Farugio v State of New York

Court of Claims

Decided on June 26, 2026

Claim No. 139465

Linda K. Mejias-Glover, J.

Defendant moves by Notice of Motion to Dismiss dated July 3, 2025, seeking an order dismissing the Claim pursuant to CPLR 3212. Claimant, Joseph Farugio, moves by Cross-Motion dated September 4, 2025, seeking an order directing that summary judgment be entered in favor of the Claimant pursuant to CPLR 3212. Claimant opposed Defendant's motion, and Defendant declined its opportunity to oppose Claimant's cross-motion or reply to Claimant's opposition.

Now, having carefully reviewed the papers and exhibits filed, Claimant's motion is denied, and Defendant's motion is denied for the reasons more specifically set forth hereinbelow.

RELEVANT PROCEDURAL BACKGROUND

The Claim, filed on July 11, 2023, alleging that "[o]n May 21, 2023 at approximately 1:00 PM, while the [Claimant] was a pedestrian, he did trip and fall over what is believed to be a raised metal sign mounting bracket located in the grass on the southerly side of Veterans Memorial Highway, a.k.a. NY-454, in the Hamlet of Commack, Township of Smithtown, County of Suffolk, State of New York. Said incident site is more specifically located within the grass approximately 210 feet north westward of the easterly most entrance to the Veterans Memorial Plaza on the south side of Veterans Memorial Highway, approximately 40 feet southeastward of the easterly most entrance to the 76 Gas Station and on the south side of NY - [*2]545 more specifically to the north of the LA Fitness gym having an address of 68 NY - 454, Commack, NY 11725."

On August 9, 2023, Defendant filed a Verified Answer. Discovery was completed and Claimant filed the Note of Issue on May 5, 2025.

RELEVANT FACTS AND POINTS OF COUNSEL

The following facts are undisputed: Claimant, Joseph Farugio, testified that on the date of the incident he had been sleeping in his car in the parking lot of the L.A. Fitness shopping center in Commack, New York. He intended to take a bus to work while leaving his car in the parking lot for his daughter to use after her gym shift.

Immediately before the incident, Claimant walked from the Dollar Tree store across the shopping center parking lot and through a hedgerow toward a bus stop along Veterans Memorial Highway. While walking on the grassy strip between the sidewalk and hedgerow to avoid bees because of an allergy, he believed he heard the bus approaching and looked back over his shoulder. As he did so, his foot caught on what he described as a "'dull silver aluminum-like sign base'" located in the grass, causing him to trip and fall onto his left side. Claimant testified that the grass was mowed and shorter than the height of his sneakers, that he was walking at a medium pace, and that he did not see the metal sign base before he fell.

During depositions, New York State Department of Transportation ("DOT") employees testified regarding responsibility for the sign base and maintenance of the area where the incident occurred. Mark Ryan, a DOT highway maintenance supervisor, testified that the sign base at issue is owned by the State, and that this sign base was part of a larger sign that was removed pursuant to a work order with an outside contractor. He further testified that when the State contracts with a contractor to install or relocate a highway sign, the contractor is responsible for removing the existing sign base. He explained that the sign system was designed as a "breakaway" structure so that, if struck by a vehicle, the sign would separate from the base to reduce damage and improve safety. Mr. Ryan identified the specific structure as a bi-directional breakaway base and hinge assembly recognized in New York State DOT standard specifications.

DOT Assistant Engineer Kutama Nenty, who oversaw the relevant highway contract work, testified regarding a project involving the repair and replacement of guide signs along Route 454, which included the removal and relocation of the sign associated with the base at issue in this claim. He explained that the State had entered into Contract No. D260196 with United Fence & Guard Rail Corp. for the removal of the sign in question.

Mr. Nenty identified the object over which Claimant allegedly tripped as the remaining stump or mounting bracket from the removed sign. He stated that, under the applicable contract specifications, this remnant should have been removed as part of the sign relocation work. He testified that his responsibilities as a State inspector included ensuring contractor compliance with contract requirements, including the removal of old sign bases, brackets, or stumps. It was part of his job duties on this project to verify that, upon removal of an existing sign, the contractor also removed the associated stump or mounting bracket. He did not recall any communication, either written or verbal, with the contractor directing removal of the stump at issue. He further testified that he knew of no reason why the stump should have been left in place and that standard practice required inspection of completed work areas to confirm compliance with project specifications.

