Opinion
# 2021-038-523 Claim No. 133077 Motion No. M-96552
04-29-2021
STEVEN RIVIECCIO v. THE STATE OF NEW YORK
O'CONNOR & PARTNERS, PLLC By: Michael Kolb, Esq. LETITIA JAMES, Attorney General of the State of New York By: Anthony Rotondi, Assistant Attorney General
Synopsis
Claimant's motion for summary judgment on the issue of liability denied. Claimant failed to establish prima facie that defendant created a dangerous condition. Claimant's motion to strike the second affirmative defense raised in defendant's answer denied on the ground that claimant failed to prove that defendant was the only culpable party and that eh affirmative defense as to comparative negligence lacked merit as a matter of law.
Case information
| UID: | 2021-038-523 |
| Claimant(s): | STEVEN RIVIECCIO |
| Claimant short name: | RIVIECCIO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133077 |
| Motion number(s): | M-96552 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | O'CONNOR & PARTNERS, PLLC By: Michael Kolb, Esq. |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Anthony Rotondi, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 29, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed this claim seeking compensation for injuries allegedly sustained when he was riding his bicycle on the Walkway over the Hudson (the Walkway) bridge in the Town of Highland, New York, on February 21, 2018. Claimant now moves for partial summary judgment on the issue of liability and for an order dismissing the second affirmative defense asserted in defendant's Verified Answer. Defendant opposes the motion.
The CPLR provides, in pertinent part, that a motion for summary judgment shall "be supported by affidavit, by a copy of the pleadings and by other available proof" (CPLR 3212 [b] [emphasis added]). Here, although claimant has submitted the notice of intention to file a claim (see Kolb Affirmation, Exhibit A) and defendant's verified answer (see id., Exhibit C), he has failed to append a copy of the verified claim that was filed. Claimant's omission of the claim on this motion requires summary denial of the motion without prejudice to renewal of the motion (see Wilder v Heller, 24 AD3d 433, 434 [2d Dept 2005]; Greene v Wood, 6 AD3d 976, 977 [3d Dept 2004]). However, inasmuch as the trial on the issue of liability of this claim is scheduled for June 8 and 9, 2021, there will not be sufficient time for renewal of the motion prior to trial. Therefore, in the interests of judicial economy, the Court will overlook claimant's failure by retrieving a copy of the claim from the Court's file and will consider the motion.
The claim alleges that on the afternoon of February 21, 2018, claimant was riding his bicycle in an easterly direction on the Walkway in the Town of Highland "when he was precipitated to the ground because of a dangerous, defective, and hazardous condition" in the road (Claim No. 133077, ¶ 3). The claim alleges that "the front tire of [claimant's] bicycle was caused to get stuck in a deep, wide gap from an expansion joint between concrete slabs from which material normally filling said expansion joint was missing" (id.). The claim alleges that the defect was created by defendant's employees or agents or, in the alternative, that defendant had actual or constructive notice of the defect and failed to repair it (see id.).
Throughout the submissions before the Court, the terms "expansion joint," "builder's joint," and "construction joint" are used to refer to the joint in which claimant's bicycle tire allegedly became stuck. Upon a thorough review of the record, it appears that the accurate term for the joint is "builder's joint" (see Kolb Affirmation, Exhibit F [Hoppe EBT, pp. 24-25, 55], Exhibit G [Diaz EBT, pg. 12]).
The exhibits attached to claimant's summary judgment motion establish the following. Claimant testified that on the date of the accident, he was riding a newly-purchased racing bicycle equipped with hand brakes (see Kolb Affirmation, Exhibit D [Rivieccio EBT, pp. 18-19]). Claimant testified that he was an experienced biker who biked for pleasure, and that he had ridden his bicycle on the Walkway approximately six times prior to the accident on February 21, 2018 (see id. at pp. 19, 23-24). Claimant further testified that he had most recently biked over the Walkway during the summer of 2017 (see id. at pg. 24). Claimant testified that on his previous bicycle rides over the Walkway, he had not observed anything with regard to the joints on the Walkway and that "everything looked pretty good" (id. at pg. 29).
