Opinion
# 2014-028-515 Claim No. 119923 Motion No. M-84473
06-30-2014
RICHARD E. ROLLS v. THE STATE OF NEW YORK
LIPSITZ GREEN SCIME CAMBRIA LLP BY: Max Humann, Esq. HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Gregory P. Miller, Esq. Assistant Attorney General
Synopsis
Claimant's motion for summary judgment is denied as there are questions of fact as to whether Defendant's negligence was the sole proximate cause of the accident and whether Claimant's alleged negligence contributed to the accident.
Case information
| UID: | 2014-028-515 |
| Claimant(s): | RICHARD E. ROLLS |
| Claimant short name: | ROLLS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended to reflect the State of New York as the only proper Defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119923 |
| Motion number(s): | M-84473 |
| Cross-motion number(s): | |
| Judge: | RICHARD E. SISE |
| Claimant's attorney: | LIPSITZ GREEN SCIME CAMBRIA LLP BY: Max Humann, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Gregory P. Miller, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 30, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following were read and considered with respect to Claimant's motion for summary judgment:
1. Notice of Motion dated December 18, 2013 and Affirmation of Max Humann, Esq., affirmed December 17, 2013, with annexed Exhibits A-F;
2. Answering Affirmation of Assistant Attorney General Gregory P. Miller affirmed February 27, 2014.
Claim filed June 3, 2011; Answer filed July 8, 2011.
This is an action for personal injuries arising out of an automobile/motorcycle accident which occurred on April 27, 2011 at approximately 8:29 a.m. At the time of the accident, Claimant was traveling southbound on Route 62, a two lane highway, in the Town of Conewango, New York on his Softail Harley-Davidson motorcycle. At his deposition, Claimant guesstimated that he was traveling at approximately 50 miles per hour in a 55 miles per hour zone as he approached the intersection with Cowens Corners Road. At this intersection, in the direction Claimant was traveling, Route 62 makes a 90 degree turn to the right toward the Town of Ellington, New York. It was Claimant's intention to proceed straight through the intersection. There were no traffic control devices governing traffic proceeding southbound through the intersection. Vehicles traveling eastbound, however, were governed by a stop sign at the intersection. As Claimant approached the intersection, he saw a red Prius automobile heading eastbound rolling forward at the stop sign. When Claimant saw the Prius roll forward, he engaged his hand and foot brakes and slowed down. The Prius stopped.
The red Prius was owned by the State of New York and was driven by Steven Raynor in the course of his employment as a Psychologist 2 with the Western New York Developmental Disability Services Office (DDSO). At the time of the accident, Mr. Raynor was traveling from his home office in Ellington, New York and was headed to a psychology meeting at the North Road Day Habilitation Center in Perrysburg, New York. Mr. Raynor testified at his deposition that he stopped at the stop sign at the intersection for one to two seconds. He looked to his left and saw no approaching vehicles and looked to his right and saw none approaching. As he started to pull out into the intersection, he looked to his right and to his left again. When he looked to his left, he saw Claimant's motorcycle in the intersection, right in front of his car, swerving to avoid him. Mr. Raynor's Prius came to rest before the double yellow lines. The rear of his vehicle had not completely crossed the white fog line.
When Claimant saw the red vehicle proceed into the intersection, he put on his hand and foot brakes for the second time and swerved to his left to avoid the vehicle. Claimant estimated that he was about 25 feet from the center of the intersection when the red vehicle pulled out into the intersection. The last thing Claimant remembered was seeing the red car very close, flashes and a jarring feeling. Claimant apparently swerved to his left to avoid the Prius, lost control of his motorcycle, and ended up on the roadway. He does not know whether his motorcycle made contact with Defendant's Prius. According to Mr. Raynor, no part of Claimant's motorcycle came into contact with the Prius.
