Dailey v New York State Thruway Auth.

[*1] Dailey v New York State Thruway Auth. 2012 NY Slip Op 51791(U) Decided on July 12, 2012 Ct Cl Ruderman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 12, 2012
Ct Cl

John Dailey and Barbara Dailey, Claimant(s)

against

New York State Thruway Authority, Defendant(s).



115946



Claimant's attorney: O'CONNELL & RILEY, ESQS.

By: James K. Riley, Esq.

Defendant's attorney: HON. ERIC T. SCHNEIDERMAN

Attorney General for the State of New York

By:Jyotsna Gorti, Assistant Attorney General

Terry Jane Ruderman, J.

The claim arises out of an accident that occurred on October 20, 2007 on the Mountainview Avenue bridge [FN1] which crosses over the New York State Thruway in the Village of Nyack (Nyack). The facts are essentially undisputed. Claimant, John Dailey (hereinafter Dailey),[FN2] was exiting a van parked on the bridge when he turned his ankle on a deteriorated curb and sidewalk. Claimants maintain that the New York State Thruway Authority (NYSTA) was negligent in its failure either to repair the area prior to Dailey's fall or to direct Nyack to make the necessary repair. The NYSTA concedes that it was aware of the condition; however the NYSTA maintains that it is not responsible for the maintenance of the curb and sidewalk; rather Nyack was the responsible party.

Dailey testified that he has been employed as a correction officer in the Rockland County Sheriff's office since 1998. On October 20, 2007, he was assigned to participate in the honor guard at the Brinks Memorial service in Nyack. Dailey traveled to the event with three other correction officers in a Sheriff's van generally used to transport inmates. Dailey was seated in the front passenger seat. As they approached the bridge, Dailey looked out the window and observed that they were adjacent to a sidewalk. Before exiting the van, Dailey did not see any deterioration of the curb or sidewalk. He opened the door and exited by placing his left foot on the van's step. He then attempted to put his right foot on the sidewalk when he twisted his ankle. Dailey braced himself on the door. He then looked at the sidewalk and curb and observed the deterioration.

Victor Overton testified that he has been employed by Nyack for 20 years and for the last eight years he has been its Supervisor of Public Works. Previously, he had been a motor equipment [*2]operator for Nyack. It was his understanding that the extent of Nyack's responsibility for the bridge was the maintenance of the wearing course or the road's surface.

Overton testified that in 2004 and 2005, Nyack undertook a maintenance project to repair the wearing course of the roadway; however when he realized the magnitude of the work to be performed, he contacted representatives of the NYSTA and requested their assistance regarding the more extensive repairs (T1:183).[FN3] Nyack had only 10 full-time employees in its Department of Public Works. The NYSTA responded by sending equipment and personnel. Photographs introduced into evidence depict the NYSTA and Nyack employees working together on the project (Exs. 14, 17, 19-20). Overton testified that during his tenure with Nyack, it had never maintained the sidewalk; nonetheless, Overton testified that before the NYSTA was involved, he had contemplated repairing the sidewalk as part of Nyack's repair project of the wearing course (T1:193). Overton reasoned that the repair should be done by the NYSTA because it had the ability to close lanes on the Thruway so that debris would not fall on the traffic beneath the bridge and he noted that the repair was ultimately done by the NYSTA.

Stephen Grabowski testified that he has been employed by the NYSTA since 1998 and has been Acting Director of the New York Division since October 2010. For the prior seven years, he was Deputy Division Director. The New York Division of the NYSTA includes the Thruway from New York City to New Paltz, the Cross-Westchester Expressway, I-95 to the Connecticut boundary and a short section of the Garden State Parkway. The New York Division covers the area at issue in this claim. In his current position, Grabowski is responsible for all maintenance and construction within the Division. As the Deputy Director, he was responsible for all maintenance within the Division. Grabowski has a Bachelor of Science degree in Civil Engineering and is a Professional Engineer, licensed in New York State. Grabowski was familiar with the Mountainview Avenue bridge. He has reviewed its plans, read the bi-annual inspection reports, and has been on the bridge.

