffered personal injuries in the accident while the claim by Guillermina Zepeda Rodriguez is for loss of services.
In support of the motion defendant has submitted an affidavit of Prakash Roy, a Claims Engineer in the New York City regional office of the State Department of Transportation. According to Roy, he caused a search to be conducted of the records of the Department of Transportation and determined that the landscaping, including the trees, located at or adjacent to the Major Deegan exit ramp at 233rd Street, Bronx, was not owned, managed or maintained by the State on or prior to October 4, 2020. According to Roy, a review of the State of New York Department of Public Works Official Order No. 267 shows that jurisdiction of the landscape areas of the Major Deegan Expressway lies within the City of New York and remains the responsibility of the City of New York. Inasmuch as the State of New York had no responsibility for the place where the accident occurred, the court is without jurisdiction and the claim should be dismissed.
Accordingly, it is
ORDERED, that the motion is granted and the claim is dismissed.
May 26, 2021
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims