Lynch, Jr. v. State of New York

• Decision Date: 27 February 2007
• Docket Number: 2005-10593.
• Citation: 2007 NY Slip Op 01691,37 A.D.3d 772,831 N.Y.S.2d 228
• Parties: CORNELIUS LYNCH, JR., et al., Appellants, v. STATE OF NEW YORK, Respondent.
• Court: New York Supreme Court — Appellate Division

37 A.D.3d 772

831 N.Y.S.2d 228

2007 NY Slip Op 01691

CORNELIUS LYNCH, JR., et al., Appellants, v. STATE OF NEW YORK, Respondent.

2005-10593.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided February 27, 2007.

In a claim to recover damages for personal injuries, etc., the claimants appeal from a judgment of the Court of Claims (Lack, J.), dated October 20, 2005, which, after a nonjury trial on the issue of liability, and upon a decision of the same court dated September 23, 2005, dismissed the claim.

Ordered that the judgment is affirmed, with costs.

The evidence at trial showed that the injured claimant, who was a tow truck operator, responded to the scene of an accident on a New York State parkway, where a disabled vehicle was located on the center median. When the injured claimant arrived, a State Trooper who had responded to the accident scene stopped the oncoming traffic, thereby allowing the injured claimant to drive over to the median with his tow truck, and park in front of the disabled vehicle. The oncoming traffic then started to flow again.

After standing for several minutes on the median, the State Trooper told the injured claimant that it was "okay" to hook the disabled vehicle up to the tow truck. The injured claimant then proceeded to the back of the tow truck to do so when he was injured by an oncoming vehicle, which drove on to the median and collided with the tow truck.

The injured claimant brought the instant claim against the State of New York, seeking to recover damages for his personal injuries. According to him, the State Trooper was negligent in failing to set up road flares in a manner that would have blocked off the oncoming traffic, and thus protect the claimant from such traffic.

The claim ultimately proceeded to a nonjury trial on the issue of liability, after which the trial court dismissed the claim on the ground that 17 NYCRR 190.9 "immunized" the State from liability for the injured claimant's injuries. However, as the State correctly concedes, the trial court improperly relied on 17 NYCRR 190.9, as the State never asserted it as a defense (see Shepardson v Town of Schodack, 83 NY2d 894, 895 [1994]; Kolkmeyer v Westhampton Taxi & Limo Serv., 261 AD2d 587, 588 [1999]). Moreover, 17 NYCRR 190.9 has no application to the instant matter, as the regulation merely placed certain indemnification obligations on the injured claimant's employer and, in any event, only applies to accidents occurring "during the operation of" tow trucks (cf. Matter of New York Cent. Mut. Fire Ins. Co. [Hayden—Allstate Ins. Co.], 209 AD2d 927, 928).

Despite the trial court's erroneous reasoning, however, we affirm the judgment dismissing the claim. "In a case tried without a jury, this Court's inquiry `is as broad as that of the trial court,' and this Court may render a judgment it finds warranted by the facts, taking into account in a close case the fact that the trial judge had the...