Marchese v State of New York

[*1] Marchese v State of New York 2012 NY Slip Op 52198(U) Decided on September 25, 2012 Ct Cl Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 25, 2012
Ct Cl

William Marchese, Claimant,

against

State of New York, Defendant.



117467



APPEARANCES:

For Claimant:

McCabe, Collins, McGeough & Fowler, LLP

by: Daniel McCabe, Esq.

For Defendant:

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

by: Kurt Robertson, Esq.

Alan C. Marin, J.

The defendant State of New York moves to dismiss the claim of William Marchese, who was working for his employer, J. A. Lee Electric, on a job which involved emergency telephone towers along the Clearview Expressway in Queens County.

In his deposition of August 20, 2010, Mr. Marchese, a journeyman electrician, described what occurred on the morning of November 20, 2008. Arriving at the job site around 9 a.m., claimant and a colleague were discussing their work for the day; the first order of business was closing a lane, which by permit could not be done until 10 a.m. A little before 10 a.m., Marchese walked back toward Lee Electric's attentuator truck, which was parked on the shoulder and that he and a co-worker would use to close the lane. Claimant was on the west shoulder of the [*2]

southbound Clearview Expressway, between the Long Island Expressway (LIE) and 53rd Avenue.

Before Marchese reached the truck, some 50 yards north of the telephone towers site, he fell into what he described as a three-foot deep hole - - "I was almost up to my waist." Claimant estimated the surface area of the hole as "two, two and a half feet by four feet" (aff sup, exh D, p. 21). Mr. Marchese said that the hole had been covered by leaves, noting that he had been at that spot several times before, but had not seen the condition. Marchese conceded that at the time he fell, there was a cone placed in the hole, but said that the cone was not visible.

According to the bill of particulars, claimant "intends to rely on Common Law and case law theories relating to negligence as have been enunciated by the courts of the state by way of precedent and as contained in the Pattern Jury instructions" (aff sup, exh C, ¶25). Presumably, claimant is referring to §200 of the Labor Law, which the Court of Appeals has described as a "codification of the common-law duty imposed upon an owner or general contractor to provide construction site workers with a safe place to work." Comes v New York State Elec. and Gas Corp., 82 NY2d 876, 877 (1993). The claimant must thus show the existence of a dangerous condition of which there was either actual or constructive notice that proximately caused his accident; notice is unnecessary if defendant created the dangerous condition. See Gordon v American Museum of Natural History, 67 NY2d 836 (1986); Lopez v Dagan, 98 AD3d 436 (1st Dept 2012).

Defendant, in support of its motion to dismiss, argues that: the City of New York is responsible for maintenance of the Clearview; the ownership of the "pull box" for which the hole was dug is in question (see below); there was no showing that the State had notice or created the condition; and claimant's own acts or omissions were the sole proximate cause of his accident - - with respect to a condition that was open and obvious.

In addition to Marchese's deposition, also submitted were the depositions of two engineers with the State Department of Transportation (DOT), Emilio Sosa and Osama Khalil (aff sup, exhs H and G). Mr. Sosa, a licensed professional engineer with a bachelor's degree in electrical engineering, had been with DOT for 30 years, the last ten of them as director of traffic operations in Region 10, Long Island, which covers Nassau and Suffolk counties. Prior to that, Sosa was the director of the Information for Motorists system ("Inform"), a messaging system to notify motorists of existing traffic problems on Long Island and in Queens, including portions of the Clearview Expressway.

Sosa explained that the hole in the Clearview shoulder was dug for a pull box, which he described as a concrete vault or cube used to run underground cables through, facilitate pulling cables and allow branching off to connect to equipment and provide power. It is undisputed that the pull box hole should have had a metal covering. It is the lack of a cover that was the dangerous condition at issue here - - irrespective of whether the cone that had been placed there was visible or not.

The State and its municipalities have a nondelegable duty to maintain their highways and roads in a reasonably safe condition and that duty includes the road's shoulders. Friedman v State of New York, 67 NY2d 271 (1986); Stiuso v City of New York, 87 NY2d 889 (1995). The Clearview Expressway in Queens County is part of the system of arterial highways established pursuant to Article 12-B of the Highway Law (§349-b et seq.), "State Arterial Highways Passing Through Cities." See specifically §349-f which designates the Clearview Expressway from the [*3]Throgs Neck Bridge to the Nassau Expressway as a New York City route covered by article 12-B.

