Rogers v. State

—Order unanimously reversed on the law without costs, motions granted and claims dismissed. Memorandum: The Court of Claims erred in denying the motions of defendant, State of New York (State), seeking dismissal of the claims for failure to state a cause of action (see, CPLR 3211 [a] [7]; cf, Leon v Martinez, 84 NY2d 83 , 87-88). Claimants commenced these actions seeking to recover damages for personal injuries sustained by claimant Dale Rogers and his daughter, claimant Samantha Rogers, in a motor vehicle accident. The accident occurred when the driver of a second vehicle swerved to avoid a deer carcass in the roadway, crossed into Dale Rogers’ lane of travel and collided head-on with the vehicle operated by Dale Rogers in which his daughter was a passenger. Claimants allege that the State was negligent in failing to remove the deer carcass from the roadway after a 911 call from another motorist had been received and a State Trooper had been dispatched to the scene. We conclude that claimants have failed to allege that they had the necessary special relationship with the State to “provide a proper predicate for tort liability against the [State]” premised on its regulation of traffic (Balsam v Delma Eng’g Corp., 90 NY2d 966 , 968; see also, Cuffy v City of New York, 69 NY2d 255 , 260). Claimants have not set forth facts that would create the necessary direct contact and justifiable reliance required under the special relationship test (see, Cuffy v City of New York, supra, at 260 ). Furthermore, contrary to claimants’ contention, the alleged breach of duty here did not involve a proprietary function. Indeed, the fact that the regulation of traffic by police agencies “has traditionally been assumed by police rather than by private actors is a tell-tale sign that the conduct is not proprietary in nature” (Balsam v Delma Eng’g Corp., supra, at 968 ). (Appeal from Order of Court of Claims, Corbett, Jr., J. — Dismiss Claim.) Present — Green, J. P., Hayes, Scudder, Kehoe and Burns, JJ.