Mr. Nenty also testified that under the Traffic Engineering and Safety Guide Sign Work Order, Contract No. D260196, when a contractor reports completion of a task such as the removal of an existing sign, it is the inspector's responsibility to verify that the sign was properly relocated and that all work was performed in accordance with the plans and specifications.

With respect to inspection of the specific work area, Mr. Nenty stated that although he would ordinarily walk the site after work was completed to ensure compliance, he does not recall whether he conducted such an inspection in this instance. He explained that the contract encompassed numerous operations and that inspectors were frequently responsible for multiple tasks at once. Safety-sensitive operations were prioritized, and a sign relocation was not typically considered critical. Because multiple inspectors were involved in the project and he cannot recall what other operations were ongoing at the relevant time, he is unable to say whether he personally returned to verify removal of the sign stump at this location.

Robert Fields, a DOT acting highway maintenance supervisor, testified that the grassy shoulder area along Route 454 where the Claimant fell was not maintained or mowed by the State DOT.

Motion to Dismiss Claim (M-102444)

In support of its motion, Defendant annexes an affidavit from Elizabeth Chamakkala, a licensed engineer with DOT, who has been employed as a Regional Claims Engineer for 17 years averred that she was asked to review the records with respect to this Claim in order to determine whether DOT had any ownership and/or maintenance jurisdiction/responsibility for the location where the incident occurred. Ms. Chamakkala stated that DOT "is responsible for maintenance of State Highway located in towns and villages from 'curb-to-curb,' meaning it is responsible for maintaining the roadway itself, as opposed to areas off the roadway such as grassy areas and sidewalks." She averred that Veterans Memorial Highway in Commack was not built by the State nor was title ever transferred to the State.

Defendant states that a party moving for summary judgment must establish entitlement to judgment as a matter of law by demonstrating that no material issues of fact exist. In premises liability cases, a defendant must show that it neither created the alleged dangerous condition nor had actual or constructive notice of it. Defendant argues that it satisfied this burden and that the Claimant's trip-and-fall claim should therefore be dismissed.

Defendant contends that it neither owned nor maintained the grassy area where the Claimant fell. Under Highway Law § 46 and related provisions, the State's maintenance responsibility for state highways running through towns generally extends only "curb to curb," while sidewalks and adjacent areas are maintained by local municipalities or other responsible entities. Claimant testified that he fell not on the sidewalk itself, but in the grassy strip between the sidewalk and the roadway curb. DOT witnesses also testified that the grassy area was not maintained or mowed by the State.

Defendant further relies on documentary evidence and DOT records showing no ownership interest in the incident location. Photographs and testimony identified the alleged defect as a protruding metal sign base located in the grassy strip adjacent to the roadway. Although DOT contractors are generally required to remove old sign bases when relocating signs, Defendant argues that responsibility for maintaining the location itself remained with another entity. Defendant cites prior appellate and Court of Claims decisions holding that municipalities, not the State bear responsibility for sidewalks and adjacent areas along state [*3]highways, including conditions involving abandoned signposts.

Defendant also argues that the alleged defect was open and obvious and therefore not actionable. Courts have held that landowners generally have no duty to warn against conditions that are readily observable and not inherently dangerous. Claimant testified that the incident occurred during daylight hours, that the grass was short, and that the metal sign base was visible above the grass. He further acknowledged that he did not see the sign base because he was looking backward over his shoulder for an approaching bus at the time of the fall.

Accordingly, the Defendant argues that Claimant's own inattention, rather than any hidden or trap-like condition, was the proximate cause of the accident. Because the Defendant neither owned nor maintained the area where the incident occurred and because the alleged defect was open and obvious, the State contends it is entitled to summary judgment dismissing the claim.