Generally, for arterial highways within the City of New York, "the City is jointly responsible with the State for the safety of . . . [the] arterial highway." Gregorio v City of New York, 246 AD2d 275, 279 (1st Dept 1998); see Nowlin v City of New York, 81 NY2d 81 (1993)and Albanese v City of New York, 5 NY3d 217 (2005), although these three cases involved suits against the City of New York, not the State.

Subdivision 3.4 of Highway Law §349-c provides that once State construction or reconstruction of an arterial highway within the City of New York is complete, "jurisdiction" is returned to the City, although the State retains responsibility for maintenance and repair. See subdivisions 7 through 9 of §349-c. However, in order for the State to have such maintenance and repair responsibility, two requisites are necessary: (1) the highway in question must have actually been "constructed, reconstructed or improved" by the State; and (2) the State commissioner of transportation must have issued an official order declaring such highway "to be a part of such system of highways for such purposes of maintenance and repair," and such order must have been filed with the State Department of Transportation, the Department of State and the comparable office for the City of New York (Highway Law §349-d). See for example McCormick v State of New York, UID No. 2004-016-055 (Ct Cl, Marin, J., Sept 17, 2004).

In sum, the effect of Article 12-B with respect to jurisdiction in a given case can be less than clear cut. Nonetheless, the facts in this case show that the State has sufficient relationship to the Clearview situs to properly be a defendant in an action brought by Mr. Marchese. Khalil testified that "this opening in the shoulder was part of the [I]nform contract that was done in the 1980's" (aff sup, exh G, p. 28). Sosa emailed Khalil on March 10, 2009 that, "I do not believe this to be our facility based on the current as built plans and the description in the claim [of] the hole.' Though we do have a cable run in the area it goes parallel to the CVE" (aff opp, exh A).

Sosa was unsure (because it was within the City), but believed that in order to dig the pull box, the City had to obtain a permit from the State DOT.

The City of New York had contracted with Lee Electric to perform the job that Marchese was working on. There was nothing in the contract (C002828) that related to the pull box vault, but the City was required to obtain a permit from the State to allow Lee Electric to proceed. Sosa explained that both the City and State would run wires through the subject pullbox and assumed the recent Lee Electric project involved running wire underground, although "[i]n general, [the City and State] don't com[m]ingle" wires in the same pullbox. "They're kept separate." (Aff sup, exh H, p. 51).

The pullbox and vault initially had a metal cover. Evidence of post-accident remedial measures to prove negligence is of course inadmissible, but it can be used to show ownership or control,[FN1] and in 2010, the State secured a new cover for the pullbox (aff opp, exh B).

Osama Khalil, a professional engineer, had been with State DOT for 23 years as of his May 19, 2011 deposition and since 1995 had been the DOT's claims engineer. Mr. Khalil testified that the State had built the Clearview, but this exchange ensued: [*4]

"Q. The State of New York owns the Clearview Expressway, correct?

A. There's no clear answer to your question."

(Id., exh G, p. 19).

Mr. Khalil went on to indicate that, as noted above, the Clearview was part of the arterial system, built under state contract and that when it was completed, maintenance jurisdiction was transferred to the City of New York by official order, and thereafter, the State was to reimburse the City for maintenance. The agreement goes back to 1961,[FN2] was last updated in 1994 and supplemented in 2005. Khalil said that the City was in charge of the Clearview shoulder between 53rd Avenue and the Long Island Expressway. He said the City is supposed to maintain the roadway and shoulder and "whatever was built" (id., p. 12). According to Khalil, the City fills potholes, does the landscaping (including cutting grass, pruning trees and removing leaves), removes snow, sweeps, repairs guardrails, replaces missing signs, paints bridges and does some bridge repair.

