Opinion
# 2011-044-537 Claim No. 117895 Motion No. M-79838
08-30-2011
ESTELLE MALMED v. THE STATE OF NEW YORK
Synopsis
Claimant's motion for summary judgment on the issue of liability in claim for personal injuries allegedly received when she was struck by a van owned by defendant was denied due to questions of fact regarding whether claimant herself was also negligent. Case information
UID: 2011-044-537 Claimant(s): ESTELLE MALMED Claimant short name: MALMED Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 117895 Motion number(s): M-79838 Cross-motion number(s): Judge: CATHERINE C. SCHAEWE WORBY GRONER EDELMAN, LLP Claimant's attorney: BY: Richard S. Vecchio, Esq., of counsel HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL Defendant's attorney: BY: Joseph F. Romani, Assistant Attorney General Third-party defendant's attorney: Signature date: August 30, 2011 City: Binghamton Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant filed this claim to recover for personal injuries allegedly received when she was struck by a van owned by defendant State of New York (defendant) and operated by David Gurmas, one of defendant's employees, while she was walking on the campus of Binghamton University (BU). Defendant answered. Thereafter, claimant filed and served an amended claim. Defendant answered the amended claim. Discovery was conducted. Claimant now moves for summary judgment on the issue of liability. Defendant opposes the motion. Claimant replies.
Claimant asserts that Gurmas was negligent in failing to see claimant crossing the roadway before he struck her. Claimant argues that Gurmas' unexcused violation of Vehicle and Traffic Law § 1146 constitutes negligence per se as well, and that it is a rebuttable presumption that he caused her physical injuries. Claimant further contends that she lacks any comparative negligence as she checked for traffic in both directions and observed that it was clear before proceeding across the roadway, and she is therefore entitled to summary judgment on the issue of liability.
Conversely, defendant contends that by crossing the roadway at a location other than a crosswalk, there exists an issue of fact regarding whether claimant was comparatively negligent. Defendant also asserts that because claimant did not see the vehicle until two seconds before it hit her, there are issues of fact and/or credibility as to whether she looked in both directions before crossing the roadway.
In support of this motion, claimant submitted her testimony taken at an examination before trial (EBT). She stated that during the Fall 2008 semester, she was living off the BU campus, in an apartment in the Hayes Community, and that she generally would walk or take a bus between her apartment and the campus. Claimant testified that on September 8, 2008, the day of the accident, she had been at a book store situated in a small plaza located on Bunn Hill Road, across the street from the western edge of the campus. She stated that when she left the plaza, she walked back to campus, intending to return to her apartment. She walked through the parking lot by the West Gym, and then took a path through a wooded area. Claimant admits that she got lost on that path, but states that she ultimately arrived in the vicinity of the traffic circle located near the main entrance to the campus. By use of a red pen, she indicated her route of travel on Google satellite photographs which were marked for identification at her EBT as Exhibit 3 and Exhibit 4 (see Affirmation of Richard S. Vecchio, Esq., dated Apr. 18, 2011, in Support of Motion for Summary Judgment, Exhibit I, at 1-2).She does not remember seeing any pedestrian traffic, but states that vehicular traffic was moderate at the time of the accident. Although claimant acknowledged that "a [z]ebra striped or a ladder crosswalk"is depicted on EBT Exhibit 4, she did not recall the crosswalk being present on the roadway at the time of her accident.
Exhibits which were identified, numbered sequentially, and used during the course of any of the EBTs of claimant, Quanison Wright and Stephen Gowe (all of which were conducted on the same day) will be referred to as "EBT Exhibit" with their corresponding number. For example, the Google satellite photographs discussed herein are referred to as EBT Exhibit 3 and EBT Exhibit 4.
Affirmation of Richard S. Vecchio, Esq., dated Apr. 18, 2011, in Support of Motion for Summary Judgment, Exhibit H, at 29.