Claimant testified that at approximately 3:50 p.m. on February 21, 2018, he and his wife were biking over the Walkway in an easterly direction after a two to three hour ride (see id. at pg. 21, 23), and that when they were "maybe a quarter of the way or two-thirds of the way" across the bridge, "the bike just - didn't see - see it coming, just stopped abruptly and [he] went over the handle bar" (id. at pg. 25). Claimant testified that he had been riding his bicycle "very slowly . . . probably four miles an hour, a little bit more than walking speed, just about walking speed" at the time of the accident (id.). Claimant further testified that his bicycle stopped abruptly when the front tire of his bicycle became "stuck in the groove, it was jammed" (id.). Claimant testified that the accident happened "extremely quick. [He] just felt that the bike stopped. And then as [he] was going over, [he] put his hands out to break [his] fall and . . . [hi]s weight and everything else [couldn't] stop . . . the momentum of the fall" (id. at pg. 26), causing injuries to his face, right hand, and right knee. Although claimant had biked over the Walkway in the opposite direction at the beginning of the bike ride earlier that day, he did not notice anything about the area of the Walkway where the accident occurred because he was riding his bike on the other side of the Walkway at that time (see id. at pp. 28-29). Claimant testified that photographs of the Walkway that were taken one or two weeks after the accident showed the condition of the joint where his bicycle tire got stuck (see id. at pp. 15-17; see also id., attachments [Exhibits D-A, D-B, D-C, D-D]). The accident report that was introduced as an exhibit at claimant's EBT indicates that claimant "was biking eastbound on bridge when his front tire became stuck in joint between concrete slabs while in motion. [Claimant] was thrown over handlebars" and was injured (id., attachments [Exhibit D-3]).
The builder's joint is a space between two concrete slabs that runs longitudinally down the length of the Walkway (see Kolb Affirmation, Exhibit D [Rivieccio EBT, Exhibits D-A, P-5]).
Jeff Litwinowicz, an Assistant Park Manager employed by the Office of Parks, Recreation and Historic Preservation (OPRHP), testified at his EBT that his work would take him to the surface of the Walkway on a daily basis (see Kolb Affirmation, Exhibit E [Litwinowicz EBT, pp. 10-11). Litwinowicz testified that his duties included "ongoing maintenance procedures" such as "minor repairs to the deck surface, concrete patches, maybe leveling of protruding surfaces" (id. at pp. 12-13), and that he did not see any areas of the Walkway where the builder's joints were depressed prior to claimant's accident (id. at pg. 16). Litwinowicz testified that after claimant's accident, he learned of a prior instance of a bicycle wheel becoming lodged in an expansion joint on the Walkway (see id. at pg. 19). The day after claimant's accident, Litwinowicz photographed the area where the accident occurred (see id., pg. 27; see also id., attachment), and he found three areas of depression in the builder's joint (see id. at pp. 30, 34). Litwinowicz testified that the depression where claimant had his accident appeared to be approximately half an inch deep, but that it should not have been more than one quarter of an inch so as not to constitute a trip hazard (see id. at pp. 30-31). Litwinowicz further testified that the condition was "a safety hazard" and needed to be repaired (id. at pg. 32). Litwinowicz did not know how long the builder's joint had been in that condition prior to February 21, 2018 (see id. at pp. 32-33), and he testified that the joints on the Walkway were "not supposed to . . . give way under the weight of a bike tire with someone on it" (id. at pg. 38). Eric Hoppe, the Park Manager for the Walkway, testified that it was the responsibility of the OPRHP to inspect the Walkway "[t]o identify any failing joints or joints that needed attention and to rectify the situation or to indicate - coordinate it with a cone to secure the area for the public" (Kolb Affirmation, Exhibit F [Hoppe EBT, pg. 14]). Hoppe testified that the OPRHP did not periodically inspect all of the builder's joints on the Walkway, but that OPRHP employees traveled back and forth across the Walkway every day on an hourly basis, and that during those daily trips, they would look for areas of missing material in the builder's joints (see id. at pp, 41-42, 44).
