Law makes state immune from pothole damage claims in winter


BUFFALO, N.Y. (WIVB) – According to state law, the NYS Department of Transportation does not have to pay if your car is damaged by one of the multitude of potholes on area roadways.

You could call winter “pothole liability immunity season” for state highways. One News 4 viewer found that out the hard way.

Paul Pfohl showed News 4 the bulge in his front tire and bend in his aluminum rim from hitting a pothole on Rt. 33. Repairs will cost Pfohl close to $600.

On Tuesday, DOT Spokeswoman Susan Surdej told News 4 that people could try making a claim for pothole damage to their cars by calling 847-3173.

She said, “Everything is done on a case by case basis. The most important thing is if the pothole has been reported and if we have fixed it, and that’s the determining factor in most cases whether a claim gets paid or not.”

But Surdej did not mention that that drivers are out of luck if it happens in the cold months. It’s actually State Law Section 58: “The state shall not be liable for damages suffered by any person from deficits in state highways, except between the first day of May and the fifteenth day of November.”

Pfohl was obviously unhappy when he learned about that legal loophole.  “You’re going to see all your potholes in those time frames and the way they word it is their primary objective is snow removal in those months,” he said.

Pfohl spent the past two days searching for a new rim, and getting a used tire at Community Tire. Mechanic Chris Klodzinski says a lot of people may not even realize their rim has been damaged.

He explained, “Unless they get a flat tire, they could hit a pothole and not even know that there’s a damaged wheel on there.”

“I wish there was some way either the state could come in and offer to help people out, especially in a year like this. I mean, this has been bad on everybody,” Pfohl sighed.

Even though the state doesn’t have to pay for pothole damage on its roads during the cold months, there is no seasonal stipulation on city and county roads.

But the City of Buffalo is only liable if the pothole had been previously reported as a problem by someone else who gave written notice to the City Clerk. So far this year, only one person has bothered to give formal written notice to the City Clerk about a bad pothole.

As for Erie County roadways, you can file a claim any time of year, but still the pothole would have had to have been previously reported as a problem, and the county would have had to have a reasonable amount of time to address it, usually a few days.

Erie County’s attorney tells News 4 that most of those who try to get compensation are denied, but this year at least a dozen people will be paid for pothole damage. provides commenting to allow for constructive discussion on the stories we cover. In order to comment here, you acknowledge you have read and agreed to our Terms of Service. Commenters who violate these terms, including use of vulgar language or racial slurs, will be banned. Please be respectful of the opinions of others. If you see an inappropriate comment, please flag it for our moderators to review. Note: Comments containing links are not allowed.

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