Claimant moves for summary judgment in his favor alleging that the State of New York is liable for the negligence of its employee, Steven Raynor, in failing to yield the right-of-way to Claimant. In addition, Claimant alleges that the negligence of the State of New York was the sole proximate cause of the accident.
The rule governing summary judgment is well established: "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 N,Y. Univ. Med. Ctr., 64 NY2d 851,853 [1985]), and such showing must be made "by tender of evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a material and triable issue of fact (Sillman v Twentieth-Century Fox Film Corp., 3 NY2d 395, 404 [1957]). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light must favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus., 258 AD2d 776 [3rd Dept 1999]). Summary judgment is rarely appropriate in negligence actions "because... there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances" (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). In addition, there can be more than one proximate cause of an accident (Aloi v Ellis, 96 AD3d 1564 [4th Dept 2012]), and questions of proximate cause are usually left to the trier-of-fact (Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]).
"It is well settled that a driver who has the right-of-way is entitled to anticipate that drivers of other vehicles will obey the traffic laws requiring them to yield" (Malbory v David Chevrolet Buick Pontiac, Inc., 108 AD3d 1109, 1110 [4th Dept 2013]; Vehicle & Traffic Law § 1142 [a]). This does not mean, however, that a driver with the right-of-way may blindly enter an intersection. Rather, he must operate his vehicle in a careful and prudent manner to avoid an accident (Strasburg v Campbell, 28 AD3d 1131 [4th Dept 2006]).
Thus, to establish his entitlement to summary judgment, Claimant must not only establish Defendant's negligence as a matter of law, but also the absence of any comparative fault, which was raised as an affirmative defense in Defendant's answer and amplified in Defendant's bill of particulars (Sauter v Calabretta, 90 AD3d 1702 [4th Dept 2011]; Drew v J. A. Carmen Trucking Co., Inc., 8 AD3d 1112 [4th Dept 2004]). In support of his motion, Claimant submitted his deposition testimony and that of the Defendant's employee, Steven Raynor, and the police report. This evidence showed that Claimant had the right-of-way, and, according to Claimant's own testimony, that he used his brakes once when he first saw Defendant's vehicle roll forward and again, when he saw Defendant's vehicle pull out into the intersection. Claimant's own submissions, however, raise triable questions of fact as to whether he exercised due care in entering the intersection and in trying to avoid injury. For example, Mr. Raynor testified that he looked to his right and to his left at the intersection twice, but did not see Claimant's motorcycle until it was right in front of his car, raising a question regarding the speed of the motorcycle and whether Claimant kept a proper lookout to avoid an accident. Moreover, when questioned at his deposition, Claimant admitted that his memory of the events right before the accident were blurry. He remembered seeing the red of a car close to his motorcycle, flashes, a jarring feeling, tumbling and then the need to get up off the roadway, raising questions whether there was something more Claimant could have done in the seconds before the accident to keep his motorcycle under control and to avoid injury (Fried v Missur, 115 AD3d 910 [2d Dept 2014]; Strasburg v Campbell, 28 AD3d 1131 [4th Dept 2006]).
Defendant's bill of particulars is not attached to the motion papers. It was, however, filed with the Court and is part of the Court's file.
At trial, it may well be established that the negligence of the Defendant was the primary or even the sole cause of the accident. On the record before it, however, the Court concludes that Claimant " 'failed to submit evidence sufficient to establish, prima facie, that the [Defendant's] alleged negligence...was the sole proximate cause of the accident, that he kept a proper lookout, and that his alleged negligence, if any, did not contribute to the happening of the accident' " (Sauter v Calabretta, supra at 1704, citing Topalis v Zwolski, 76 AD3d 524, 525 [2d Dept 2010]). In light of this conclusion that Claimant failed to meet his burden on summary judgment motion, it is not necessary for the Court to review the sufficiency of Defendant's opposing papers (id.).
Based on the foregoing, Claimant's motion No. M-84473 for summary judgment is denied.
June 30, 2014
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims