COMMUNITY WATCHDOG: When pothole damage isn't covered

A reader who recently was driving his 2009 Mazda Miata east on the Northern State Parkway near Exit 38 hit a pothole, blowing out two tires and causing $600 in damage.

But what really upset him was that after he contacted the state Department of Transportation (the parkway is a state roadway), he was told that because the damage occurred between Nov. 16 and April 30, the state was not liable for the damages.

Really? The state is not liable for damages that occur during the time of year when there are large potholes and other road problems that result in high repair costs for taxpayers?

Apparently so. New York State Highway Law, Article 3, Section 58, reads: "The state shall not be liable for damages suffered by any person from defects in state highways, except between the first day of May and the fifteenth day of November on such highways as are maintained by the state ... "

There was more legal jargon we didn't understand, so we called the DOT in Albany and asked spokeswoman Carol Breen for an interpretation of the legalese and what it means for vehicle owners.

What she forwarded to us in an e-mail from the DOT's legal department was, well, pretty murky. This is how it starts: "Section 58 was written into the Highway Law through Chapter 63 of the Session Laws of 1936; and it was subsequently amended through chapter 1110 of the Session Laws of 1971. The law is derived from Old English Common Law and the doctrine of sovereign immunity."

There was a lot more, but the rest of it was even more cryptic than the law itself.

In her e-mail, Breen wrote, "I know you were looking for an interpretation, but we can't give an adequate interpretation without a specific case. I can say that we try to address potholes as quickly as possible all year long. We have a hotline (800-POTHOLES) that the public can call to alert us when a pothole develops and we will fix it as soon as practicable. (We can't fix potholes when it's raining or snowing or when the roads are wet.)"

It would be up to lawmakers in Albany to eliminate the liability-free period to make the state responsible for damages year-round. But apparently they haven't been inclined to do that, even when New York was in better fiscal shape.

Nearby wall still an issue

It's going on three years that Rebecca D'Souza and her family have been waiting to use their backyard in Huntington. Her home is on a hill and the retaining wall of the house above hers started collapsing. She was told by a Town of Huntington inspector that the situation was dangerous and that her children, Nicholas and Grace, shouldn't be allowed in the yard. We wrote about her problem last July, when town officials told us they were working to resolve this issue.

A wall was constructed by the neighbor, but when it was inspected Nov. 10, it was found to be unsound, lacking details needed to make it safe, according to town spokesman A.J. Carter. On Nov. 30, the town revoked the building permit for the wall, saying it was not built according to plans approved by the town. "It looked more like a basement foundation wall," Carter said.

In late January, the town went back to court stating that the neighbor needs a new permit. Third District Court Judge C. Stephen Hackeling gave the neighbor another two months to come into compliance.

"If that doesn't happen, we'll bring it to trial," Carter said. "We're doing the best we can do."

Frustrated, D'Souza said, "We're looking at three years that this has been going on ... it's destroyed our backyard. It's all mud and gravel now."

Stay tuned.

Bus stop needs patrols

My wife and I pick up our son at a bus stop at Dogwood Road and Paumanake Avenue in West Islip. On many occasions, I've seen drivers pass the school bus when its lights are flashing and ignore stop signs and speed limits. Once, I copied a license-plate number and called police, who gave the driver a warning. They said unless they witness the act, they can't do anything.

-Glenn Lavelle, West Islip

At our request, Suffolk police said they would step up patrols at the bus stop. Inspector Jan L. Rios, Third Precinct Commanding Officer, said police will visit the location during pickup and drop-off times (8:30 a.m. and 3:15 p.m.) to determine if it warrants more attention.

"As far as traffic violations are concerned, passing stopped school buses are probably one of the least-frequent violations, though probably one of the most egregious," he said. Precincts statewide target this offense several times a year, placing officers with radios on select school buses, he said. Once they observe a violator, officers radio a neighboring unit to issue a summons.

Apparently, Lavelle's prior complaint was never logged. Rios said this is the first time the bus stop has been brought to his attention.

Third Precinct residents in Suffolk with concerns about traffic violations should call 631-854-8300.