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Supreme Court of New York, Appellate Division, Third Department
March 21, 2019, Decided ; March 21, 2019, Entered
[*1400] [**384] Lynch, J. Appeal from an order of the Court of Claims (Hard, J.), entered October 3, 2017, which denied claimant's motion for partial summary judgment.
Claimant is a bike shop owner and avid bicyclist. On April 29, 2015, he was leading a group of bicyclists on a 45-mile recreational bike ride. Less than five minutes after the ride started, claimant crashed and suffered serious injuries on State Route 209 in Ulster County. Claimant filed this claim alleging, among other things, that defendant's failure to properly maintain and repair the road caused his accident. Once [*1401] discovery was completed, claimant moved for summary judgment on the issue of liability. The Court of Claims denied the motion, and claimant appeals.
] "[D]efendant owes the public a nondelegable duty to maintain its roadways in a reasonably safe condition" (Rockenstire v State of New York, 135 AD3d 1131, 1132, 23 NYS3d 675 ). "[W]here [defendant] has actual or constructive notice of a hazardous condition [***2] and fails to take reasonable measures to remedy the danger," it may be liable for resulting injuries (id.; see Friedman v State of New York, 67 NY2d 271, 286, 493 NE2d 893, 502 NYS2d 669 ; Gray v State of New York, 159 AD3d 1166, 1167, 72 NYS3d 208 ). Defendant is not, however "required to act as an insurer against all accidents" (Harjes v State of New York, 71 AD3d 1278, 1279, 896 NYS2d 248 ).
Claimant's submissions in support of his motion for partial summary judgment included photographs of the roadway where he fell from his bicycle, roadway repair records and deposition testimony by engineers employed by the Department of Transportation (hereinafter DOT). Claimant also submitted affidavits by N. James Tomassetti, a bicyclist in the group who witnessed claimant's accident, William Fitzpatrick, an engineer with an expertise in traffic operations and accident reconstruction, and Timothy G. Joganich, an expert in the field of bicycle safety and bicycle accident reconstruction.
Tomassetti explained that he was fifth in line behind claimant as they rode from an overpass exit ramp onto Route 209. Because there was a "fair amount of traffic" on [****2] Route 209, the group had to ride in the far-right lane, which was in "bad shape." He recalled that he saw claimant first point to warn those behind him that there was a condition in the road and then fall, "seconds later." He recalled that claimant [***3] rode over three bumps in the road that were immediately followed by an area under the overpass that was "almost the entire width of the lane and it was completely eroded, uneven and choppy." According to Tomassetti, the shadow from the overpass made the condition difficult to see, and claimant could not avoid it by riding on the shoulder because it was covered with debris.
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170 A.D.3d 1400 *; 96 N.Y.S.3d 383 **; 2019 N.Y. App. Div. LEXIS 2206 ***; 2019 NY Slip Op 02188 ****; 2019 WL 1283814
[****1] David A. Schleede, Appellant, v State of New York, Respondent.
claimant, repair, delamination, notice, shoulder, bumps, hazardous condition, summary judgment, debris
Governments, Public Improvements, Bridges & Roads, State & Territorial Governments, Claims By & Against, Torts, General Premises Liability, Dangerous Conditions, Known Dangers, Courts, Courts of Claims