Opinion
# 2020-053-531 Claim No. 133695 Motion No. M-95704
08-28-2020
TIMOTHY W. McCANN and THERESA McCANN v. THE STATE OF NEW YORK
MEYERS BUTH LAW GROUP, PLLC BY: Laurie A. Baker, Esq. HON. LETITIA JAMES New York State Attorney General BY: Carlton K. Brownell, III, Esq. Assistant Attorney General
Synopsis
Claimants' motion for summary judgment on the issues of negligence and serious injury as defined by Insurance Law 5102 (d) is granted. Vehicle in which claimant was a passenger was rear-ended at a high speed by a NYS Trooper, who later pled guilty to reckless driving in violation of Vehicle and Traffic Law 1212.
Case information
| UID: | 2020-053-531 |
| Claimant(s): | TIMOTHY W. McCANN and THERESA McCANN |
| Claimant short name: | McCANN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The original claim lists State of New York and New York State Police as defendants. The New York State Police are an agency of the State without the capacity to sue or be sued. The caption has been amended sua sponte to reflect the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133695 |
| Motion number(s): | M-95704 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | MEYERS BUTH LAW GROUP, PLLC BY: Laurie A. Baker, Esq. |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Carlton K. Brownell, III, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 28, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants Timothy W. McCann and Theresa McCann served a Notice of Intention to File a Claim on August 6, 2019 and filed claim no. 133695 on September 26, 2019 alleging that on July 15, 2019 claimant Timothy W. McCann (Claimant) was a passenger in a 2019 Dodge Caravan and was seriously injured when a 2016 Dodge police cruiser operated by New York State Trooper Stephen Barker (Trooper Barker) collided with the rear of the vehicle in which Claimant was an occupant. The accident took place on the New York State Thruway (I-90) approximately five miles east of Exit 59. An answer was filed by the State of New York denying the allegations in the claim on November 22, 2019. The claimants move for summary judgment on the issues of negligence and serious injury as defined by Insurance Law § 5102 (d). FACTUAL BACKGROUND
On July 15, 2019 at approximately 1:08 p.m., a 2019 Dodge Caravan driven by Harry Gibbons and owned by Enterprise Rent-A-Car was traveling westbound on the I-90 in the Town of Sheridan, New York. Mr. Gibbons was traveling to Jamestown, New York with four co-workers, including Claimant. The driver and occupants of the van were employed by Enterprise Rent-A-Car and were traveling in the course of their employment.
In a separate action pending before this Court (Claim No. 133516), Harry Gibbons testified at his deposition that he was the driver of the van involved in this accident, that Claimant was seated directly behind him in the second row and that the accident occurred near the Dunkirk exit of I-90. He testified that he was traveling in the left or passing lane; that there was no traffic in the right lane as all traffic had merged left; and that there was stop and go traffic for about two to three miles prior to the Dunkirk exit and this required him to often come to a complete stop. Gibbons testified that immediately prior to the accident he had come to a complete stop and the next thing he remembered was a loud bang and that he was then rendered unconscious (Exhibit E).
On December 30, 2019, Trooper Barker was charged in the Sheridan Town Court with Reckless Endangerment in the Second Degree in violation of NYS Penal Law § 120.20 and Reckless Driving in violation of NYS Vehicle and Traffic Law § 1212. The Information filed by New York State Police Investigator John J. McCusker (Exhibit F) affirmed under penalty of perjury that the Dodge Caravan was slowing for traffic restrictions and was struck from behind by the NYS Police vehicle operated by Trooper Barker; that the data download from the Dodge Caravan indicated that it was traveling at 17 mph about five seconds prior to impact and that its brakes had been applied; that the police vehicle was traveling at 77 mph about five seconds prior to impact and was accelerating and had reached a speed of 82 mph at 0.6 seconds before impact and 73 mph at impact. On January 16, 2020, Trooper Barker pled guilty to the charge of Reckless Driving in violation of NYS Vehicle and Traffic Law § 1212. DECISION AND LAW
Summary judgment is a drastic remedy which will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Zuckerman v City of New York, 49 NY2d 557 [1980]). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 [2007]).