Grabowski explained that the Thruway was constructed in the 1950's as a major artery from New York City to Buffalo. Since it crossed roads in municipalities across the state, overpasses or bridges had to be built to accommodate the flow of local traffic. The NYSTA retained ownership of the bridges that were constructed. His understanding was that the Public Authorities Law mandates split maintenance of these bridges. In Grabowski's words everything above the structural deck, the maintenance, is the responsibility of "the locals" and everything below the structural deck is the responsibility of the NYSTA (T2:35-37). Grabowski explained that the NYSTA has "access to everything below the bridge. So we're responsible for everything under the bridge. The locals have access to everything above the bridge, so their responsibility is to their patrons and to maintain everything above" (T2:45). He also noted that the NYSTA could arrange lane closures of the Thruway if necessary.

Upon completion of the construction project, the NYSTA sent the municipality a "reversion letter" dated January 3, 1957 advising the municipality of its continued responsibilities regarding the Mountainview Avenue Bridge (T2:37). The letter stated:

"It is our understanding of the law that all of the work including the highway under the Thruway, pavement, shoulders, slopes, guide railing, sidewalks and other appurtenances normally [*3]a part of the highway shall be maintained and kept in repair by the town. Furthermore, the control of ice and snow on this roadway is also the responsibility of the town.

The entire bridge structure carrying the Thruway over the road, together with its supports, will be maintained and kept in repair by the Thruway Authority (emphasis added)"

(Ex. A).

By letter dated December 1, 1992, the NYSTA informed the local municipalities of the recently enacted legislation amending the Public Authorities Law with respect to rehabilitation and reconstruction of certain local bridges crossing the Thruway (Ex. 29). While the NYSTA's responsibility for "major rehabilitation or reconstruction of bridge structures" was expanded, "[r]outine highway maintenance remains unchanged [emphasis in original]" (Ex. 29). The letter provided, "[a]ll features normally a part of the highway, including . . . sidewalks and other appurtenances shall continue to be maintained and kept in repair by the municipality. The roadway and sidewalk maintenance, . . . also remain the responsibility of the municipality [emphasis added]" (id.). By letter dated May 5, 1993 and copied to Nyack, the NYSTA confirmed that Nyack remained responsible for the maintenance of the Mountainview Avenue bridge (Ex. B).

Grabowski testified that New York State law requires bi-annual inspections of all publicly owned bridges, and, as the owner of the Mountainview Avenue bridge, the NYSTA conducts bi-annual inspections of that bridge. Grabowski testified that the NYSTA uses the reports to program maintenance repairs and that copies of the reports were sent to the municipalities and he presumed that the municipalities used the reports in a similar fashion to program their maintenance repairs (T2:239). Grabowski noted that the NYSTA inspection reports of 1996, 2000, 2002 and 2004 all indicated damaged sidewalk conditions (T2:71-77). In late 2002 to 2003, the NYSTA initiated a Capital Plan Project Proposal to undertake a major rehabilitation of the bridge which was beyond the scope of normal maintenance and would include repairs to the sidewalks and the wearing course (Ex. 8). The proposal was not copied to the municipalities.

Grabowski explained the procedure for capital projects, which generally take a minimum of three years from inception to completion. After a proposal is drafted, it becomes part of the NYSTA Capital Plan and then prioritized with other proposals. Funding considerations determine the start date. Detailed engineering plans are prepared once a project is accepted into the capital plan. Grabowski explained that when the NYSTA undertakes a capital plan, it completes all necessary work at the site. However, until the contractors actually begin their work, there is no change in the maintenance responsibilities of the municipality (T2:54). According to Grabowski, the NYSTA's plan proposal did not change Nyack's responsibility to maintain the sidewalks. The sidewalks remained the responsibility of Nyack until the work of the NYSTA began and was completed. Nyack would then continue to maintain the sidewalk after the work under the capital project was completed.