Khalil stated that in 1996 because the City "was not doing its job," the State decided to let maintenance contracts, "but the city still is responsible for maintaining the highways" (id., p. 14). Khalil then said that as for the Clearview between 53rd Avenue and the LIE, no contract was given to any entity (excluding NYC) to maintain that portion of the road, although "in 1996, we let projects . . . to do pavement repairs, sign repairs, guardrail repairs. It's possible that our contractor did some work in these areas" (id., p. 15). When reviewing the records in March of 2009, the State's emails contained a statement from Mr. Sosa that "We have not done work in that area in a long time," and that they never had a call or complaint about it (aff opp, exh A).

Mr. Khalil pointed out that the State DOT does not have maintenance crews to go out into the field in Region 11 (New York City), as it does for Long Island. With that said, Khalil indicated that State and City highway maintenance personnel do talk to one another:

"Q. What is the maintenance unit? Are you familiar with that term?

A. [The] New York Department of Transportation maintenance unit . . . Yes. They also meet month to month with the City of New York to discuss any maintenance issues on the highway system."

(Aff sup, exh G, p. 33-34).

Khalil agreed that in discussions between the two entities, an issue about an uncovered pullbox on the shoulder of the Clearview could come up, although he had no specific knowledge thereof. Returning to Emilio Sosa's deposition testimony relating to the vault cover:

"A cover was more than likely on it at the beginning. At some point, the covers and frame could become dislodged by impact from something. Based upon how far off this is from the roadway, it wouldn't be a plow clearing the shoulder, but it could very well have been the trucks used to do work in the area that pulled off in a soft shoulder which is dirt and they could bump it and hit it [*5]without even knowing it. It could have very well been these guys [the previous] day."

(Id., exh H, p. 73).

Obviously, we do not know whose truck (or for that matter, trucks) forced the cover off the vault, assuming that is how it happened. It could have been a vehicle unaffiliated with the State, City of New York, or any of its contractors. However, notice would clearly seem to obtain, inasmuch as a cone was placed in the vault or hole. Given that some shared responsibility between the State and City has not otherwise been refuted, whose employee placed the cone may not be essential to our purposes here.[FN3]

Finally, defendant argues that the claim should be dismissed because the condition was open and obvious. Generally, that a condition is open and obvious will mean that the entity in charge of the premises will not have to warn about it, but the fact that it is readily observable with the ordinary use of the senses is not necessarily an absolute defense, but rather can support a finding of comparative negligence by the claimant.[FN4] That a condition is open and obvious can be an absolute defense when coupled with the fact that such condition is not inherently dangerous [FN5]; however, as this Court has concluded from the record: the pull box vault that Mr. Marchese fell into was a dangerous condition.

* * *In view of the foregoing and having reviewed the parties' submissions,[FN6] IT IS ORDERED that the motion (no. M-81570) by defendant State of New York to dismiss the claim of William Marchese (claim no. 117467) be denied.

New York, New YorkALAN C. MARIN

September 25, 2012Judge of the Court of Claims Footnotes

Footnote 1: See for example Del Vecchio v Danielle Associates,LLC, 94 AD3d 941 (2d Dept 2012).

Footnote 2: The transcript (exh G) at page 11, line 20 reads "1951"; it could have been misheard - - the order transferring jurisdiction is dated November 8, 1961 (aff sup, exh I (exh B)).

Footnote 3: The deposition testimony indicated that these warning cones usually bear identifying markings, although that information for this cone is not in the record. Khalil testified that the State's region covering the City of New York (Region 11) owns few or no cones, because Region 11 does not have work crews that are sent out into the field to perform specific maintenance tasks.

Footnote 4: Cupo v Karfunkel, 1 AD3d 48 (2d Dept 2003).

Footnote 5: Giambruno v Wilbur F. Breslin Development Corp., 56 AD3d 520 (2d Dept 2008) (concrete wheel stop in a parking lot); Lazar v Burger Heaven, 88 AD3d 591 (1st Dept 2011) (sidewalk café chair).

Footnote 6: The defendant submitted: a Notice of Motion for Summary Judgment, an Affirmation in Support of Motion for Summary Judgment together with exhibits A through I, and a Memorandum of Law in Support of the State of New York's Motion for Summary Judgment; a Reply Affirmation in Support of Motion for Summary Judgment. The claimant submitted: an Affirmation in Opposition together with exhibits A through C.