Opinion
# 2015-016-010 Claim No. 121561 Motion No. M-85122
03-09-2015
GEORGE DEVITO v. THE STATE OF NEW YORK
Bailey & Sherman, P.C. By: Jeanne E. Forster, Esq. Eric T. Schneiderman, Attorney General By: Robert J. Schwerdt, AAG
Synopsis
Case information
UID: | 2015-016-010 |
Claimant(s): | GEORGE DEVITO |
Claimant short name: | DEVITO |
Footnote (claimant name) : | |
Defendant(s): | THE STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | 121561 |
Motion number(s): | M-85122 |
Cross-motion number(s): | |
Judge: | Alan C. Marin |
Claimant's attorney: | Bailey & Sherman, P.C. By: Jeanne E. Forster, Esq. |
Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Robert J. Schwerdt, AAG |
Third-party defendant's attorney: | |
Signature date: | March 9, 2015 |
City: | New York |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Defendant State of New York moves to dismiss George Devito's claim, which arose from his fall from an elevated roadway portion near the meeting of Astoria Boulevard and the Whitestone Expressway entranceway on July 29, 2010 at about 11 p.m. in Queens County.
Mr. Devito's claim provides that he was attempting to use a walkway that is something less than 110 feet where the two roads meet, but was "misdirected and/or misled" to the V-meeting point, where he fell fifteen feet through "a hidden, unguarded" opening that was "hidden by a piece of wood which gave way when [claimant] stepped upon it . . ." [Def affirm, exh A ¶ 22]. Such accident could have been prevented, argues claimant, with a "sign, barrier, marking or item of construction" to properly direct the pedestrian. [Cl affirm in opp, ¶ 16]. Mr. Devito also raised the issue of adequate lighting in his claim [¶ 16] and bill of particulars [cl affirm in opp, ¶ 8].
The 110 feet, according to claimant, is the distance to a light pole that is near the V-meeting of the roads. Exhibit A attached to the claim shows the light pole; the location where claimant fell through when crossing is marked with a "B" near the V-meeting point. The letter "A" in the lower left of the photo marks claimant's intended place of crossing.
The defendant submits the affidavit of Osama Khalil, the regional claims engineer of the New York City region for the State's Department of Transportation. Mr. Khalil states that the Northern Boulevard eastbound and Astoria Boulevard eastbound entrance ramps to the Whitestone Expressway were part of the State arterial highway system (Highway Law article 12-B) and that pursuant thereto, maintenance jurisdiction was the responsibility of the City of New York by agreement between the State and City. See generally, Albanese v City of New York, 5 NY3d 217 (2005).
Khalil's affidavit further provided that the walkway which Devito intended to use and that area, including the Citi Field parking lot, are not part of the State arterial system, and the State has no responsibility for the construction, design, signage, lighting or maintenance of such walkway. Further, there had been no State construction contracts in the location where Devito did cross (known as "Point B," see footnote 1). Finally, Khalil indicates that under the maintenance agreement, the City of New York is responsible for the maintenance and repair of lighting on such an arterial highway.
The engineer's affidavit is not effectively challenged by claimant's opposition papers, since maintenance responsibility has been assumed by the City of New York. But with that said, arguably, the State could potentially be responsible for a design feature or flaw of a road that it had constructed or rebuilt which proximately caused injury. The reference here to "sign, barrier, marking or item of construction" or for that matter, "flimsy piece of wood," is insufficient to that end.
See paragraphs 15 through 18 of defendant's affirmation in opposition.
Subject to qualified immunity per Weiss v Fote, 7 NY2d 579 (1960).
Paragraph 26 of claimant's Affirmation in Opposition.
In view of the foregoing, and having reviewed the submissions of the parties, IT IS ORDERED that motion No. M-85122 to dismiss claim No. 121561 be granted.
The following were reviewed: defendant's Notice of Motion and Affirmation (with exhibits A through C) and Affirmation in Reply; and claimant's Affirmation in Opposition (with exhibits A through G).
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March 9, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims