Opinion
# 2012-045-502 Claim No. 119430
03-21-2012
ROTH v. THE STATE OF NEW YORK
Synopsis
Motor vehicle swerved away from a pothole and struck a raised sewer grate causing property damage to the vehicle. Case information
UID: 2012-045-502 Claimant(s): ALEXANDRA ROTH Claimant short name: ROTH Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant (s): Claim number(s): 119430 Motion number(s): Cross-motion number(s): Judge: Gina M. Lopez-Summa Claimant's attorney: Mark Bradley Roth, Esq. Hon. Eric T. Schneiderman, Attorney General Defendant's attorney: By: Kimberly A. Kinirons and Terrance K. DeRosa, Assistant Attorneys General Third-party defendant's attorney: Signature date: March 21, 2012 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
A trial was held in this property damage matter on January 18, 2012. The subject claim arose on November 6, 2010 at approximately 11:30 a.m. when claimant, Alexandra Roth, swerved her vehicle to avoid a pothole located in the northbound entrance ramp of the Seaford Oyster Bay Expressway (Rte 135) at its intersection with Hempstead Turnpike.
Claimant testified that on the day of her accident she was driving a motor vehicle she owned westbound on Hempstead Turnpike. At approximately 11:30 a.m. she proceeded onto the northbound entrance ramp of Rte. 135 about 30 feet when she observed a pothole in the middle of the entrance ramp. She described the pothole as being 10 feet long, 4 feet wide and 6 inches deep. She stated that the last time she had driven on the entrance ramp was about 2 years prior to the accident. At the time of the accident it was a clear day and claimant was driving at about 30 miles per hour. She testified that she swerved to avoid the pothole and struck the metal sewer grate located on the curb of the entrance ramp. The top portion of the metal sewer grate protruded out from the curb. Claimant alleges in her claim that her motor vehicle was damaged in the amount of $1,132.60 due to the collision with the metal grate. After the accident claimant pulled over to the grassy area on the side of the entrance ramp and telephoned AAA. A police officer also passed by the scene of the accident and offered assistance to claimant.
Damages amount includes towing charges and other services.
The photographic evidence confirmed the existence of the pothole, the protruding sewer grate and damage to claimant's vehicle.
Claimant produced a paid repair bill in the amount of $869.00 as well as a paid towing receipt in the amount of $30.00.
Elizabeth Chemakkala, a New York State Department of Transportation (DOT) employee, confirmed that there was at least one pothole complaint for the location of the subject accident received by the DOT on April 1, 2010. Although she interpreted the DOT records in evidence as stating that a DOT maintenance crew went out to the subject location to repair a pothole, she could not state whether or not the DOT crew actually repaired the pothole in question.
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 (Friedman v State of New York, 67 NY2d 271 [1986]). 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 (id.). 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 [1978]; Brooks v New York State Thruway Authority, 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take reasonable measures to correct the condition (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see also Brooks v New York State Thruway Auth., supra at 768; Pesce v City of New York, 147 AD2d 537 [2d Dept 1989]). When an allegedly dangerous condition is at issue, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy the dangerous condition. To establish constructive notice, the "defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a defendant] to discover and remedy it ..." (see Gordon, 67 NY2d at 837 [citations omitted]).
"[W]hether [or not] a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case . . . [T]he width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" are all factors to be taken into consideration when analyzing whether the defect was a dangerous condition so as to create liability (Trincere v County of Suffolk, 90 NY2d 976, 977-978 [1997] [internal quotation marks and citations omitted]).
Claimant has established that a dangerous condition existed on the roadway at the time of the accident. The uncontroverted testimony as well as the photographic evidence supports a finding that the pothole was approximately 10 feet in length, 4 feet in width and at least 6 inches in depth at the time of claimant's accident.
Claimant has also established notice of the condition to defendant. The evidence presented at trial established that defendant received a complaint of a pothole at the location of the subject pothole 7 months prior to claimant's accident. In response, defendant's employees went out to the subject location in order to repair the pothole. However, defendant concedes that it does not know if the pothole was in fact repaired. Thus the Court finds that defendant had notice of the dangerous condition of the roadway and that it did not remedy the condition within a reasonable time prior to claimant's accident.
The Court finds that defendant's negligence was a substantial factor in the happening of this accident.
Therefore, based upon the foregoing, the Court finds that claimant has proven, by a preponderance of the credible evidence, her claim against defendant in this action.
However, it has also been established that the subject pothole was visible and apparent at the time of the accident. The accident occurred during daylight hours on a clear day. Claimant has a common-law duty to see that which she should have seen through the proper use of her senses (Domanova v State of New York, 41 AD3d 633 [2d Dept 2007]). Consequently, claimant's negligence was also a substantial factor in the happening of this accident.
Accordingly, the Court finds defendant 60% liable and claimant 40% liable for the happening of this accident.
Therefore, it is hereby ordered that claimant shall recover from defendant $540 with legal interest to begin running from the date of accrual, November 6, 2010 . Pursuant to Court of Claims Act § 11-a(2) claimant shall also recover the $50.00 filing fee paid to the Clerk at the commencement of the action.
The total amount of damages represents 60% of $869, the paid repair bills and 60% of $30, the towing costs.
See Court of Claims Act § 19(1).
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Any motions upon which the Court has previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
March 21, 2012
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims