This case is not published in a printed volume and its disposition appears in a table in the reporter.
For Claimants: DAMON MOREY, LLP By: Steven M. Zweig, Esquire
For Defendant: LAW OFFICES OF LAURIE G. OGDEN By: P. David Twichell, Esquire
Diane L. Fitzpatrick, J.
Defendant brings a motion for summary judgment. In support of the motion, Defendant submits the deposition of Claimant, the affidavit of John McNeely, President of Hi-Lite Markings, Inc., with exhibits attached thereto, the deposition testimony of Andrew Fuller, a civil engineer with the New York State Department of Transportation,  a copy of the claim, the answer and the verified bill of particulars. Claimants oppose the motion and submit, in opposition, the unsworn affidavit of Stephen M. Zweig, Esquire. 
It appears that the facts are not significantly in dispute. On July 16, 2003, Claimant,  Otis Shepherd, was driving his 1999 Kawasaki motorcycle northbound on Route 481, a roadway with at least two lanes in each direction, divided by a grassy median. He had owned the motorcycle since 1999, which was new when he purchased it. The motorcycle had approximately 20,000 miles on it on July 16. He had replaced both tires earlier in 2003.
On July 16, Claimant was driving approximately two miles south of Jamesville Road, past the Rock Cut Road exit close to a bridge, at approximately 4:30 a.m., on his way to work at Carrier Corporation. He took his usual route. He estimated that he was traveling about 35 miles per hour. The roads were wet although it was not raining at the time. After getting onto Route 481, northbound, Claimant came upon an area of road construction. The roadway was reduced to one northbound lane of traffic with concrete barriers about 3 to 4 feet high. Prior to reaching the reduced lane area, there were signs posted advising of the construction, reduced lane and speed. Claimant was familiar with the area and the work zone because he traveled this way every day to work. There were other vehicles traveling the roadway that morning; however, they were not close to Claimant although he could see their headlights. Claimant was driving approximately in the middle of the lane, which, because of the lane reduction, was actually on the dividing line between the edge of the righthand driving lane and the shoulder of the roadway as designed. At his deposition, Claimant testified that the restricted lane was not even, there was a small dip or bevel in the roadway between the edge of the righthand lane and the shoulder. The white fog line had been obscured for the lane reduction by black tape. Claimant testified that the roadway was in its "regular driving condition." He had driven in the restricted lane for approximately one-quarter mile until his front tire, which was on the black tape, spun to the left and hit the concrete barrier causing the motorcycle to turn completely around and face south sliding backwards about two car lengths. The motorcycle then fell over. Once the motorcycle started to slip, Claimant couldn't control it.
After the accident, Claimant stood by the concrete barrier until the police officer arrived. He told the police officer that the motorcycle tire slipped on the wet black tape. Claimant did not go back to the place where his tire slipped, however, he walked over to the strip of tape in front of where his motorcycle ended up and slid his foot across the tape. He testified that it was slippery - about as slippery as the pavement. Claimant injured his right foot and needed stitches. He also injured his right arm, right elbow, back, and legs and was taken by ambulance to University Hospital where he was treated and released later that day.
Andrew Fuller, the engineer-in-charge on the I-481 bridge rehabilitation project, oversaw the reconstruction contract which was awarded to Vector Construction Corporation. Other subcontractors also worked on the project. Mr. Fuller directly supervised the State inspectors who made sure the contractors performed to the contract specifications. As part of the project, the shoulders on the northbound lane of Route 481 were resurfaced because traffic was diverted onto the shoulder. By July 16, 2003, all of the shoulder work on northbound Route 481 had been completed - that is the area between Rock Cut Road and Jamesville Road by the bridge over the Susquehanna and Western Railroad and the northbound traffic had been reduced to one lane. To reduce the roadway to one lane, temporary concrete barriers were used. To cover the existing fog line, the subcontractor, Hi- Lite Markings, Inc., applied nonreflective black tape, referred to as item 06619.1914M. Hi-Lite was the subcontractor for placement of pavement markings on the project. The tape used was approved by the Department of Transportation, and State inspectors reviewed and approved the placement of the black tape on the project. The tape is designed to be slip-resistant, withstand traffic and remain at least as slip-resistant as the pavement.
Defendant asserts that an acknowledgment that the State breached no duty of care has been established by Claimant's testimony - that at the time of his accident the black tape was no more slippery than the pavement and, as a result, summary judgment should be granted.
Summary judgment, as is often said, is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law ( Sillman v Twentieth Century-Fox Film, Corp., 3 N.Y.2d 395). Here, Claimant undisputedly attributes the swerving of his front motorcycle tire to the slipperiness of the black tape used to cover the existing fog line. The roadway was wet. Claimant, a fairly experienced motorcycle driver, was traveling relatively slowly, watching where he was going on a route he traveled frequently. Defendant supervised the construction of the roadway and approved the use of the black tape in question and its application to this roadway. Thus, the question turns to whether under any interpretation of the facts Defendant could be found negligent in its authorization or by the application of this black tape to conceal the existing fog line at the location of Claimant's accident. In other words, do the facts allow for the inference that the application of the black tape at the location that Claimant lost control of his motorcycle created an unreasonably dangerous condition for which liability may be imposed.
The State has a non-delegable duty to adequately design, construct, and maintain its highways in a reasonably safe condition (Friedman v State of New York, 67 N.Y.2d 271). Although Claimant has the burden at trial to establish that the State either created a dangerous condition or had actual or constructive notice of such a condition and failed to take remedial steps to correct the condition (Anthony v Wegmans Food Markets, Inc., 11 A.D.3d 953; Guido v State of New York, 248 A.D.2d 592; Gillooly v County of Onondaga, 168 A.D.2d 921), on a motion for summary judgment Defendant has the burden to establish its defense as a matter of law by evidentiary proof (Friends of Animals v Assoc. Fur Mfrs., 46 N.Y.2d 1065, 1067-1068). Only then does the burden shift to the Claimant to come forward with proof to show a genuine question of fact exists (Oswald v City of ...