Grabowski recalled when Nyack requested the NYSTA's assistance to repair the wearing course that was illustrated in exhibits 1, 19 and 20. According to Grabowski, the NYSTA agreed to assist because it had the necessary equipment and adequate funding available. In that particular situation, given the condition of the wearing course, water seeping through the surface could have caused corrosion to the structural deck of the bridge; therefore Grabowski considered it a benefit to the NYSTA because he did not know when the capital plan for the bridge would begin (T2:57). [*4]Ultimately, NYSTA repaired the curb and sidewalk as part of the capital plain in 2009 to 2010 (T2:94-95).

Analysis

Upon consideration of all the evidence presented, including listening to the witnesses testify and observing their demeanor, and a review of the applicable statutory law and relevant case law, the Court finds that claimants did not meet their burden of proving that the NYSTA was negligent and that such negligence was a proximate cause of the accident. Indeed, the Court finds that claimants failed to establish that the NYSTA breached any duty owed with regard to the location in issue. Rather, the evidence established that, consistent with the applicable law, the NYSTA was not responsible for the situs; the maintenance and repair of the sidewalk and curb on the bridge fell within the responsibility of the municipality (see Highway Law §140[2], [18] [town shall maintain bridges and sidewalks]; Village Law §6-604 [maintenance and repair of bridge is a town responsibility unless the responsibility is assumed by the village]; Highway Law §233[1] [after State mandated inspection of bridge, the bridge has the same status regarding maintenance and liability as it had prior to inspection]).

In 1957, upon completion of the bridge, the NYSTA sent the municipality a reversion letter stating that the sidewalks "shall be maintained and kept in repair by the town" (Ex. A). This letter is "typical of the reversion letters routinely sent to local municipalities when road or bridge relocation work was completed" (see Village of Mamaroneck v Town of Rye, 45 AD3d 577, 578) and is consistent with Public Authorities Law §359(4) which provides that highways carried over a thruway section "shall, upon the completion of the work, revert to and become the responsibility, with regard to maintenance and repair, of the . . . municipality . . . formerly having jurisdiction there over" (see Carlino v County of Albany, 178 AD2d 772, 773 [upon completion of the work by the State Thruway Authority, the responsibility of maintenance and repair reverted back to the municipality formerly having such responsibility]). Here, reversion letters were sent to the municipality again in 1992 and 1993 confirming the reversion of responsibility of sidewalk maintenance to the municipality (Exs. B, 29).

The Court does not find claimants' argument persuasive that the NYSTA should be held liable because it gave "no nudge' or tickling' directed to Nyack" to warn pedestrians of the hazardous condition (Claimants' post-trial memo, p 28). The Court also rejects claimants' arguments regarding the NYSTA's required bi-annual inspections of the bridge as it is well-established that these mandated inspections do not effectuate an assumption of a duty to maintain the bridge's curbs and sidewalks (see Matter of Village of Chestnut Ridge v Howard, 92 NY2d 718, 722 [regular and systematic bridge inspection were not " . . . intended to effect any changes in the determination of which public entities bear responsibility for the actual repair and maintenance . . . "]). Rather, "[a]fter such inspection, the bridge . . . shall have the same status with respect to maintenance and liability as it had prior to the inspection" (Highway Law §233[1]).

In sum, the Court finds that claimants have failed to establish that the NYSTA breached any duty owed and therefore there is no basis for holding the NYSTA liable for the accident.

LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 115946. Footnotes

Footnote 1: The bridge was alternately referred to as the overpass.

Footnote 2: The claim of Barbara Dailey, claimant's wife, is derivative.

Footnote 3: References to the trial transcript of March 5, 2012 are preceded by "T1" and references to the March 6, 2012 transcript are preceded by "T2."