NEW YORK STATE NOT LIABLE FOR NOT CLEANING ROADWAY WHERE DEBRIS WENT THROUGH ACCIDENT VICTIM'S WINDSHIELD

YOUR CASE CAN BE LOST IF YOUR ACCIDENT LAWYER ISN'T COMPUTER LITERATECourt: Supreme Court, Appellate Division, Second Department, New York

Case: Farrell v. State of New York

Date: Oct. 4, 2011

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Brooklyn Queens Bronx; Brooklyn accident attorney)

Comment: A piece of roadway debris went through the accident victim's windshield. Not said, but implied in this decision, is that she didn't see the vehicle that threw the thing into and through her windshield, striking her face. This case holds that she does not have a claim against the State of New York for not keeping the highway clean. A good decision here case. And I say that as taxpayer as well as an attorney for accident victims.

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PLAINTIFF WHO FALLS IN STREET BUT CAN'T IDENTIFY DEFECT LOSES CASE ON SUMMARY JUDGMENT MOTION (Posted by Brooklyn accident attorney Gary E. Rosenberg on July 16, 2011)

YOUR CASE CAN BE LOST IF YOUR ACCIDENT LAWYER ISN'T COMPUTER LITERATE (Posted by Brooklyn accident attorney Gary E. Rosenberg on March 30, 2011)

NO "PERMISSIVE USE": CAR IN ACCIDENT DRIVEN WITHOUT PERMISSION, CAR OWNER (AND HER INSURANCE ) LET OUT OF ACCIDENT CASE (Posted by Brooklyn accident attorney Gary E. Rosenberg on July 11, 2011)

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CASE DISMISSED FOR NO PRIOR NOTICE OF ROADWAY DEFECT THAT THROWS MOTORCYCLE RIDER IN ACCIDENT (Posted by Brooklyn accident attorney Gary E. Rosenberg on May 21, 2011)

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In a claim to recover damages for personal injuries, the claimant appeals from a judgment of the Court of Claims (Scuccimarra, J.), dated July 6, 2010, which, upon a decision of the same court dated May 10, 2010, made after a nonjury trial on the issue of liability, is in favor of the defendant and against her dismissing the claim.

ORDERED that the judgment is affirmed, with costs.

During the morning of May 15, 2002, the claimant was injured while driving to work on the Manhattan‑bound Gowanus Expressway when a metal brake shoe went through her windshield and struck her in the face. As is relevant here, the claimant commenced this claim against the State of New York. After a nonjury trial on the issue of liability, the Court of Claims dismissed the claim, finding that the State was not negligent and that, in any event, any breach of a duty was not a proximate cause of the claimant's injuries. The claimant appeals from the judgment dated July 6, 2010, which dismissed the claim. We affirm.

In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and this Court may render the judgment it finds "warranted by the facts," bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses and hearing the testimony (Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809; see DePaula v. State of New York, 82 A.D.3d 827, 918 N.Y.S.2d 206; Bryant v. State of New York, 77 A.D.3d 875, 876, 909 N.Y.S.2d 385; Stevens v. State of New York, 47 A.D.3d 624, 625, 850 N.Y.S.2d 472; Domanova v. State of New York, 41 A.D.3d 633, 634, 838 N.Y.S.2d 644).

Here, the trial court's determination that the claimant failed to establish her claim to recover damages for personal injuries was warranted by the facts, and we decline to disturb it. Contrary to the claimant's contention, she failed to establish that the State breached its duty to maintain the highway in a reasonably safe condition (see Friedman v. State of New York, 67 N.Y.2d 271, 283, 502 N.Y.S.2d 669, 493 N.E.2d 893; Lopes v. Rostad, 45 N.Y.2d 617, 623, 412 N.Y.S.2d 127, 384 N.E.2d 673; Fiege v. State of New York, 189 A.D.2d 748, 592 N.Y.S.2d 421). Constructive notice of a dangerous condition may not be established through the State's general awareness that debris may exist on the highway (see Hart v. State of New York, 43 A.D.3d 524, 525, 840 N.Y.S.2d 468).

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