Preview
FILED: ONEIDA COUNTY CLERK 01/16/2024 10:34 AM INDEX NO. EFCA2023-003225
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/16/2024
STATE OF NEW YORK
SUPREME COURT : COUNTY OF ONEIDA
_____________________________________________
JUSTICE M. BAKER, ATTORNEY
AFFIRMATION
Plaintiff,
v. Index No. EFCA2023-
003225
MATTHEW J. RIVERA,
AMBER M. EGELSTON, and
CITY OF ROME
Defendants.
_____________________________________________
I, David H. Walsh, IV, Esq., being duly sworn, affirm the following under penalties
of perjury:
1. I am an attorney duly admitted to practice law in the State of New York and
am a partner with the law firm of KENNEY SHELTON LIPTAK NOWAK, LLP, attorneys
for the defendant, CITY OF ROME (“the City”), in the above-captioned matter. As such, I
am fully familiar with the facts and circumstances surrounding this action and motion.
2. This affirmation, together with exhibits, is submitted in support of the City’s
motion to dismiss, pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7), the plaintiff’s
complaint as against the City, along with any and all other relief that this Court deems just
and proper.
3. This case involves an alleged incident dated March 1, 2023, during which
the plaintiff was in the process of crossing Black River Boulevard located in Rome, New
York. The specific location was approximately 400 feet northeast of Oak Street, and it
was at a designated crosswalk equipped with a pedestrian-activated button and a flashing
light alert system designed to notify drivers of the pedestrian’s presence. The plaintiff has
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alleged that the defendant MATTHEW J. RIVERA (“Mr. Rivera”), while driving a vehicle
owned by AMBER M. EGELSTON (“Ms. Egelston), with Ms. Egelston’s permission, struck
the plaintiff while he was walking in the crosswalk.
4. A police report of the accident states the following narrative of events:
On Wednesday, March 1st, 2023 at approximately 12:05 PM, Matthew J.
Rivera was operating a gray colored 2015, Buick Encore (vehicle 1)
traveling south-west in the 1600 block of Black River Blvd. in the City of
Rome N.Y. Front passenger, Steven P. Brown was riding in the vehicle with
Rivera. At the same time, pedestrian Justin Baker was attempting to cross
Black River Blvd. from the north-west side to the south east side and he
was using the designated crosswalk which is marked with signs and lights.
Vehicle 1 struck the pedestrian in the crosswalk and the collision caused
heavy front passenger side quarter panel damage on the vehicle. The
pedestrian was injured and transported to the local hospital. Vehicle 1 and
its occupants immediately left the scene continuing south-west on Black
River Blvd.
Police report attached hereto as EXHIBIT A. The police report establishes that the
accident occurred on Black River Boulevard.
5. On June 1, 2023, the plaintiff served upon the City a notice of claim,
attached hereto as EXHIBIT B.
6. The allegations in the notice of claim against the City include claims of
negligence, carelessness, and reckless disregard for the safety of the lawful traveling
public, including the plaintiff. More specifically, the notice of claim alleges that the City, by
their servants, agents, or employees, failed to provide a safe roadway, highway and/or
travelway; failed to correct a known safety risk at the general location of the accident
herein mentioned; failed to adequately warn of the intersection; failed to maintain and
sign said roadway and intersection in a reasonably safe manner for users thereof; failed
to monitor and control the speed of vehicles traveling on and in the roads involved; along
with other acts of careless negligence, carelessness, and recklessness (Exhibit B, ¶ 5).
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7. On October 23, 2023, the plaintiff appeared for an examination under oath
pursuant to General Municipal Law § 50-H, transcript attached hereto as EXHIBIT C.
8. In the examination, the plaintiff confirmed the location of the accident as
Black River Boulevard at the aforementioned crosswalk (Exhibit C, p. 18).
9. The portion of Black River Boulevard where the alleged accident occurred
is designated as New York State Route 46 and is owned and maintained by the New York
State Department of Transportation (“NYSDOT”). See NYSDOT State Routes in Oneida
County list, attached as EXHIBIT D.