Cross-Motion for Summary Judgment (CM-102760)

In support of Claimant's cross-motion and in opposition to Defendant's motion, Claimant argues that the State cannot avoid liability by claiming it did not maintain the grassy area where the accident occurred because the State itself created the hazardous condition. Although the State relies on Highway Law §§ 46 and 140 (18) to argue that maintenance responsibility belonged to the municipality, Claimant contends the dangerous condition arose from a State-owned sign base left behind after a DOT sign relocation project. Under the summary judgment standard cited by the State itself, a defendant must establish that it neither created the condition nor had notice of it, which the Claimant argues the State cannot do here.

Claimant distinguishes the authorities relied upon by the State, such as Olsen v State of New York, (Ct Cl, Apr. 7, 2025, Lopez-Summa, J., claim No. 133040, UID No. 2025-045-503), and Baxter v State of New York, Ct Cl, July 1, 2025, DeBow, J., claim No. 138988, UID No. 2025-038-527 noting that those cases involved defects caused by outside events, including signposts damaged in vehicle accidents, rather than conditions affirmatively created by State construction work. Claimant instead relies on this Court's decision in Anderson v State of New York, where the Court of Claims held that a claim could proceed despite Highway Law § 46 because there were factual questions concerning whether the State created the dangerous condition. Claimant argues that Anderson demonstrates that ownership and maintenance responsibilities do not shield the State from liability when it affirmatively creates a defect.

Claimant further points to deposition testimony from DOT employees establishing both State ownership and State responsibility for the sign base. DOT supervisor Mark Ryan identified the sign base as State-owned and testified that he later returned to the scene and placed hazard cones around the base after receiving a work order, which the Claimant argues demonstrates the Defendant's control over the condition. DOT inspector Nenty testified that the sign base remained after a State sign relocation project and that it should have been removed pursuant to contract specifications. Mr. Nenty further acknowledged that ensuring removal of the base was part of his duties as a State inspector.

Claimant also disputes the Defendant's argument that the condition was open and obvious. Relying on Cupo v Karfunkel, 1 AD3d 48 [2d Dept 2003] and related cases, Claimant argues that an open and obvious condition does not bar liability but instead goes to comparative negligence. Claimant contends that whether the condition was dangerous depends on the specific facts and circumstances of the case.

According to the Claimant, the sign base was inherently dangerous because it was left [*4]low to the ground in a grassy area after removal of the larger guide sign structure that would otherwise have made it visible. Claimant testified that he had never previously been to the location, that the sign base was dull in appearance, and that it blended into the grass during bright daylight conditions. Claimant refers to Mr. Ryan's testimony that the base was intentionally designed to sit low enough for vehicles to pass over it. Given its location near a public bus stop and its limited visibility, Claimant argues that issues of negligence and comparative fault should be resolved by the trier of fact rather than on summary judgment.

LAW AND ANALYSIS

The moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The court must carefully read the motion papers in the light most favorable to the non-moving party (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). If the moving party fails, the court must deny the motion. If the moving party succeeds, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see id.; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Bald, conclusory assertions or speculations and "'[a] shadowy semblance of an issue'" are insufficient to defeat a summary judgment motion (S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974] [citation omitted]). "A motion for summary judgment 'should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility'" (Ruiz v Griffin, 71 AD3d 1112, 1115 [2d Dept 2010], quoting Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]). Lastly, summary judgment is particularly uncommon in actions for negligence in which the inquiry is often fact-intensive (Andre v Pomeroy, 35 NY2d 361, 364 [1974]).

The State has a "nondelegable duty of maintaining its roads in a reasonably safe condition" (Friedman v State of New York, 67 NY2d 271, 286 [1986]; see Roque v State of New York, 199 AD3d 1092, 1094 [3d Dept 2021]). At common law, sidewalks were generally considered part of the street or highway and the municipality responsible for maintaining the roadway was responsible for maintaining the sidewalk (see eg. Roark v Hunting, 24 NY2d 470, 475 [1969]; Castiglione v Village of Ellenville, 291 AD2d 769, 770 [3d Dept 2002], lv denied 98 NY2d 604 [2002]; Farnsworth v Village of Potsdam, 228 AD2d 79, 82 [3d Dept 1997]). "However, where an ordinance, statute or municipal charter specifically imposes both a duty to maintain the sidewalk and liability to injured third parties for failure to do so, the [party responsible under the statute] must assume the duty or face liability" (Pardi v Barone, 257 AD2d 42, 44-45 [3d Dept 1999]).

