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Supreme Court, Appellate Division, Second Department, New York.

Pedro RUBIO, Appellant, v. STATE of New York, Respondent.


Decided: January 16, 2019

SHERI S. ROMAN, J.P., SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, HECTOR D. LASALLE, JJ. Zaremba Brown, PLLC, New York, N.Y. (Daniel T. Gluck of counsel), for appellant. Letitia James, Attorney General, New York, N.Y. (Steven C. Wu and Ester Murdukhayeva of counsel), for respondent.


In a claim to recover damages for personal injuries, the claimant appeals from a judgment of the Court of Claims (Stephen J. Mignano, J.), dated June 2, 2016.  The judgment, upon a decision of the same court dated April 19, 2016, made after a trial, is in favor of the defendant and against the claimant dismissing the claim.

ORDERED that the judgment is affirmed, with costs.

The claimant allegedly was injured when his bicycle hit a pothole on Route 119 in Tarrytown and he fell from his bicycle to the ground.  The claimant commenced this claim, alleging that the defendant, the State of New York, failed to maintain the roadway in a reasonably safe condition.  After a trial, the Court of Claims determined that the State did not create or have actual or constructive notice of the subject pothole, and the court thereafter entered a judgment dismissing the claim.  The claimant appeals.

The State has a nondelegable duty to maintain its roads and highways in a reasonably safe condition (see Friedman v. State of New York, 67 N.Y.2d 271, 502 N.Y.S.2d 669, 493 N.E.2d 893;  Jeffries v. State of New York, 148 A.D.3d 1125, 50 N.Y.S.3d 476;  Bednoski v. County of Suffolk, 145 A.D.3d 943, 44 N.Y.S.3d 485;  Chavez v. State of New York, 139 A.D.3d 994, 30 N.Y.S.3d 846).  However, no liability will attach unless the State had actual or constructive notice of the dangerous condition and subsequently failed to take reasonable measures to correct the dangerous condition (see Figueroa–Corser v. Town of Cortlandt, 107 A.D.3d 755, 967 N.Y.S.2d 744;  Asnip v. State of New York, 300 A.D.2d 328, 751 N.Y.S.2d 316;  Fowle v. State of New York, 187 A.D.2d 698, 590 N.Y.S.2d 280).

On appeal, the claimant contends that the determination of the Court of Claims that the State did not have constructive notice of the pothole was not warranted by the facts.  To provide constructive notice, “a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it” (Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774;  see Eksarko v. Associated Supermarket, 155 A.D.3d 826, 63 N.Y.S.3d 723;  Marinaro v. Reynolds, 152 A.D.3d 659, 59 N.Y.S.3d 87;  Mastroianni v. State of New York, 35 A.D.3d 674, 827 N.Y.S.2d 247).  Here, the court's determination was warranted by the facts.  The evidence adduced at trial failed to establish that the State had constructive notice of the alleged defect or that its procedure of inspecting the roadway by looking for apparent defects from the vantage point of a moving vehicle was unreasonable (see Harris v. Village of E. Hills, 41 N.Y.2d 446, 450, 393 N.Y.S.2d 691, 362 N.E.2d 243;  Fowle v. State of New York, 187 A.D.2d 698, 590 N.Y.S.2d 280).


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