204 Misc. 222 | New York Court of Claims | 1952
The State of New York has moved in the above-entitled claim ‘ ‘ for an order dismissing the claim herein on the ground that it appears on the face of the claim that it does not state facts sufficient to constitute a cause of action against the State of New York, and for such other and further relief as to this Court may seem just and proper. ’ ’ The motion is resisted by the claimant.
The claim as originally filed alleges, among other things:
“ 5. That upon information and belief, on the 15th day of October, 1951, at about 11:30 o’clock in the morning, the claimant
“ 6. That said hill on which the Devil’s Elbow is located on said State Route 17, and easterly and westerly thereof, is a place where deer congregate at intervals and cross the highway suddenly, creating a dangerous and hazardous condition for users of the highway.
“ 7. That said accident and damages were caused solely by reason of the negligence of the State of New York, its officers, agents and employees, and without any negligence on the part of the claimant contributing thereto. That the State of New York, its officers, agents and employees, were negligent in constructing, reconstructing and maintaining said road, and in failing to erect and maintain signs and markers warning travelers on said highway of the existence of such area and danger as described in Paragraph 6 hereof.”
Upon the return day of the motion to dismiss, the claimant moved to amend paragraph six of Ms claim to read as follows: “ That the said hill on which the Devil’s Elbow is located on said State Route 17, and easterly and westerly thereof, is a place where deer congregate, and for sometime past have congregated at intervals and cross, and for sometime past have crossed the Mghway suddenly, creating a dangerous and hazardous condition for users of the Mghway, and such condition was known to The State of New York, its agents, servants and employees, and should have been known to The State of New York, its agents, servants, and employees, for a considerable time prior to the collision referred to in Paragraph 5 thereof.” The motion was granted and the order providing for the same sets forth: “ And it is further Ordered, that the motion made by The State of New York to dismiss the complaint be and the same hereby is deemed to have been made to the claim of the claimant as hereby amended.”
For the purposes of this motion to dismiss, the allegations of the claim must be deemed established and ' ‘ every intendment and fair inference is in favor of the pleading.” (Madole v. Garin, 215 App. Div. 299, 300; McClure v. Massachusetts Bonding & Ins.
Motion denied.
Submit order accordingly.