| Guzov v State of New York |
| 2008 NY Slip Op 01711 [48 AD3d 751] |
| February 26, 2008 |
| Appellate Division, Second Department |
| Debra Guzov, Appellant, v State of New York,Respondent. |
—[*1] Andrew M. Cuomo, Attorney General, Albany, N.Y. (Peter H. Schiff and Michael S. Buskusof counsel), for respondent.
In a claim to recover damages for wrongful death, the claimant appeals from a judgment ofthe Court of Claims (Lack, J.), dated August 3, 2006, which, after a nonjury trial on the issue ofliability, dismissed the claim.
Ordered that the judgment is affirmed, with costs.
On August 5, 2001 the claimant's decedent was killed when he drove his vehicle off asegment of Route 27A, also known as Montauk Highway, in Bay Shore and struck boulders thathad been placed approximately 15 feet from the outer edge of the paved highway. The bouldershad been placed there no later than 1986 by the then owner of the private property adjacent to thehighway. The claimant alleged that by failing to remove the boulders, the State of New Yorkfailed to maintain and repair Montauk Highway in violation of Highway Law § 12. TheCourt of Claims dismissed the claim, holding, inter alia, that the defendant was not obligated toapply modern highway design standards to Montauk Highway, which was constructed decadesprior to the decedent's accident. We affirm, for different reasons.
"[C]ompliance with design standards adopted after the construction of a highway is notrequired unless the municipality undertakes 'significant repair or reconstruction' that wouldprovide an opportunity for compliance with the new standards" (Cave v Town of Galen,23 AD3d 1108, 1108-1109 [2005] [citation omitted]; see Preston v State of New York,6 AD3d 835 [2004]). At the trial, the [*2]claimant's accidentreconstruction expert testified that after the boulders were placed next to Montauk Highway butbefore the decedent's accident, the highway was changed from a four-lane bidirectional highwayto a two-lane bidirectional highway divided by a new, dual-use center left turn lane. As "amodernization or correction of the road . . . is the sine qua non of a reconstructionproject" (Benjamin v State of New York, 203 AD2d 629, 630 [1994]), thereconfiguration of the highway to reduce the number of total lanes and create a dual-use left turnlane constituted a reconstruction which presented the State with the opportunity to ensure that thehighway was compliant with new design standards (see Cave v Town of Galen, 23 AD3d1108 [2005]).
However, the claim was properly dismissed because the defendant's failure to remove theboulders did not violate the guidelines established by the New York State Manual for HighwayDesign. Credible evidence at trial established that the speed limit at the location of the accidentwas 40 miles per hour and the average daily traffic in that location totaled over 6,000 vehicles.Given these circumstances, the State was required to maintain a minimum "clear zone," orshoulder area adjacent to the paved highway, of 14 to 16 feet. Since the boulders were locatedapproximately 15 feet from the edge of the roadway, the relevant design standards were notviolated (see Schwartz v New York State Thruway Auth., 61 NY2d 955, 956 [1984];Boyd v State of New York, 103 AD2d 882, 883 [1984]).
The claimant's remaining contentions are without merit. Rivera, J.P., Santucci, Covello andBalkin, JJ., concur.