Model v. State of New York

Papers Considered: Notice of Motion, Affirmation & Exhibits Annexed           1-7 Affirmation in Opposition & Exhibits Annexed 8-15 Reply Affirmation            16 DECISION AND ORDER Upon the foregoing papers and for the following reasons, the Motion by Defendant State of New York (hereinafter “State”), for summary judgment dismissing the Claim, is denied in accordance with the following decision. By Claim filed on November 18, 2022, Claimant Barry Model (hereinafter “claimant”) commenced the instant action to recover damages against the State, alleging that, on July 19, 2022, at approximately 6:00 p.m., while he was driving southbound on the Clearview Expressway, Interstate 295, he pulled over onto the shoulder to answer his cellular phone, when his car sank into a “pothole that was covered and camouflaged by deep water,” and struck a protruding manhole (Claim, at 1-2, 3). Claimant further alleged that the impact jolted him forward and caused him to violently strike his chest on the steering wheel, and jolted him backward, causing him to strike his back and neck on the seat (id. at 2). Per claimant, the occurrence was caused by “the negligence, carelessness and recklessness of the State” and its agencies “in the ownership, operation, management, control, maintenance, design, inspection and repair of the aforesaid shoulder area” (id.). As a result of the State’s negligence, the claimant alleges that he “sustained multiple and traumatic injuries including, but not limited to, a fracture of the sternum and injuries to the back and neck, mental anguish, anxiety, depression, and posttraumatic stress as well as property damage to his 2004 Honda Civic motor vehicle,” seeking total damages in the amount of $1,000,000 (Claim, at 2,