10. As set forth by the affirmation of Joseph G. Guiliano, attached hereto as
EXHIBIT E, the City’s responsibility for the segment of Black River Boulevard where the
accident reportedly happened is extremely limited (Exhibit E, ¶ 6). The City does not own,
maintain, or control this area, except for providing snow plowing and removal services
during winter, which the City is compensated for by the NYSDOT (Id.). Additionally, the
City may perform minor maintenance work, but this is restricted to areas related to its own
utilities (Id.). This maintenance does not extend to the signage or flashing lights at the
crosswalk in question (Id.).
11. The police report as well as the testimony of the plaintiff establishes that the
entirety of the accident took place on New York State Route 46 which is owned, operated,
and maintained by the NYSDOT.
12. Accordingly, the complaint fails to state a cause of action against the City
and should be dismissed pursuant to CPLR 3211(a)(7). The City is not responsible for
maintaining the signage at the aforementioned crosswalk and, consequently, the plaintiff
cannot seek relief from the City based on a failure to maintain the signage.
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13. Further, any allegation made in the plaintiff’s complaint that the City owns,
operates, or otherwise maintains the crosswalk is contradicted by the documentary
evidence of Exhibit D and Exhibit E. Thus, the defendant has also established entitlement
to dismissal on the basis of CPLR 3211(a)(1).
WHEREFORE, the defendant, CITY OF ROME, respectfully requests an order of
this Court dismissing the plaintiff’s complaint as against the CITY OF ROME, together
with any and all other relief this Court deems just and proper.
DATED: Jamesville, New York
January 16, 2024
David H. Walsh, IV, Esq.
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WORD COUNT CERTIFICATION
I, David H. Walsh, Esq., certify pursuant to CPLR § 2106 that the total number of words in
this Attorney Affirmation, exclusive of this certification, is 905 and complies with the word count
limit required by Uniform Civil Rule § 202.8-b.
DATED: Jamesville, New York
January 16, 2024
David H. Walsh, IV, Esq.
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Preview
FILED: ONEIDA COUNTY CLERK 01/16/2024 10:34 AM INDEX NO. EFCA2023-003225 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/16/2024 STATE OF NEW YORK SUPREME COURT : COUNTY OF ONEIDA _____________________________________________ JUSTICE M. BAKER, ATTORNEY AFFIRMATION Plaintiff, v. Index No. EFCA2023- 003225 MATTHEW J. RIVERA, AMBER M. EGELSTON, and CITY OF ROME Defendants. _____________________________________________ I, David H. Walsh, IV, Esq., being duly sworn, affirm the following under penalties of perjury: 1. I am an attorney duly admitted to practice law in the State of New York and am a partner with the law firm of KENNEY SHELTON LIPTAK NOWAK, LLP, attorneys for the defendant, CITY OF ROME (“the City”), in the above-captioned matter. As such, I am fully familiar with the facts and circumstances surrounding this action and motion. 2. This affirmation, together with exhibits, is submitted in support of the City’s motion to dismiss, pursuant to CPLR 3211(a)(1) and CPLR 3211(a)(7), the plaintiff’s complaint as against the City, along with any and all other relief that this Court deems just and proper. 3. This case involves an alleged incident dated March 1, 2023, during which the plaintiff was in the process of crossing Black River Boulevard located in Rome, New York. The specific location was approximately 400 feet northeast of Oak Street, and it was at a designated crosswalk equipped with a pedestrian-activated button and a flashing light alert system designed to notify drivers of the pedestrian’s presence. The plaintiff has 1 1 of 5 FILED: ONEIDA COUNTY CLERK 01/16/2024 10:34 AM INDEX NO. EFCA2023-003225 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/16/2024 alleged that the defendant MATTHEW J. RIVERA (“Mr. Rivera”), while driving a vehicle owned by AMBER M. EGELSTON (“Ms. Egelston), with Ms. Egelston’s permission, struck the plaintiff while he was walking in the crosswalk. 