Opinion
2017–05609
11-27-2019
W.M. MOVERS, INC., Appellant, v. STATE of New York, Respondent. (Claim No. 122929)
Raneri, Light & O'Dell, PLLC, White Plains, N.Y. (Sarah Tuttle of counsel), for appellant. Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Mark S. Grube of counsel), for respondent.
Raneri, Light & O'Dell, PLLC, White Plains, N.Y. (Sarah Tuttle of counsel), for appellant.
Letitia James, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Mark S. Grube of counsel), for respondent.
MARK C. DILLON, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, BETSY BARROS, JJ.
DECISION & ORDER In a claim to recover damages for injury to property, the claimant appeals from a judgment of the Court of Claims (Debra A. Martin, J.), dated October 21, 2016. The judgment, upon a decision of the same court dated September 6, 2016, made after a trial, is in favor of the defendant and against the claimant dismissing the claim.
ORDERED that the judgment is affirmed, with costs.
The claimant owned a truck which was damaged when the claimant's employee drove into a downed a tree following Hurricane Sandy in October 2012. The claimant commenced this claim to recover damages for injury to property, alleging that the State was negligent in failing to remove the fallen tree or to warn motorists of the tree. Following a nonjury trial, the Court of Claims, in a decision dated September 6, 2016, found that the State did not have actual or constructive notice of the allegedly hazardous condition prior to the accident. Thereafter, the court issued a judgment dated October 21, 2016, in favor of the defendant and against the claimant dismissing the claim. The claimant appeals.
" ‘In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony’ " ( Rodriguez v. State of New York, 166 A.D.3d 922, 923, 85 N.Y.S.3d 883, quoting DePaula v. State of New York, 82 A.D.3d 827, 827, 918 N.Y.S.2d 206 [internal quotation marks omitted]; see Lucas v. State of New York, 155 A.D.3d 710, 711, 64 N.Y.S.3d 264 ; Chavez v. State of New York, 139 A.D.3d 994, 994–995, 30 N.Y.S.3d 846 ).
"The State, while not an insurer of the safety of its roads, has a nondelegable duty to maintain its roads in a reasonably safe condition" ( Rodriguez v. State of New York, 166 A.D.3d at 923, 85 N.Y.S.3d 883 [citation and internal quotation marks omitted]; see Friedman v. State of New York, 67 N.Y.2d 271, 286, 502 N.Y.S.2d 669, 493 N.E.2d 893 ; Chavez v. State of New York, 139 A.D.3d at 995, 30 N.Y.S.3d 846 ). "The State's duty to maintain its roadways in a reasonably safe condition encompasses those trees, adjacent to the roads, which could reasonably be expected to pose a danger to travelers" ( Asnip v. State of New York, 300 A.D.2d 328, 328, 751 N.Y.S.2d 316 ; see Collado v. Incorporated Town and/or Vil. of Freeport, 6 A.D.3d 378, 379, 774 N.Y.S.2d 190 ; Leach v. Town of Yorktown, 251 A.D.2d 630, 630–631, 676 N.Y.S.2d 209 ). " ‘To prove that the State was negligent in the maintenance of its roadway, a claimant must demonstrate the existence of a dangerous condition of which the State was actually or constructively aware and which it failed to take reasonable measures to correct’ " ( Rodriguez v. State of New York, 166 A.D.3d at 923, 85 N.Y.S.3d 883, quoting Chavez v. State of New York, 139 A.D.3d at 995, 30 N.Y.S.3d 846 ).
Contrary to the claimant's contention, the testimony of New York State Department of Transportation employee Raymond Rhodes was not "impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory" ( Ausch v. St. Paul Fire & Mar. Ins. Co., 125 A.D.2d 43, 49, 511 N.Y.S.2d 919 [internal quotation marks omitted] ). The determination of the Court of Claims that the State did not have actual or constructive notice of the fallen tree at issue was warranted by the evidence (see Rubio v. State of New York, 168 A.D.3d 892, 893, 91 N.Y.S.3d 461 ; Atkins v. State of New York, 123 A.D.3d 644, 644, 998 N.Y.S.2d 421 ).
DILLON, J.P., MALTESE, DUFFY and BARROS, JJ., concur.