Opinion
# 2019-040-043 Claim No. 127477 Motion No. M-92848
06-17-2019
In the Matter of the Claim of BRYON S. COMBELLACK v. THE STATE OF NEW YORK
Peter J. DiGiorgio, Jr., Esq. LETITIA JAMES Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG
Synopsis
Defendant's Motion for Summary Judgment denied. Question of fact exists.
Case information
| UID: | 2019-040-043 |
| Claimant(s): | In the Matter of the Claim of BRYON S. COMBELLACK |
| Claimant short name: | COMBELLACK |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127477 |
| Motion number(s): | M-92848 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Peter J. DiGiorgio, Jr., Esq. |
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Sean B. Virkler, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | June 17, 2019 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendant's Motion for summary judgment dismissing the Claim pursuant to CPLR 3212 is denied.
Claim No. 127477 was filed in the office of the Clerk of the Court on February 8, 2106. After the Answer was served and filed, Claimant made a Motion for permission to serve and file a Claim late pursuant to Court of Claims Act §10(6). The Court granted Claimant's Motion and Claimant filed Claim No. 130534 in the office of the Clerk of the Court on November 13, 2017. By stipulation of the parties, which was "So Ordered" by the Court on January 14, 2019, and filed in the office of the Clerk of the Court on January 28, 2019, it was agreed that the two Claims be joined for trial and be consolidated into one action under Claim No. 127477.
The Claim alleges that the accident occurred on March 10, 2015 between 8:00 p.m. and 11:30 p.m. at the Route 49 East Ramp and I-790 West Ramp in the City of Utica, County of Oneida (Claim, ¶ 4). The Claim alleges that Defendant allowed and/or caused snow to be plowed around and remain, adjacent to and on top of certain attenuator barrels located at the merger of the ramps, causing the Claimant's vehicle to become airborne and go over the bridge, resulting in an impact and crash off the bridge from a vertical height of approximately 29 feet (Claim, ¶ 5). Claimant alleges that he was injured as a result of the accident (id., ¶ 6).
At his deposition, conducted on April 7, 2017, Claimant testified that, on March 10, 2015, he went to dinner at Lukin's restaurant at about 6:00 p.m. (Ex. E attached to Defendant's Motion, Transcript of the Examination Before Trial of Bryon S. Combellack [hereinafter, "Combellack EBT"], pp. 62-64). He testified that he left the restaurant around 8:00 p.m. (id., p. 72) and headed home (id., p. 73). Regarding the events just prior to the accident, Claimant testified:
I was traveling on 12 North and then I merged off of 12 North to 790 and 49 ramps, like I said, to go home. I then stayed in the slow lane of 49. There's two lanes that go to 49. There's two lanes that go to 790. So I was in the slow lane or the right lane of 49 for going west, before the ramp that - or the split at the ramps.
So as I'm driving down the road, I notice, you know, a vehicle coming up on my left side, rather quickly, because all I can see is his headlights coming up rather quickly on my left-hand side. The car then came next to me and as it was next to me, it started coming over into my lane, as - as if it didn't know I was there or what - okay - I don't know what the person was thinking, but.
So I want to avoid a collision so I moved over into the right lane to avoid the collision. Again, it's a four-lane highway there. There's a lot of room and there was no traffic coming that I could see from my right side. So when I moved over - when I moved over and I looked to see where that vehicle was at that point to see if I moved out away or what the vehicle was still doing if it was still coming in my lane or whatever. And next thing I knew, it was like an explosion, you know, like a big bang, you know, like I - obviously, I hit something or something hit me, whatever the case may have been at that point in my mind. And I just remember the waking up in the vehicle, like I said. Or I don't know if waking up would be the right word - I guess just opening my eyes being in the vehicle. I noticed, obviously, I was in a - in a motor vehicle accident.
(Combellack EBT, pp. 82-83).
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
When the State engages in a proprietary function, such as highway and road maintenance, it is held to the same duty of care as private actors engaging in similar functions (Lynch v State of New York, 21 Misc 3d 1127[A], *3 [Ct Cl 2005], affd on other grounds, 37 AD3d 772 [2d Dept 2007]; Coco v State of New York, 123 Misc2d 653, 655-656 [Ct Cl 1984]; see Sebastian v State of New York, 93 NY2d 790, 793 [1999]; Oeters v City of New York, 270 NY 364, 368 [1936]; Kamnitzer v City of New York, 265 App Div 636, 638-639 [1st Dept 1943]; Murphy v Incorporated Vil. of Farmingdale, 252 App Div 327, 329 [2d Dept 1937], appeal denied 13 NE2d 480 [1938]). Thus, Defendant has an absolute, "nondelegable duty to maintain its roads and highways in a reasonably safe condition, and … liability will flow for injuries resulting from a breach of that duty" (Levine v New York State Thruway Auth., 52 AD3d 975, 976 [3d Dept 2008], quoting Nurek v Town of Vestal, 115 AD2d 116, 116-117 [3d Dept 1985]; see Friedman v State of New York, 67 NY2d 271, 286 [1986]; Maldonado v New York State Thruway Auth., 86 AD3d 785, 786 [3d Dept 2011]). The duty "is intended to protect the traveling public" (Lopes v Rostad, 45 NY2d 617, 624 [1978]) and Defendant may be held liable for any such breach of duty in accordance with "general principles of negligence and comparative negligence" (Bottalico v State of New York, 59 NY2d 302, 305 [1983]; see Weiss v Fote, 7 NY2d 579, 585 [1960]).
