ECKERT v. STATE (2004)

In a claim to recover damages for personal injuries, etc., the claimants appeal from (1) a decision of the Court of Claims (Mignano, J.), dated February 6, 2003, and (2) a judgment of the same court dated February 25, 2003, which, after a trial on the issue of liability, dismissed the claim.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

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 N.Y.2d 966, 968, 665 N.Y.S.2d 613, 688 N.E.2d 487;  see Respass v. City of New York, 288 A.D.2d 286, 733 N.Y.S.2d 210;  Gonzalez v. County of Suffolk, 228 A.D.2d 411, 643 N.Y.S.2d 651).

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, 665 N.Y.S.2d 613, 688 N.E.2d 487;  Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937).   Here, the injured claimant failed to establish the existence of a special relationship between himself and the State.   Accordingly, the claim was properly dismissed.