Hoppe testified that the OPRHP made periodic repairs to the builder's joints that were installed sometime prior to the Walkway's opening in 2009, specifically, that the Sikaflex material that was used to create the joints had to be replaced (see id. at pp. 25-26), and that the appearance of depressions in the Sikaflex material used in the builder's joints was "an ongoing maintenance thing," and that such repairs were performed "on an as-needed basis" (id. at pg. 27). Hoppe testified that there was no specific requirement that OPRHP employees inspect the joints on the Walkway on a regular basis, but that employees scanned the Walkway for defects during their hourly trips back and forth across the Walkway in a variety of vehicles or on a bicycle (see id. at pp. 41-45). Hoppe testified that the Sikaflex in the builder's joints could become depressed below the surface of the concrete (see id. at pg. 29), that prior to claimant's accident, he was aware that the Sikaflex material in the builder's joints could become degraded and detach from the surface of the Walkway due to weather and the passage of time, causing a gap in the concrete in which objects could become stuck, and that prior to claimant's accident, he had seen portions of builder's joints on the Walkway come detached from the concrete, requiring replacement (see id. at pp. 31-33). Hoppe testified that the Sikaflex was repaired by placing "a backer rod that fills the void below that surface . . . and then apply the Sikaflex on top of it" (id. at pg. 34).
Zachery Diaz, a Park Worker Three employed by OPRHP, testified that he served as the "supervisor of park staff" at the Walkway (Kolb Affirmation, Exhibit G [Diaz EBT, pg. 7]). Diaz testified that "a self-leveling caulk that forms into a rubbery substance" called Sikaflex and foam tubing were used to repair the builder's joints on the Walkway (id. at pg. 13). Diaz testified that any existing material would be cleaned out of the joint, foam tubing called a "backer rod" would be inserted into the joint, and then the "self-leveling" Sikaflex would be poured on top of the backer rod (id. at pg. 25). Diaz testified that prior to claimant's accident, it was not his experience that the Sikaflex material in the builder's joints required periodic replacement, nor was there "a recurring problem with failed materials in the construction joints" (id. at pg. 16). Diaz further testified that in late 2017, there was a similar incident in which "[a] bike wheel was stuck propelling the biker over their handlebars" (id. at pg. 18) in the same builder's joint that claimant had his accident in 2018 (see id. at pp. 17, 35-36). The Patron Incident Report that was completed following the 2017 incident reflects that the individual "was riding her Bike going East, Front Wheel of the Bike was caught between sidewalk space caulking, she flew over hand bars of her bike" (id. Exhibit H [Patron Incident Report, dated July 5, 2017]). Diaz testified that a worker from the OPRHP examined the builder's joint following the 2017 accident and found that the construction material in the joint had become depressed due to the "force of the bicycle wheel pressed against" it (id., Exhibit G [Diaz EBT, pg. 23]), that it was repaired by inserting "a small section of foam," that the foam was "a temporary material" (id. at pp. 24-25; see id. at pp. 37, 45), and that no backer rod was placed prior to inserting the foam (see id. at pp. 37-38).
In the Patron Incident Report he filled out following claimant's accident, Diaz wrote that claimant "was biking eastbound on bridge when his front tire became stuck in joint between concrete slabs while in motion. [Claimant] was thrown over handlebars" (id., Exhibit D [Rivieccio EBT, attachments (Patron Incident Report)]). Diaz testified that when he arrived at the scene, he observed a bicycle wheel "wedged in a portion of the construction joint" (id. at pg. 43), and that after the bicycle was removed, Diaz examined the joint and observed "[a] depressed section of foam of some sort" that was approximately two inches deep and one to two feet long (id. at pg. 44). Diaz testified that the depressed material "was whatever [he] used or [his] staff had used to repair it since the 2017 incident" (id. at pg. 44), and that the depression had been caused by the weight of a bicycle tire (see id. at pp. 22-23; see also id. at pg. 24).