Defendant is not an insurer of public safety, however, and negligence cannot be inferred solely from the occurrence of an accident on its roadway (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]).
Defendant asserts that the Claim should be dismissed on the basis that: (1) it is immune from liability; and (2) its asserted actions were not the proximate cause of Claimant's accident.
The Court will first address Defendant's immunity defense. Where the alleged negligence arises out of the State's study of a traffic condition that requires expert judgment or the exercise of discretion, it is entitled to a qualified immunity from liability unless the proof establishes that the decision evolved without adequate study, was plainly inadequate, or there was no reasonable basis for the plan (see Affleck v Buckley, 96 NY2d 553, 556 [2001]; Friedman v State of New York, supra at 283-284; Alexander v Eldred, 63 NY2d 460, 466 [1984]; Weiss v Fote, supra at 586, 589). It is Defendant's burden to establish that the qualified immunity defense applies (Evans v State of New York, 130 AD3d 1352, 1354 [3d Dept 2015], lv denied 26 NY3d 910 [2015]). It applies whenever a governmental planning body "has entertained and passed on the very same question of risk as would ordinarily go to the jury'" (Weiss v Fote, supra at 588; see Turturro v City of New York, 77 AD3d 732, 735 [2d Dept 2010]). In support of its Motion, Defendant has submitted the affidavit of Dominick J. Gabriel, a professional engineer licensed in New York State (hereinafter, "Gabriel Affidavit"). Mr. Gabriel avers that the area where Claimant's accident occurred is known as the MUD project (Gabriel Affidavit, ¶ 4).
Michael Murphy, a Department of Transportation, Transportation Maintenance Engineer 2, testified at his examination before trial that "MUD project" stands for Marcy Utica Deerfield project (Ex. 2, pp. 5, 9, attached to Affirmation of Peter J. DiGiorgio, Jr., Esq.).
Mr. Gabriel states that the Claim alleges that Defendant was negligent in allowing and/or causing snow to remain in and around the impact attenuator barrels that are located at the location where the ramps split (known as the gore area) (Gabriel Affidavit, ¶ 4). Mr. Gabriel further states: that the New York State Department of Transportation (hereinafter, "DOT") maintains records regarding accidents that occur at different locations within each of its Regions; that he reviewed the accident history related to the area in question in this Claim; and that his review found that there have been no previous accident at this location where a vehicle struck the impact attenuator barrels and then vaulted down into the gore area (id., ¶ 5).
Mr. Gabriel further avers:
6. The Maintenance Bureau of the [DOT] uses a records system known as Maintenance Asset Management Information System (MAMIS) to record and document the work performed by its Maintenance employees. I reviewed the [DOT] MAMIS records for the time period in question. The records indicate that on March 3, 2015, DOT Maintenance employees removed snow, that had accumulated from previous snow storms, from in front of and around the impact attenuator barrels in question. A copy of the relevant MAMIS records [is] annexed hereto as Exhibit B.
7. I also reviewed the deposition transcripts on this case, including the testimony of Joseph Kraszewski and Dana Grube. The deposition transcript of Joseph Kraszewski is annexed hereto as Exhibit C. The deposition transcript of Dana Grube is annexed hereto as Exhibit D. Their testimony indicates that the DOT cleared the snow around and in front of the attenuator barrels on March 3, 2015.
8. I reviewed the Storm Log(s) for the time period in question, as well as the Snow and Ice Operator Reports. They are annexed hereto as Exhibit E. Of interest is that the Storm Log indicates that two inches of snow fell during the storm from March 3, 2015 through March 4, 2015, two more inches fell on March 7, 2015, and then a "coating" of snow on March 9, 2015.
9. The Snow and Ice Operator reports indicate that the DOT was involved in snow plowing and salting the roads each day from March 4, 2015 through March 9, 2015 inclusive. The records that are attached in Exhibit E specifically relate to the snow and ice operations in the vicinity of the MUD project.
10. Importantly, [DOT's] Snow and Ice Control is governed by [its] Highway Maintenance Guidelines, dated April 2006, Revised January 2012. A copy of the guidelines [is] annexed hereto as Exhibit F. The Guidelines are reviewed and studied consistently by DOT, and are updated to meet new standards when appropriate. According to the Guidelines, the objective of snow control is "to provide the traveling public with a passable highway as much of the time as possible, given the constraints of operational resources and the character of the snow event." See page [9]. The guidelines further state that the shoulders should be plowed next. "After pavement and ramps are cleared, the full width of the shoulders should be plowed." See page 15. "After the storm is over, plowed snow should be plowed back as far as possible to provide snow storage in anticipation of the next storm." See page 15.