Claimant testified that she intended to traverse the roadway and then walk across the grassy portion of the circle in order to proceed in the direction of her apartment. She admitted that she was not located within a marked crosswalk when she was hit, but stated that she had looked in both directions and did not observe any traffic before she entered the roadway. She walked somewhat quickly and had gotten almost all the way across the roadway when she first saw the van, approximately 15 feet away. She stated that the van struck her no more than two seconds later. Claimant did not recall hearing a horn or the squeal of brakes. Nor did she remember the van swerving to avoid her. She stated that the van was approaching her from the left, but because she turned and faced it,the first impact was to her chest. She indicated that she was knocked down and probably thrown, because after the impact she was facing in the opposite direction. Claimant stated that as a result of the collision, she suffered a broken left femur as well as having received cuts and scrapes on her elbows and knees.
Specifically, claimant testified that she turned and put her hands in front of her "automatically to protect [herself]" (Affirmation of Richard S. Vecchio, Esq., dated Apr. 18, 2011, in Support of Motion for Summary Judgment, Exhibit H, at 35).
Quanison Wright, a New York State University Police Officer, testified that he and several other officers responded to the scene of claimant's accident. He explained that the accident occurred in the traffic circle, which is comprised of two lanes of traffic and is located south of the main entrance to the campus. Wright stated that when he arrived on the scene, claimant was sitting on the pavement approximately 4 to 5 feet in front of the van, and appeared to be in significant pain. He conducted an investigation of the accident, interviewing both claimant and Gurmas. Based upon this investigation, Wright determined that Gurmas had turned right from East Drive on to Center Drive, to then proceed northerly toward the traffic circle. As Gurmas continued northwesterly into the circle, he struck claimant in the roadway. During his investigation, Wright also learned that Gurmas' license had been suspended in September 2005. As a result, Gurmas was charged with Aggravated Unlicensed Operation of a Vehicle in the Third Degree, a violation of Vehicle and Traffic Law § 511.
Wright indicated that at the time of the collision, claimant was not located within a designated crosswalk. However, he testified that there was a marked crosswalk located approximately 80 feet north of the location of the accident. He stated that the marked crosswalk was depicted on EBT Exhibit 4 by white hash marks located on both West Drive and Center Drive, north of the traffic circle. He also stated that there was a "yield to passengers in a crosswalk"sign. Wright indicated that if a pedestrian had used the crosswalk, they could continue across the triangular section of grass between West Drive and Center Drive without entering the traffic circle roadway.
Affirmation of Richard S. Vecchio, Esq., dated Apr. 18, 2011, in Support of Motion for Summary Judgment, Exhibit K, at 83.
Stephen Gowe, BU's Grounds and Mechanical Services Manager, testified that he supervised the grounds department, automotive shop, and the bus system that was on campus. He testified that Gurmas' title was Laborer and his duties included cleaning the automotive shop and vehicles, and when the regular van driver took a break, Gurmas would act as a substitute driver. Gowe stated that during the 10 years he knew him, Gurmas had difficulty with his speech (i.e. it was difficult to understand what Gurmas was saying), and he walked with a limp. Although Gowe noted that Gurmas' physical problems seemed to become worse during the year prior to the accident, Gowe did not believe that they interfered with his ability to perform his job. Gowe indicated that at some time prior to the accident, Gurmas began arriving at work each day in a cab rather than driving his own vehicle. Considering that conduct slightly unusual, Gowe requested a photocopy of Gurmas' license, stating that he wanted to be sure Gurmas still possessed a license. Although Gurmas provided the copy, Gowe admitted that he did not have the ability to run any type of license check to determine whether the license had been suspended or revoked.
As the movant on this motion for summary judgment, claimant is required to set forth evidentiary facts in admissible form which establish her entitlement to judgment on the issue of liability as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once this burden has been met, it is incumbent upon the opposing party to produce admissible evidence sufficient to create material issues of fact requiring a trial of the action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). However, absent such a prima facie showing by the movant, the motion must be denied, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra).