Diaz testified that prior to claimant's accident in 2018, there were no regular inspections of the Walkway, but that "any time we do drive across the bridge, we are looking for irregularities and trip hazards" (id. at pg. 31). Diaz testified that he traversed the Walkway in vehicles including cars and pickup trucks as well as on a bicycle (see id. at pp. 31-32). Diaz testified that the "deterioration and degradation of construction joints was an ongoing problem" on the Walkway prior to claimant's accident (id. at pg. 32).
Motion for Summary Judgment
Claimant now moves for summary judgment on the issue of liability, arguing that it is "undisputed" that claimant "was injured when the front tire of the bicycle that he was riding became stuck or wedged into a builder's . . . joint" on the Walkway (Kolb Affirmation, ¶ 102), and that the foam that was used to fill the joint contained a depression that was one or two feet long and approximately two inches deep (see id.). Claimant argues that in light of the testimony of Diaz and Litwinowicz that the foam that was depressed had been placed in the builder's joint following a previous accident in 2017 and that the joint was not intended to give weight under the weight of a bicycle and passenger, "the undisputed fact that the front tire of . . . [c]laimant's bicycle became stuck in the builder's joint on February 21, 2018 indicates that the section of the joint which gave way under the tire was defective" (id. at ¶ 105). Claimant further argues that the deposition testimony establishes that the defective condition of the builder's joint was caused by the negligence of defendant's employees when they filled the defect with temporary foam in 2017 rather than with Sikaflex and a backer rod (see id. at ¶¶ 106-110, 115), and that "there is no triable issue of fact that . . . claimant's bicycle tire became stuck in the builder's joint and that this was the proximate cause of his fall" (id. at ¶ 114).
Defendant opposes the motion, arguing that claimant has not demonstrated his entitlement to summary judgment on the issue of liability because he "has not established that . . . [d]efendant had notice that the temporary filler would not support a bicyclist at the time the repair was made in 2017," nor has claimant "established for how long the depressions existed prior to the accident" (Rotondi Affirmation, ¶ 14). Defendant argues that claimant thus has "failed to establish actual or constructive notice on the part of . . . [d]efendant" (id.). Defendant further argues that the motion must be denied because the issues of "whether . . . . the repair done in 2017 to the area of the construction joint was proper" and "whether . . . the filler used was proper and the method of repair was proper" require expert testimony because they "are beyond the field of ordinary knowledge and experience of the trier of fact," and claimant has failed to provide such expert proof (id. at ¶ 15).
Claimant argues in reply that he established, prima facie, that defendant's employees were negligent in repairing the builder's joint that caused claimant's accident with only a temporary foam following the earlier 2017 incident or by leaving the temporary foam in the builder's joint until claimant's accident in 2018, and that defendant failed to submit any admissible evidence establishing the existence of genuine issue of material fact (see Kolb Reply Affirmation, ¶¶ 5-10, 13). Claimant argues that defendant knew that the use of the temporary material "made it more likely that a park patron who rode his or her bicycle over the construction joint would sink into the joint and be projected over the handlebars and thereby suffer injury than if [defendant's employees] had used a permanent filler" (id. at ¶ 16), and that defendant has failed to submit any evidence that its employees were in any way prevented from "replacing or augmenting" the temporary material in the period between the 2017 incident and claimant's accident or that "properly repairing the joint, such as by using a backer rod and Sikaflex, would have been inordinately expensive or time-consuming" (id. at ¶¶ 18-19). Claimant further argues that it is irrelevant whether defendant had notice of the defective condition because claimant's theory of the case is that defendant created the defective condition of the builder's joint, and that he was not required to present expert testimony in support of his motion for summary judgment because defendant admitted that the builder's joint was unsafe through Litwinowicz's EBT testimony that builder's joints were not supposed to give way under the weight of a bicycle and its rider and that a builder's joint that could do so constituted a hazard (see id. at ¶¶ 22-25). Defendant further argues that expert testimony was not required on this motion because the issue of the use of a temporary material to repair the builder's joint following the 2017 incident "does not transcend the realm of knowledge that lay persons possess" (id. at ¶ 27).
