McCormick v. State

• Decision Date: 29 January 1976
• Docket Number: No. 58056--A,58056--A
• Citation: 378 N.Y.S.2d 991,51 A.D.2d 28
• Parties: Barbara C. McCORMICK et al., Appellants, v. STATE of New York, Respondent. Claim
• Court: New York Supreme Court — Appellate Division

Page 991

378 N.Y.S.2d 991

51 A.D.2d 28

Barbara C. McCORMICK et al., Appellants, v. STATE of New York, Respondent.

Claim No. 58056--A.

Supreme Court, Appellate Division, Third Department.

Jan. 29, 1976.

Richard S. Scanlan, White Plains, for appellants.

Louis J. Lefkowitz, Atty. Gen. (J. Lawson Brown and Ruth Kessler Toch, Albany, of counsel), for respondent.

Before HERLIHY, P.J., and GREENBLOTT, KOREMAN, MAIN and REYNOLDS, JJ.

GREENBLOTT, Justice.

On August 31, 1973, while claimant Barbara McCormick was driving along the Taconic State Parkway, a rock from an embankment overlooking the highway fell onto the road immediately in front of her vehicle, causing an accident. Numerous injuries resulted. On November 28, 1973, claimants filed a claim against the State of New York alleging that they had sustained damages 'by reason of the negligence of the State of New York in constructing, maintaini and supervising the highway known as Taconic State Parkway'.

The Taconic State Parkway was built in the 1930's by the State of New York. In 1960 the East Hudson Parkway Authority was created to operate and maintain various highways including the Taconic State Parkway system. (Public Authorities Law, art. 2, tit. 11.) The Court of Claims has been granted exclusive jurisdiction 'to hear and determine claims of any person against the authority for Its tortious acts and those of its agents in the construction, reconstruction, improvement, operation or maintenance of the Taconic state parkway system * * * in the same manner and to the extent provided by and subject to the provisions of the court of claims act with respect to claims against the state * * *' (Public Authorities Law, § 469--a). In the present case no claim or notice of intention to file a claim was served on any officer of the East Hudson Parkway Authority within 90 days, as required by section 10 of the Court of Claims Act. The only service was upon the Attorney General, who is not authorized to receive service on behalf of the East Hudson Parkway Authority. Subsequent to pretrial discovery proceedings, the State moved to dismiss the claim, and the claimants cross-moved for permission to amend their claim so as, Inter alia, to include the East Hudson Parkway Authority as a defendant, and to allege negligence in design in addition to negligence in construction, maintenance and operation as a basis for their cause of action. The Court of Claims granted the motion to dismiss the claim and denied the claimants' motion to amend.

The Court of Claims found that claimants had failed to comply with the provisions of section 50--e of the General Municipal Law with regard to timely service. Section 50--e of the General Municipal Law is made applicable by section 469 of the Public Authorities Law which deals with liability of the East Hudson Parkway Authority for torts in connection with the Westchester County Parkway system. Liability for tortious acts dealing with the Taconic State Parkway is, as previously noted, dealt with under section 469--a which invokes the provisions of the Court of Claims Act. The result, however, is the same since the previously referred to section 10 of the Court of Claims Act requires service in a manner similar to the service required under the General Municipal Law, and in the instant case, since the requisite service was not had, it was proper for the court to dismiss the claim against the defendant East Hudson Parkway Authority and to refuse to permit the claim to be amended to include the Authority as a defendant. (See, Cantor v. State of New York, 43 A.D.2d 872, 351 N.Y.S.2d 197.)

We are of the view, however, that the Court of Claims erred in part in completely dismissing the claim against the State. The East Hudson Parkway Authority is an autonomous public corporation, with an existence separate and independent from the State, and with the power to sue and be sued (Public Authorities Law, § 453, subd. 1; compare Cantor v. State of New York, supra), and, since it is the Authority which is statutorily bestowed with the power to maintain and operate the Taconic State Parkway, it is the Authority which must answer for negligence in the performance of those duties. The same is true, of course, for any construction, reconstruction, or the like of the Taconic State Parkway done By the Authority. In the present case, however, it is alleged that the claimants' injuries were the results of negligence in the Parkway's initial construction prior to the Authority's existence. Since that construction was done by the State of New York, and since the Authority is only liable for 'its tortious acts and those of its agents' (Public Authorities Law, § 469--a), to hold that no cause of action for negligent construction is stated against the State would lead to the absurd and unintended result that negligence in the construction of the Taconic State Parkway prior to the date the Authority came into being is Damnum absque injuria. We cannot reach such a conclusion. Such other defenses as the State may interpose need not detain us here; we merely hold that since the State is alleged to have been negligent in having constructed the highway in a manner resulting in claimants' injuries, a cause of action has been stated.

It is also alleged in the amended claim that the State was...