11. According to the Guidelines, impact attenuators are considered a special area. See page 16. The Guidelines state that "after the storm is over, the shoulders, crossovers and gore areas have been plowed and benching and pushing back operations are underway or complete, the removal of snow from special areas should [commence]. See page 16. The section on impact attenuators states, "when possible, accumulated snow should be removed from areas that could affect the performance of impact attenuators."
12. It is my professional opinion, based on my education, [DOT] training and [DOT] work experience[,] that the [DOT's] actions in this case were proper and followed the applicable standards and guidelines. Specifically, the DOT cleared the snow around the barrels on March 3, 2015. Then[, every day] from March 4, 2015 through March 9, 2015 inclusive, they were engaged in snow plowing operations, snow salting operations, and clearing snow from the shoulder(s) of the highway(s) in anticipation of the next storm. Upon completion of that work and "when possible" (see Guidelines)[,] the next step would be to remove the snow that had accumulated in front of the impact attenuator barrels. In this case, the accident occurred the next day (March 10, 2015) after the DOT employees were involved in several days of "mandatory" snow and ice operations and before the DOT employees could get back to the area and begin the snow removal operations in front of the barrels.
Mr. Gabriel's affidavit makes a prima facie showing that Defendant followed the State Highway Maintenance Guidelines (hereinafter, "Guidelines"). As stated by Judge Donald J. Corbett, Jr., in Tuchrello v State of New York, 190 Misc 2d 664, 673 (Ct Cl 2001):
"[W]hen a municipality studies a dangerous condition and determines as part of a reasonable plan of governmental services that certain steps need not be taken, that decision may not form the basis of liability." (Citations omitted).
Ascertaining the reasonableness and adequacy of the State's planning is quite frankly a subjective assessment, not reduced to simplistic mathematical formulae.
Here, Defendant submitted only the affidavit of Mr. Gabriel in which he opines that Defendant followed the Guidelines (Gabriel Affidavit, ¶ 12), and that the Guidelines are reviewed and studied by DOT and are updated to meet new standards when appropriate (id., ¶ 10). However, Defendant did not establish the process used in the formulation of the Guidelines. Defendant did not present any evidence regarding studies, analysis and reviews utilized in formulating the Guidelines, including whether the possibility of a vehicle vaulting over the attenuator barrels was considered if snow was pushed by snow plows in front of the attenuator barrels. Thus, the Court finds and concludes that Defendant failed to establish that the Guidelines were implemented as the result of an adequate study or investigation, and that there was a reasonable basis for their implementation (see Aanonsen v Schneider, 2018 NY Slip Op 33274[U] [Sup Ct, Suffolk County 2018]), and, therefore, did not establish that it is entitled to dismissal of the Claim based upon the qualified immunity defense.
As Defendant has not made a prima facie showing of entitlement to judgment on its qualified immunity defense, the Court does not need to address Claimant's opposition papers or Defendant's reply papers on this issue.
The Court will now address Claimant's second argument for dismissal of the Claim, lack of proximate cause. Defendant asserts the facts demonstrate that a fast-approaching, unidentified vehicle (maroon sedan) swerved and/or drifted into Claimant's lane. Claimant veered/swerved to the right to avoid the vehicle. Within seconds after he swerved, Claimant hit the impact attenuator barrels. Thus, according to Defendant, the proximate cause of the accident was the action of the maroon sedan and/or Claimant swerving to avoid it. Therefore, Defendant concludes that the Claimant cannot establish that Defendant's actions were the sole cause of the accident (Affirmation of Sean B. Virkler, Esq., Assistant Attorney General, ¶¶ 18, 19).
The Court finds and concludes that Defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law on the issue of proximate cause. Proximate cause is generally an issue for the trier of fact (see Nowlin v City of New York, 81 NY2d 81, 89 [1993]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]). Moreover, Claimant need not establish that Defendant's actions were the sole cause of the accident. There can be more than one proximate cause and Claimant need only show that Defendant's actions were a substantial factor in causing his accident (Bednoski v County of Suffolk, 146 AD3d 943, 945 [2d Dept 2016]). Here, Defendant's submissions failed to demonstrate that an accumulation of snow, as asserted by Claimant in the Claim, did not contribute to the happening of the accident by materially increasing the risk (Langer v Xenias, 134 AD3d 906, 908 [2d Dept 2015]).
Based upon the foregoing, the Court finds that Defendant has failed to establish as a matter of law it is entitled to summary judgment. Therefore, Defendant's Motion for summary judgment dismissing the Claim pursuant to CPLR 3212 is denied.
June 17, 2019
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendant's Motion: Papers Numbered Notice of Motion, Affirmation in Support, Exhibits Attached, Affidavit, and Exhibits Attached 1 Answering Affirmation, Exhibits Attached, Affidavit of John A. Serth, Jr., Exhibits Attached, Affidavit of Thomas M. Else, Exhibit Attached, and Memorandum of Law 2 Reply Affirmation, Exhibit Attached, and Affidavit Exhibit Attached 3 Filed Papers: Claim, Answer
Mr. Gabriel asserts that two Exhibits are attached to his Affidavit (Exs A & B). Only Ex. A is attached to the copy submitted to the Court.