It is well settled that a "party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact" (Giuffrida v Citibank Corp., 100 NY2d 72, 81 [2003]; see Arias v State of New York, 195 Misc 2d 64, 65 [Ct Cl 2003]). The evidence must be submitted in admissible form and must establish the movant's right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the burden does not shift to the opponent, and the motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]). "Where there is doubt as to the existence of a trial issue or where the issue is arguable, summary judgment should not be granted" (Bingell v County of Schuyler, 260 AD2d 926 [#d Dept 1999]).
The State owes to the public a nondelegable duty to design, construct, and maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978], mot to amend remittitur denied 46 NY2d 941 [1979]), but it "is not an insurer of the safety of its roadways" (Tomassi, 46 NY2d at 97). To establish the State's liability, claimant must prove by a preponderance of the credible evidence that a dangerous condition existed, that the State either created or had actual or constructive notice of the condition, that it failed to remedy or warn of the condition, and that such failure was the proximate cause of claimant's injuries (see Cappolla v City of New York, 302 AD2d 547, 548 [2d Dept 2003], lv denied 100 NY2d 511 [2003]; Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]). . "[W]hether a dangerous or defective condition exists . . . so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the [finder of fact]" (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [internal quotation marks omitted].
Here, claimant's theory of the case is that defendant's employees created the dangerous condition on the Walkway when they temporarily repaired the builder's joint with a piece of foam following a similar accident in 2017 and failed to repair the joint properly with a backer rod and Sikaflex, and that defendant's negligent repair and maintenance of the builder's joint was the proximate cause of claimant's injuries. As an initial matter, the Court agrees with claimant that because his position is that defendant affirmatively created the defective condition that caused his accident, it is irrelevant whether defendant had actual or constructive notice of the allegedly defective condition of the builder's joint (see Ackler v Odessa-Montour Cent. School Dist., 243 AD2d 902, 904 [3d Dept 1997]), and on this motion, the Court need only decide whether claimant has established prima facie that defendant's employees created a dangerous condition that proximately caused claimant's injuries.
The Appellate Division, Third Department, has stated that "[i]t is well settled that [w]hether a particular height difference . . . constitutes a dangerous or defective condition depends on the peculiar facts and circumstances of each case, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place, and circumstances of the injury" (Alig v Parkway Parking of N.Y., Inc., 36 AD3d 980, 981-982 [3d Dept 2007] [internal quotation marks omitted]). Here, Litwinowicz testified that following claimant's accident he observed a depression in the builder's joint that he estimated to be approximately one half inch in depth, while Diaz testified that the depression was approximately two inches in depth. Claimant testified that his front tire became stuck in the joint, causing his bicycle to stop and propelling claimant over the handlebars. Thus, claimant has established prima facie the existence of a dangerous condition.
Turning next to claimant's argument that defendant created the defective condition, namely, the depression in the builder's joint, it is incumbent upon claimant to support that contention with proof that defendant "created the dangerous condition by its own affirmative act" (O'Brien v City of Schenectady, 26 AD3d 655, 657 [3d Dept 2006], lv denied 7 NY3d 707 [2006] [emphasis added]; see Mercer v City of New York, 223 AD2d 688, 689 [2d Dept 1996], affd 88 NY2d 955 [1996]; Savio v State of New York, UID No. 2007-038-101 [Ct Cl, DeBow, J., Jan. 25, 2007]). Here, the evidence establishes that in July 2017, there was a depression in the builder's joint at the site of claimant's February 2018 accident, that the depression was repaired temporarily by using a section of foam, and that no backer rod was inserted under the foam. However, there is nothing in the record before the Court to demonstrate that the foam, when it was inserted into the joint seven months before the accident, could not withstand the weight of a bicycle and its rider or otherwise created a depression that would constitute a dangerous condition (see Horton v City of Schenectady, 194 AD2d 973, 975 [3d Dept 1993] ["there are no facts in the record that establish that defendant . . . created a dangerous condition through the affirmative act of negligent repair"]). Moreover, although Hoppe testified that a builder's joint was typically repaired by placing a backer rod in the void and filling it with Sikaflex, the evidence does not establish, without more, that the use of the temporary foam in 2017 was improper or that the foam was not a proper material to repair the depression created in 2017. In the absence of any showing that defendant's employees created the depression when they performed the repair in 2017, or that the use of foam to temporarily repair the builder's joint was improper, the Court concludes that claimant has failed to establish prima facie that defendant created a dangerous condition. Accordingly, that portion of claimant's motion seeking summary judgment on the issue of liability will be denied.
