Eckert v. State, 2003-02146
| Decision Date | 12 January 2004 |
| Docket Number | 2003-02147,2003-02146 |
| Citation | 771 N.Y.S.2d 132,3 A.D.3d 470,2004 NY Slip Op 00129 |
| Parties | RICHARD ECKERT et al., Appellants, v. STATE OF NEW YORK, Respondent. (Claim No. 100921.) |
| Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the respondent.
The claimants allege, among other things, that the State of New York was negligent in having its police officers fail to replace extinguished road flares at the scene of an accident, and failed to take other reasonable measures to warn drivers of the accident. However, traffic regulation, including the placement of road flares, "is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers" (Balsam v Delma Eng'g Corp., 90 NY2d 966, 968 [1997]; see Respass v City of New York, 288 AD2d 286 [2001]; Gonzalez v County of Suffolk, 228 AD2d 411 [1996]).
It is well settled that a municipality cannot be held liable for negligence in the performance of a governmental function unless a special relationship exists between the municipality and the injured party (see Balsam v Delma Eng'g Corp., supra at 967; Cuffy v City of New York, 69 NY2d 255, 260 [1987]). Here, the injured claimant failed to establish the existence of a special relationship between himself and the State. Accordingly, the claim was properly dismissed.
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