Opinion
761 CA 20-01626
11-19-2021
Anahita ALIASGARIAN, Claimant-Appellant, v. STATE of New York, Defendant-Respondent.
LIPPES & LIPPES, BUFFALO (RICHARD J. LIPPES OF COUNSEL), FOR CLAIMANT-APPELLANT. LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FREDERICK A. BRODIE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
LIPPES & LIPPES, BUFFALO (RICHARD J. LIPPES OF COUNSEL), FOR CLAIMANT-APPELLANT.
LETITIA JAMES, ATTORNEY GENERAL, ALBANY (FREDERICK A. BRODIE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Claimant commenced this action seeking damages for injuries that she sustained when she was struck from behind by a bicycle. The accident occurred in the Town of Amherst at approximately 10:00 p.m. as claimant was walking on a sidewalk along a road that passes under I-290. Claimant asserted causes of action for negligence and public nuisance, based on allegations that the dark and unlit underpass constituted a dangerous condition. During a nonjury trial, the Court of Claims granted the motion of defendant, State of New York (State), for a directed verdict. Claimant now appeals from a judgment dismissing the claim, and we affirm.
Contrary to claimant's contention, the court did not err in granting the State's motion. " ‘It is well settled that a directed verdict is appropriate where the ... court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party’ " ( Bolin v. Goodman , 160 A.D.3d 1350, 1351, 76 N.Y.S.3d 282 [4th Dept. 2018] [internal quotation marks omitted]). Initially, we agree with claimant that the State is not entitled to qualified immunity because, in view of the New York State Department of Transportation's Policy on Highway Lighting, which was admitted into evidence, there is a rational process by which the trier of fact could find that there was "no reasonable basis" for the State's decision to not install lighting in the underpass ( Friedman v. State of New York , 67 N.Y.2d 271, 284, 502 N.Y.S.2d 669, 493 N.E.2d 893 [1986] ; see generally Bolin , 160 A.D.3d at 1351, 76 N.Y.S.3d 282 ). We nevertheless conclude, however, that the State is entitled to dismissal of the claim under the ordinary rules of negligence, which are applicable in the absence of a qualified immunity defense (see Brown v. State of New York , 31 N.Y.3d 514, 519, 80 N.Y.S.3d 665, 105 N.E.3d 1246 [2018] ; Turturro v. City of New York , 28 N.Y.3d 469, 479, 45 N.Y.S.3d 874, 68 N.E.3d 693 [2016] ). It is well established that, under the ordinary rules of negligence, the State breaches its nondelegable duty to keep its roadways reasonably safe " ‘when [it] is made aware of a dangerous highway condition and does not take action to remedy it’ " ( Brown , 31 N.Y.3d at 519, 80 N.Y.S.3d 665, 105 N.E.3d 1246, quoting Friedman , 67 N.Y.2d at 283, 502 N.Y.S.2d 669, 493 N.E.2d 893 ). Such a breach "proximately causes harm if it is a substantial factor in the [claimant's] injury" ( id. ). Here, the trial record is devoid of evidence that the State had actual or constructive notice of the allegedly dangerous condition. Likewise, there is no evidence in the trial record regarding how the accident occurred or whether the lighting conditions in the underpass were a substantial factor in the accident and thus were a proximate cause of claimant's injuries (see generally Brown , 31 N.Y.3d at 519, 80 N.Y.S.3d 665, 105 N.E.3d 1246 ). We therefore conclude that there is no rational process by which the factfinder could base a finding in favor of claimant with respect to her negligence cause of action, and thus the court did not err in granting the motion with respect to that cause of action. We further conclude that the court did not err in granting the State's motion with respect to the public nuisance cause of action inasmuch as the public nuisance cause of action was premised upon the State's alleged negligence, which claimant failed to establish (see Copart Indus. v. Consolidated Edison Co. of N.Y., Inc. , 41 N.Y.2d 564, 569, 394 N.Y.S.2d 169, 362 N.E.2d 968 [1977], rearg denied 42 N.Y.2d 1102, 399 N.Y.S.2d 1028, 369 N.E.2d 1198 [1977] ).
Finally, contrary to the further contention of claimant, the court did not abuse its discretion by refusing to admit in evidence certain photographs that purportedly showed the lighting conditions in the underpass on the night of the accident, inasmuch as claimant's testimony was equivocal with respect to whether the photographs fairly and accurately represented the condition of the underpass (see McGruder v. Gray , 265 AD2d 822, 822 [4th Dept 1999] ; cf. Lounsbury v. Yeomans , 139 A.D.3d 1230, 1232, 32 N.Y.S.3d 671 [3d Dept. 2016] ).