Motion to Strike Affirmative Defense
In the second affirmative defense raised in its Verified Answer, defendant asserts that any "damages and injuries [sustained by claimant] are attributable, in whole or in part, to the comparative negligence or culpable conduct of . . . claimant," and that any damages recoverable against defendant should "be diminished in proportion with the comparative negligence and/or culpable conduct of claimant" (Verified Answer, ¶ Fifth). Claimant seeks dismissal of the second affirmative defense, arguing that "his deposition establishes prima facie that there is no triable issue of fact with respect to that issue" (id. at ¶ 118). Claimant argues that Diaz's testimony that "he would not necessarily have been able to determine when riding a bicycle on the bridge that some portion of the [builder's] joint had begun to deteriorate or separate . . . suggests that" claimant, who testified that he did not see the builder's joint prior to the accident, "could not have been expected to determine that there was a defective portion of a builder's joint had he seen the joint before the accident occurred" (Kolb Affirmation, ¶ 119). Defendant does not address claimant's request for dismissal of the second affirmative defense, and claimant argues in reply that his motion to strike defendant's second affirmative defense should be granted in the absence of any opposition from defendant (see Kolb Reply Affirmation, ¶ 3).
The CPLR provides that "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit" (CPLR 3211 [b]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891, 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211 (b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications & Elecs., 208 AD2d 1150, 1150 [3d Dept 1994] [internal quotation marks omitted]; see Suarez v State of New York, 60 AD3d 1243, 1243 [3d Dept 2009]). Importantly, claimant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Servs., LLC, 34 AD3d 559, 559 [2d Dept 2006]), and where the "claimant fail[s] to conclusively show that the defenses lack[] merit," the motion is properly denied (Suarez, 60 AD3d at 1243).
As noted above, there is photographic evidence which plainly depicts a defect in the builders joint, but there was conflicting deposition testimony regarding the size of the defective condition of the builder's joint following claimant's accident, ranging from one-half inch in depth to two inches in depth. Moreover, claimant has not submitted any evidence that the conditions at the time of the accident - such as the weather or the amount of sunlight at that time of the day, or the number of other bikers and pedestrians on the Walkway - prevented him from observing the defect prior to the accident. In the Court's view, claimant has offered no competent or persuasive proof that defendant is the only culpable party and that his injuries were not caused by his own comparative negligence, and thus claimant has failed to demonstrate that the affirmative defense lacks merit as a matter of law. Accordingly, that branch of claimant's motion seeking dismissal of the second affirmative defense will be denied.
Accordingly, it is
ORDERED, that claimant's motion number M-96552 is DENIED.
April 29, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim No. 133077, filed May 13, 2019; 2. Verified Answer, filed June 21, 2019; 3. Notice of Motion, dated March 15, 2021; 4. Affirmation of Michael Kolb, Esq., dated March 16, 2021, with Exhibits A-I; 5. Affirmation of Anthony Rotondi, AAG, in Opposition to Claimant's Motion for Summary Judgment, dated March 31, 2021; 6. Reply Affirmation of Michael Kolb, Esq., dated April 6, 2021.