Under Highway Law § 46 when a state highway passes through a village, the "State retains maintenance jurisdiction of the pavement of the highway, but the village retains maintenance jurisdiction of the sidewalks, curbs, paved gutters, conduits, facilities and appurtenances" (Diederichs v State of New York, Ct Cl, June 12, 2023, Brindisi, J., claim No. 129311, UID No. 2023-065-027; Huber v State of New York, Ct Cl, June 2, 2021, Sampson, J., claim No. 131698, UID No. 2021-053-516). Two cases are particularly instructive on the issue of maintenance responsibility for sidewalks adjacent to a state highway. In Roemer v State of New York , 174 AD3d 931 (2d Dept 2019), the Second Department affirmed the order of the Court of Claims and found that "[C]laimant failed to state a legally cognizable cause of action against the State....[T]he duty to maintain the subject sidewalk in a reasonably safe condition [*5]was upon the Village" and cited Highway Law §§ 46 and 140 [18] (174 AD3d at 932).

Defendant contends that it does not own or maintain jurisdiction over the sidewalk at the location of Claimant's fall. The mere fact that a sidewalk is near a State-owned roadway does not ascribe, without more, any legal relationship over the sidewalk to Defendant. "The Town or Village's duty to maintain the sidewalks along state roads extends to obstructions created by the stubs of broken signposts embedded in the sidewalk (Roemer v State of New York, 174 AD3d 931 [2d Dept 2019]; Flynn v Town of N. Hempstead, 97 AD2d 430 [2d Dept 1983]; Highway Law § 46; Highway Law §140 [18]). Contrary to Claimant's arguments, the State's ownership of the sign does not create a duty under statutory authority or applicable case law (id.)" (Olsen v State of New York, Ct Cl, Apr. 7, 2025, Lopez-Summa, J., claim No. 133040, UID No. 2025-045-503).

Under the specific set of facts and circumstances of this particular case, application of Highway Law § 46 is not proper. The proper inquiry is whether the State had control and a responsibility over and for the sign stump, not whether it was responsible for the maintenance of the hedgeway. Noteably, the record does not support a finding that the stump over which Claimant tripped was "abandoned."

Indeed, DOT employee Kutama Nenty admitted during his deposition that the sign base remained after a State sign relocation project and that it should have been removed under the contract specifications. Although Mr. Nenty testified that removal of the stump was the contractor's responsibility, he also acknowledged that ensuring the removal of the base fell within his duties as a State inspector.

Defendant's inquiry regarding whether DOT had any ownership or maintenance responsibility for the location of the incident is misplaced. The relevant issue is who bore responsibility for ensuring that the stump was removed. Moreover, Defendant's own witnesses testified that DOT created the dangerous condition and had notice of it, they were required to inspect the removal area, and it appears they failed to do so.

Now, having reviewed the submitted deposition testimony as well as the affidavit of Elizabeth Chamakkala, the Court finds that there are factual questions as to whether the State created the dangerous condition by failing to ensure that the base was removed as required by its own sign relocation project and related contract prior to the accident.

DECISION AND ORDER

Based upon the foregoing, the Court finds that both parties have failed to meet their burden to demonstrate entitlement to summary judgment. Accordingly, and based upon the foregoing, and having considered the statutory factors listed in CPLR 3212, it is hereby

ORDERED that Defendant's motion (M-102444) for summary judgment dismissing the claim is DENIED; and it is further

ORDERED that Claimant's cross-motion (CM-102760) for summary judgment is DENIED; and it is further

ORDERED that the Court will hold a pre-trial conference via Microsoft Teams on July 9, 2026 at 11:00 a.m.

This constitutes the decision and order of the Court.

Dated: June 26, 2026

Hauppauge, New York

HON. LINDA K. MEJIAS-GLOVER

Judge of the Court of Claims

Papers Read:

1. Notice of Motion, Affirmation in Support, Defendant's Statement of Facts, Affidavit in Support, Exhibits Annexed

2. Cross-Motion, Affirmation in Opposition and in Support, Affidavit in Opposition and in Support, Exhibits Annexed