Shapley v. State

30 A.D.2d 901, 292 N.Y.S.2d 289, 1968 N.Y. App. Div. LEXIS 3352

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 22, 1968
• Docket: Claim No. 44028
• Status: Published

Opinions

Herlihy, J. P.

Appeal by the claimants from a judgment of the Court of Claims dismissing the cause of action. On April 12, 1964 the automobile operated by the claimant Florence Shapley in which claimant Benjamin S. Shapley was a passenger was traveling on the Taconic State Parkway when the said automobile apparently skidded, as the result of which claimants were injured. The thrust of the alleged negligence of the State was that dirt or sand or gritty material was upon the highway at or near the scene of the accident. It is alleged that the material was left on the highway following the winter weather and that the State was negligent in allowing it to remain in that condition for some period of time. The present record does not, as found by the Court of Claims, permit a finding of negligence against the State. If there was any such material along the highway near the scene of the accident, there is no showing as to the amount thereof or that it was the proximate or concurring cause of the happening of the accident. From the record it would appear that the claimant Florence Shapley for some unknown reason lost control of the operation of her automobile. Judgment affirmed, without costs. Herlihy, J. P., Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Herlihy, J. P. Aulisi, J., dissents and votes to reverse in a memorandum.