The Court notes as well that its job in the determination of a summary judgment motion is issue finding, and before judgment can be granted it must be clear that there are no outstanding triable issues of fact (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958 [2011]; see also Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Negligence cases such as this "by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for determination" by the finder of fact (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]; see also De Cristofaro v Joann Enters., 250 AD2d 990 [1998]). To establish entitlement to relief in this vehicle/pedestrian accident, claimant must not only establish defendant's negligence as a matter of law, but must also demonstrate the absence of any comparative fault (see Thoma v Ronai, 82 NY2d 736 [1993]; Cator v Filipe, 47 AD3d 664 [2008]; see also King v Washburn, 273 AD2d 725 [2000]).
As relevant to this action, Vehicle and Traffic Law § 1146 (a) provides that "[n]otwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any . . . pedestrian . . . upon any roadway and shall give warning by sounding the horn when necessary." However, Vehicle and Traffic Law § 1152 (a) requires that "[e]very pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway."
It is undisputed that Gurmas was operating the van during the course of his employment with defendant at the time of claimant's accident, and under the doctrine of respondeat superior, this conduct may provide the basis for defendant's potential liability (Rossetti v Board of Educ. of Schalmont Cent. School Dist., 277 AD2d 668 [2000]). It is also apparent that by striking claimant in the roadway, Gurmas violated Vehicle and Traffic Law § 1146 (a) which constitutes negligence. However, it is also undisputed that claimant was not walking within a marked crosswalk at the time of the collision. Moreover, a review of EBT Exhibit 4 reveals that there was a marked crosswalk located north of the traffic circle in the immediate vicinity of the location of the path through the wooded area. In viewing this evidence in the light most favorable to defendant as the non-moving party and drawing all reasonable inferences therefrom (see Boston v Dunham, 274 AD2d 708 [2000]; Boyce v Vazquez, 249 AD2d 724 [1998]), it appears that claimant avoided the marked crosswalk and continued walking in a northerly direction, perhaps as a short-cut to her apartment. She then chose to cross the roadway in the traffic circle, without benefit of a marked crosswalk, in an area where she admitted there was moderate traffic. Further, even though she allegedly looked both ways before entering the roadway, claimant admitted that she did not see defendant's vehicle until only two seconds before she was struck. "Although [claimant] is correct that an unexcused violation of the Vehicle and Traffic Law . . . constitutes negligence per se" (Long v Niagara Frontier Transp. Auth.,
81 AD3d 1391, 1392 [2011] [citations omitted]), the Court finds that there are significant questions of fact as to whether claimant was also negligent (see Thoma v Ronai, supra; Cator v Filipe, supra; see also Lopez v Garcia, 67 AD3d 558 [2009]).
The Court notes that claimant has also failed to submit admissible medical evidence establishing that she suffered a serious injury within the meaning of Insurance Law § 5102 (d) (see e.g. Tandoi v Clarke, 75 AD3d 896 [2010]).
The Court finds that claimant has failed to meet her burden of establishing entitlement to judgment as a matter of law, without regard to defendant's opposition papers (Winegrad v New York Univ. Med. Ctr., supra). Accordingly, claimant's motion for summary judgment on the issue of liability is denied in its entirety.
August 30, 2011
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed on April 20, 2011; Affirmation of Richard S. Vecchio, Esq., dated April 18, 2011, and attached exhibits.
2) Affirmation in Opposition of Joseph F. Romani, Assistant Attorney General, dated June 15, 2011; Memorandum of Law dated June 15, 2011.
3) Reply Affirmation of Richard S. Vecchio, Esq., dated June 20, 2011.
Filed papers: Claim filed on January 12, 2010; Verified Answer filed on February 10, 2010; Amended Claim filed on April 1, 2010; Verified Answer to Amended Claim filed on April 26, 2010.