Opinion
# 2016-015-168 Claim No. 122598 Motion No. M-88726
10-24-2016
LYNN SULLIVAN, as Executrix of the Estate of MARK MCGOWAN, DECEASED v. THE STATE OF NEW YORK
Mainetti, Mainetti and O'Connor, P.C. By: Michael Kolb, Esquire Honorable Eric T. Schneiderman, Attorney General By: Joan Matalavage, Esquire Assistant Attorney General
Synopsis
Defendant moved for summary judgment arguing that, contrary to the allegations in the claim, the traffic lights at the intersection where the motor vehicle accident occurred were working properly. Included in defendant's motion, however, was a copy of the police officers' investigation and examination before trial testimony indicating that the traffic lights were not working properly. Consequently, defendant failed establish its entitlement to summary judgment as a matter of law. Defendant's alternative argument that it did not have notice of the allegedly malfunctioning traffic lights was raised for the first time in reply and would not be considered.
Case information
| UID: | 2016-015-168 |
| Claimant(s): | LYNN SULLIVAN, as Executrix of the Estate of MARK MCGOWAN, DECEASED |
| Claimant short name: | SULLIVAN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122598 |
| Motion number(s): | M-88726 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Mainetti, Mainetti and O'Connor, P.C. By: Michael Kolb, Esquire |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Joan Matalavage, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 24, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212.
Claimant, as executrix of the estate of Mark McGowan, seeks damages for the pain and suffering and wrongful death of the decedent following a motor vehicle accident on February 28, 2013 at the intersection of Route 9W and Garraghan Drive in the City of Kingston, New York. According to the claim, "[c]laimant's decedent, MARK MCGOWAN[,] was attempting to traverse the aforementioned intersection and was struck by another vehicle at that location due to the negligently maintained traffic lights and disabled traffic light coordination which created a hazardous condition" (defendant's Exhibit A, Amended Claim, ¶ 3). It is undisputed that the vehicle operated by the decedent was traveling southbound on Route 9W when it collided with the vehicle operated by Thaddeus Musialkiewicz, who had attempted a left turn onto Garraghan Drive from the northbound left-turn lane of Route 9W. As reflected in the police report submitted both in support of and in opposition to the motion (defendant's Exhibit E; claimant's Exhibit 1), both vehicle operators informed the police at the accident scene that they were proceeding through a green light. The examination before trial transcript of Mr. Musialkiewicz, submitted by defendant in support of its motion, indicates that he proceeded to turn left from the left-turn lane of Route 9W after the left-turn arrow turned green (defendant's Exhibit D, pp. 9, 14). Inasmuch as the vehicle operators both stated to the police that the light facing them was green, an investigation was performed by Police Officers Peter Booth and Roger Boughton of the City of Kingston Police Department on March 1, 2013, one day after the accident. The results of this investigation are reflected in both the police report (defendant's Exhibit E; claimant's Exhibit 1) as well as the transcripts of the police officers' examinations before trial taken in the pending Supreme Court actions, which were also submitted by the defendant in support of its motion (defendant's Exhibit F). The police report summarizes the results of the investigation as follows:
Claimant's decedent died on February 12, 2014 following surgery allegedly necessitated by the accident.
"North Bond [sic] lane the left turn arrow is inconsistent depending upon wether [sic] the sensor is set of [sic] for the most part the arrow switches within ten seconds. At one point this was being observed by officers in both the north and south bond [sic] lane at the same time. Officer in south bond [sic] lane observed a vehicle that was making the left hand turn already in the middle of the intersection before the light changes to red. Note the vehicle made the left on the green arrow when the light was just changing from yellow to red" (defendant's Exhibit E; claimant's Exhibit 1).
While the report of the investigation is not entirely clear, the officers' described their investigation into the functioning of the traffic light during their examination before trial testimony. With Officer Boughton parked on the shoulder of the northbound lanes and Officer Booth parked on the shoulder of the southbound lanes, they each observed several cycles of the traffic light at the intersection and communicated with each other via radio. The conclusion reached by the officers was that at times the left-turn arrow facing northbound traffic where Officer Boughton was stationed and the light for southbound traffic where Officer Booth was stationed were green at the same time (defendant's Exhibit F, Booth EBT, p. 7; Boughton EBT, pp. 23, 27). According to Officer Boughton, his notes of the investigation indicate "that the vehicle that is making a left turn is already in the middle of the intersection before the light changed red on the northbound side" (Boughton EBT, p. 23).
In addition to the aforementioned proof, defendant submitted the affidavits of Maureen Kuinlan and Jason Kostner in support of its motion. Ms. Kuinlan is a licensed professional engineer employed by the New York State Department of Transportation as a supervisor in the Traffic and Safety Department responsible for the operation and maintenance of traffic control signals. Ms. Kuinlan describes in her affidavit the various phases of the traffic signals at the subject intersection and states that the traffic control signals are programmed to operate so that "if there is an incident of failure to comply with the required program, the signals will go to a flashing globe signal with drivers in one direction receiving a red flashing globe . . . and drivers in opposing lanes receiving a flashing yellow signal. . . . If this occurs, the monitors at the location of the traffic signals will document a malfunction of the programmed displays" (defendant's Exhibit G,¶ 8). Ms. Kuinlan states further that based upon her review of the records, on March 1, 2013 they received a report from the City of Kingston Police Department that the signal at the subject intersection "was changing from yellow to green too quickly" (id. at ¶ 9). According to Ms. Kuinlan, "had there been any interruption in the normal functioning of the traffic signals in question, there would have been a triggering of the fail safe backup operation" which would have been noted at the monitor where the signals are located (id. at ¶ 9). The affidavit of Mr. Kostner reflects that he inspected the traffic signals on March 1, 2013 and the signals "were operating as programmed to operate", had not reverted to the flashing red and yellow globes, and "there was no indication whatsoever that there had been any failure of the normal programming for this traffic control set up" (defendant's Exhibit H, ¶ 5).