4. A police report of the accident states the following narrative of events: On Wednesday, March 1st, 2023 at approximately 12:05 PM, Matthew J. Rivera was operating a gray colored 2015, Buick Encore (vehicle 1) traveling south-west in the 1600 block of Black River Blvd. in the City of Rome N.Y. Front passenger, Steven P. Brown was riding in the vehicle with Rivera. At the same time, pedestrian Justin Baker was attempting to cross Black River Blvd. from the north-west side to the south east side and he was using the designated crosswalk which is marked with signs and lights. Vehicle 1 struck the pedestrian in the crosswalk and the collision caused heavy front passenger side quarter panel damage on the vehicle. The pedestrian was injured and transported to the local hospital. Vehicle 1 and its occupants immediately left the scene continuing south-west on Black River Blvd. Police report attached hereto as EXHIBIT A. The police report establishes that the accident occurred on Black River Boulevard. 5. On June 1, 2023, the plaintiff served upon the City a notice of claim, attached hereto as EXHIBIT B. 6. The allegations in the notice of claim against the City include claims of negligence, carelessness, and reckless disregard for the safety of the lawful traveling public, including the plaintiff. More specifically, the notice of claim alleges that the City, by their servants, agents, or employees, failed to provide a safe roadway, highway and/or travelway; failed to correct a known safety risk at the general location of the accident herein mentioned; failed to adequately warn of the intersection; failed to maintain and sign said roadway and intersection in a reasonably safe manner for users thereof; failed to monitor and control the speed of vehicles traveling on and in the roads involved; along with other acts of careless negligence, carelessness, and recklessness (Exhibit B, ¶ 5). 2 2 of 5 FILED: ONEIDA COUNTY CLERK 01/16/2024 10:34 AM INDEX NO. EFCA2023-003225 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/16/2024 7. On October 23, 2023, the plaintiff appeared for an examination under oath pursuant to General Municipal Law § 50-H, transcript attached hereto as EXHIBIT C. 8. In the examination, the plaintiff confirmed the location of the accident as Black River Boulevard at the aforementioned crosswalk (Exhibit C, p. 18). 9. The portion of Black River Boulevard where the alleged accident occurred is designated as New York State Route 46 and is owned and maintained by the New York State Department of Transportation (“NYSDOT”). See NYSDOT State Routes in Oneida County list, attached as EXHIBIT D. 10. As set forth by the affirmation of Joseph G. Guiliano, attached hereto as EXHIBIT E, the City’s responsibility for the segment of Black River Boulevard where the accident reportedly happened is extremely limited (Exhibit E, ¶ 6). The City does not own, maintain, or control this area, except for providing snow plowing and removal services during winter, which the City is compensated for by the NYSDOT (Id.). Additionally, the City may perform minor maintenance work, but this is restricted to areas related to its own utilities (Id.). This maintenance does not extend to the signage or flashing lights at the crosswalk in question (Id.). 11. The police report as well as the testimony of the plaintiff establishes that the entirety of the accident took place on New York State Route 46 which is owned, operated, and maintained by the NYSDOT. 12. Accordingly, the complaint fails to state a cause of action against the City and should be dismissed pursuant to CPLR 3211(a)(7). The City is not responsible for maintaining the signage at the aforementioned crosswalk and, consequently, the plaintiff cannot seek relief from the City based on a failure to maintain the signage. 3 3 of 5 FILED: ONEIDA COUNTY CLERK 01/16/2024 10:34 AM INDEX NO. EFCA2023-003225 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/16/2024 13. Further, any allegation made in the plaintiff’s complaint that the City owns, operates, or otherwise maintains the crosswalk is contradicted by the documentary evidence of Exhibit D and Exhibit E. Thus, the defendant has also established entitlement to dismissal on the basis of CPLR 3211(a)(1). WHEREFORE, the defendant, CITY OF ROME, respectfully requests an order of this Court dismissing the plaintiff’s complaint as against the CITY OF ROME, together with any and all other relief this Court deems just and proper. DATED: Jamesville, New York January 16, 2024 David H. Walsh, IV, Esq. 4 4 of 5 FILED: ONEIDA COUNTY CLERK 01/16/2024 10:34 AM INDEX NO. EFCA2023-003225 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 01/16/2024 WORD COUNT CERTIFICATION I, David H. Walsh, Esq., certify pursuant to CPLR § 2106 that the total number of words in this Attorney Affirmation, exclusive of this certification, is 905 and complies with the word count limit required by Uniform Civil Rule § 202.8-b. DATED: Jamesville, New York January 16, 2024 David H. Walsh, IV, Esq. 5 5 of 5