It has been held that in a case involving a rear-end collision a prima facie case of negligence is established against the operator of the rear vehicle where the vehicle in front has stopped or is stopping (Baker v Savo, 142 AD3d 1368 [4th Dept 2016]; Barron v Northtown World Auto, 137 AD3d 1708 [4th Dept 2016]). In such instances, the operator of the rear vehicle has a duty to come forward with an adequate non-negligent explanation for the accident (Barron, Id. at 1709, citing to Borowski v Ptak, 107 AD3d 1498 [4th Dept 2013]). The deposition testimony of Mr. Gibbons, which was corroborated by the Information filed by Investigator McCusker, establishes that the van had slowed to a stop prior to the accident and that Trooper Barker failed to observe and react to slow and stop his vehicle in order to avoid the collision. In opposition, the defendant does not contest that it is liable for the acts or omissions of its employee, Trooper Barker, and has not come forward with any non-negligent explanation for Trooper Barker's conduct. As a result, the Court finds that claimants have met their burden of proof to establish that the defendant was negligent and that such negligence was the proximate cause of this accident.
Furthermore, as a result of the subject accident, Trooper Barker pled guilty to a misdemeanor offense of reckless driving in violation of Vehicle and Traffic Law § 1212, which provides, in relevant part, that "[r]eckless driving shall mean driving or using any motor vehicle . . . in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway." Trooper Barker's guilty plea to reckless driving also establishes the defendant's liability for negligence in causing the claimants' injuries (Bazazian v Logatto, 299 AD2d 433 [2d Dept 2002]; see Allstate Ins. Co. v Zuk, 78 NY2d 41[1991]). Accordingly, there is no question of fact to raise a triable issue and claimants' motion for summary judgment on the issue of negligence is granted.
The claimants also seek summary judgment on the issue of serious injury. In order for claimant to recover for non-economic loss resulting from the subject motor vehicle accident, Insurance Law § 5102 (d) requires that claimant first establish that he sustained a "serious injury". A serious injury is defined by Insurance Law § 5102(d) as:
"a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
The defendant does not contest that Claimant has sustained a "serious injury." In support of their motion, claimants submit the affirmation of Joseph M. Kowalski, M.D., the Claimant's treating orthopedist. Dr. Kowalski affirms with a reasonable degree of medical certainty that the motor vehicle crash of July 15, 2019 was a substantial factor in causing multiple fractures in Claimant's thoracic and lumbar spine, bilateral rib fractures, an intracranial hemorrhage and bilateral lower extremity paralysis. Dr. Kowalski also affirms that he performed surgery on July 16, 2019 in which instrumentation was placed between T3-4 and T5-6; posterior lateral arthrodesis at T3-4 to T5-6; a laminectomy decompression of the spine at T4 and T5; and treatment of the fracture at T4-5. Dr. Kowalski affirms that it is his opinion with a reasonable degree of medical certainty that Claimant sustained a serious injury within the meaning of the Insurance Law § 5102(d) in that he sustained a permanent loss of use of his spinous processes and is permanently paralyzed from the T5 region down, with absent sensation and hyperreflexia of the lower extremities, and that Claimant will be confined to a wheelchair with no motor or sensory function below T5.
Accordingly, the Court finds that claimants have sustained their burden to establish the existence of a serious injury within the meaning of Insurance Law § 5102(d) and that there is no question of fact to raise a triable issue. The claimants' motion for summary judgment on the issue of serious injury is granted.
Based on the foregoing, claimant's motion no. M-95704 for summary judgment with respect to the issues of negligence and serious injury is granted.
August 28, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1) Notice of Motion and affirmation of Laurie A. Baker, Esq., dated July 9, 2020 with annexed Exhibits A-H; affidavit of Timothy W. McCann sworn to July 9, 2020; and Affirmation of Joseph M. Kowalski, M.D. dated July 19, 2020 with annexed Exhibits A-C; 2) Affirmation in opposition of Assistant Attorney General, Carlton K. Brownell, III, Esq., dated July 28, 2020; and 3) Reply affirmation of Laurie A. Baker, Esq., dated August 6, 2020.