Defendant's sole contention in support of its motion for summary judgment is that the traffic signals at the intersection where the accident occurred were operating properly at the time of the accident. In an affidavit submitted in reply, Ms. Kuinlan states further that even if the signals were malfunctioning, there were no work orders or reports for at least eight months prior to this accident.
It is well settled that "the summary judgment movant bears the heavy burden of establishing 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' " (Deleon v New York City Sanitation Dept., 25 NY3d 1102 [2015], quoting Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012]). In this regard, CPLR 3212 specifically provides that a motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party." Only where the movant has made such a showing does the burden shift to the opposing party "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Here, defendant failed to make a prima facie showing of its entitlement to summary judgment as a matter of law. Although the affidavits of Ms. Kuinlan and Mr. Kostner indicate that the traffic signals at the intersection were operating normally on the day of the accident, the police report and deposition testimony of Police Officers Booth and Boughton, also submitted by the defendant in support of the motion, reflect otherwise. In view of this conflicting evidence, the defendant failed to sustain its burden of demonstrating the absence of any material issues of fact (Sabatino v 425 Oser Ave., LLC, 87 AD3d 1127 [2d Dept 2011]; Roofeh v 141 Great Neck Rd. Condominium, 85 AD3d 893 [2d Dept 2011]; Mazzio v Highland Homeowners Assn. & Condos, 63 AD3d 1015 [2d Dept 2009]). Defendant's contention that the only evidence of a traffic signal malfunction are the hearsay statements contained in the police report is belied by the examination before trial transcripts of the police officers submitted in support of its motion. Moreover, with respect to the police report "[a] party seeking to introduce evidence under the [business record] exception [to the hearsay rule] must demonstrate that 'each participant in the chain producing the record, from the initial declarant to the final entrant, [was] acting within the course of regular business conduct' when the record was made" (People v Schlesinger Electrical Contrs., Inc., ___AD3d ___, 2016 NY Slip Op 06742 [1st Dept 2016], quoting Matter of Leon RR, 48 NY2d 117, 122 [1979]; see also Johnson v Lutz, 253 NY 124 [1930]; Lindsay v Academy Broadway Corp., 198 AD2d 641, 642 [3d Dept 1993]; cf. Memenza v Cole, 131 AD3d 1020 [2d Dept 2015]; Murray v Donlan, 77 AD2d 337 [2d Dept 1980], appeal dismissed 52 NY2d 1071 [1981]; Toll v State of New York, 32 AD2d 47 [3d Dept 1969]). While the parties to this action were under no business duty to report to the police how the accident occurred, the police officers' personal observations of the manner in which the traffic signals functioned at the intersection were made in the regular course of their police duties and the record memorializing their observations was prepared in the regular course of police business (see CPLR 4518 [a]; see Lindsay, 198 AD2d at 642). That portion of the police report which reflects the police officers' personal observations of the traffic signals' operation is therefore admissible under the business record exception to the hearsay exclusionary rule and is properly considered in determining whether defendant established the absence of material questions of fact. Upon consideration of the police officers' observations of the traffic signals' operation, memorialized in the police report and described in their examination before trial transcripts (all of which were submitted by the defendant in support of its motion), it is clear that defendant failed to establish its entitlement to summary judgment as a matter of law.
Defendant's contention that summary judgment is warranted on the alternative ground that it lacked notice of any signal malfunction at the subject intersection is raised for the first time in reply. "Reply papers are intended to address contentions raised in opposition to a motion and not to supplement a motion with new argument" (Oglesby v Barragan, 135 AD3d 1215, 1216 [3d Dept 2016]; see also US Bank N.A. v Thurm, 140 AD3d 1578, 1579 [3d Dept 2016]; Jones v Castlerick, LLC, 128 AD3d 1153, 1154 [3d Dept 2015]; Strouse v Town of Austerlitz, 129 AD3d 1362, 1363 [3d Dept 2015]). Insofar as the claimant has not been given the opportunity to address this argument, summary judgment on this basis would be inappropriate (cf.,Regan v City of New York, 127 AD3d 843 [2d Dept 2015]; Watt v County of Nassau, 130 AD3d 613 [2d Dept 2015]; Babcock v State of New York, UID No. 2011-029-054 [Ct Cl, Mignano, J., Dec. 23, 2011]).
Based on the foregoing, defendant's motion is denied.
October 24, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
Notice of motion dated June 7, 2016;
Affidavit of Joan Matalavage sworn to June 9, 2016 with exhibits;
Memorandum of law of Joan Matalavage dated June 8, 2016;
Affirmation of Michael Kolb dated June 30, 2016 with exhibit;
Memorandum of law of Michael Kolb in opposition to motion for summary judgment dated June 30, 2016 with exhibit;
Reply affidavit of Joan Matalavage sworn to July 13, 2016 with exhibits.