Opinion
# 2014-045-028 Claim No. 118564 Motion No. M-84679
09-29-2014
AARON HOMER v. THE STATE OF NEW YORK
Law Offices of Eric H. Green & Associates By: Leopold Raic, Esq. Hon. Eric T. Schneiderman, Attorney General By: John L. Belford, IV, Assistant Attorney General
Synopsis
Claimant's motion for summary judgment.
Case information
| UID: | 2014-045-028 |
| Claimant(s): | AARON HOMER |
| Claimant short name: | HOMER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 118564 |
| Motion number(s): | M-84679 |
| Cross-motion number(s): | |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Law Offices of Eric H. Green & Associates By: Leopold Raic, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: John L. Belford, IV, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 29, 2014 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion, Attorney's Affirmation in Support, Memorandum of Law with annexed Exhibits A-D, Defendant's Affirmation in Opposition with annexed Exhibit 1 and Claimant's Reply Affirmation with annexed Exhibit E.
Claimant, Aaron Homer, has brought this motion pursuant to CPLR 3212 seeking an order granting him summary judgment. Defendant, the State of New York, has opposed this motion.
Claimant states that on December 3, 2008 he was involved in an accident that occurred at the Loop Bridge over Long Creek near Jones Beach. At that time claimant was employed as a project engineer for Olsen Engineering and was "in a bucket truck" being operated by a New York State Department of Transportation (DOT) employee. Claimant states that the DOT employee moved the bucket in such a manner as to get the arm of the bucket stuck on the phalange of a horizontal I-beam. Claimant continues that in order to dislodge the bucket from the I-beam, the DOT employee "jerked the bucket back" which caused them to elevate at a high rate of speed. The movement of the bucket caused claimant to strike his head on a second horizontal beam.
In response defendant identifies the DOT operator of the bucket truck as Phil Gaches-Dides. Mr. Gaches-Dides explained that he had received training in operating bucket trucks and had been given a certification in the operation of a bucket truck. Mr. Gaches-Dides states that his training included, but was not limited to, how to operate a bucket truck, its weight limits, the use of its bypass switches and what to do if the truck gets stuck.
Mr. Gaches-Dides states that on December 3, 2008, he was assigned to the Loop Bridge to assist an engineer, claimant, in regard to an inspection of the Loop Bridge. Mr. Gaches-Dides' job assignment was to operate the bucket truck. Mr. Gaches-Dides and claimant got into the bucket portion of the truck and went under the bridge. Claimant directed Mr. Gaches-Dides to various locations under the bridge that needed to be inspected. During the morning they completed one side of the bridge and after lunch they started on the other side of the bridge. At that time claimant directed Mr. Gaches-Dides to move the bucket to a specific location that needed to be inspected. In attempting to get to that position the bucket began to move slowly. Mr. Gaches-Dides believed that the cold weather was affecting the hydraulics of the truck. Mr. Gaches-Dides explains that he told claimant to "hold on" as he attempted to bring the bucket back to the position it was in prior to his attempt to get claimant closer to the location he requested. Mr. Gaches-Dides states that he pulled the "fly controller" and the bucket bounced up. It was only afterwards that Mr. Gaches-Dides became aware that the bucket had become hung up on a phalange under the bucket. Mr. Gaches-Dides asserts that he had no reason to believe the bucket was hung up prior to the incident occurring since in the years he had operated the bucket truck he never had a bucket get stuck on a beam under a bridge.
Mr. Gaches-Dides states that on the day of the incident he operated the bucket truck in a safe and reasonable manner. He continues that all the actions he took were in accordance with the training he received with regard to the operation of the bucket truck. Specifically, Mr Gaches-Dides claims that he was keeping a look out for any potential hazards or obstructions. He did not perceive the phalange to be an obstruction or hazard since he had been working in similar locations during the day without incident. Mr. Gaches-Dides explains that he was not attempting to dislodge the bucket in the moments prior to the incident because he did not even know that the bucket was in contact with the bridge at that time. He states that the part of the bucket which came into contact with the bridge is located under the bucket and was not visible from inside the bucket. Mr. Gaches-Dides asserts that he did not jerk the bucket controllers or cause the bucket to elevate by the control mechanisms. He also states that at all times prior to the incident he faced the direction he intended the bucket to travel.
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Med. Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party (Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634 [2d Dept 2010]).
First the Court must address the issue of Labor Law claims in this matter. As the parties are aware, there were two motions made by claimant seeking permission to file a late claim in this matter. The first motion was replete with infirmities which necessitated that the motion be denied by this Court. The Court identified many of these infirmities in its Decision and Order filed August 6, 2009. Of utmost importance here, the Court pointed out that a determination of merit could not be reached regarding any labor law claims since claimant failed to specify the sections of the labor law that he is proceeding under, the underlying factual and legal factual justification for each section as well as, where relevant, the specific sections of the industrial code which may apply to the case at hand.
These deficiencies were not remedied in claimant's second motion to file a late claim. As a result, this Court was constrained to grant claimant's second motion to file a late claim only in regard to his claim based on "simple common law negligence." Thus, any labor law claims are not properly before the Court and will not be considered.
The Court finds that the evidence submitted by claimant in support of this motion does not eliminate all material issues of fact from the case and that res ipsa does not apply to the facts of this case. Claimant's scant affidavit failed to establish, prima facie, his required burden to support summary judgment in his favor (Bonaventura v Galpin, 119 AD3d 625 [2d Dept 2014]). Additionally, defendant has raised various issues of fact through the affidavit of Mr. Gaches-Dides including but not limited to whether he operated the bucket truck in a negligent fashion and whether claimant's actions may have contributed to the happening of the accident (Kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]).
Therefore, for the foregoing reasons, claimant's motion is denied.
September 29, 2014
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims