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QUESTIONS OF FACT WHETHER STATE HAD CONSTRUCTIVE NOTICE OF THE CONDITION OF THE ROAD WHICH ALLEGEDLY CAUSED PLAINTIFF’S BICYCLE ACCIDENT (THIRD DEPT).

The Third Department determined claimant’s motion for summary judgment in this bicycling accident case was properly denied. There were questions of fact whether the state had constructive notice of the road conditions which allegedly caused the accident:

There was no evidence that defendant had actual notice of this hazard and only conflicting evidence regarding constructive notice. Savoury testified that there had been no prior complaints or accidents and that the road was regularly inspected . However, defendant may be charged with constructive notice of the hazard if it “existed for a sufficient period of time to allow defendant[] to discover and rectify the problem” … . Although most of the witnesses attributed the bumps to the effects of cars driving over cold patch and the delamination to the effects of the freeze/thaw cycle, evidence regarding the length of time that the bumps and delaminated section were present was equivocal, and there was no evidence regarding how long the debris had been on the shoulder … . Even if defendant had actual or constructive notice of the hazardous condition, claimant’s submissions evince that temporary repair work had been done in the months leading up to the accident, and the submissions fail to demonstrate what “reasonable [corrective] measures” should have been taken given the circumstances … . Given the myriad factual questions presented, including whether defendant had notice of the hazardous condition in the highway but failed to respond with appropriate maintenance measures, the Court of Claims properly denied claimant’s motion. Schleede v State of New York, 2019 NY Slip Op 02188, Third Dept 3-21-19

 

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