Opinion
# 2017-018-834 Claim No. 124123 Motion No. M-90466
10-10-2017
KAREN PRIMER v. STATE OF NEW YORK
CELLINO & BARNES, P.C. By: Nicholas B. Davis, Esquire ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General
Synopsis
Claimant's motion for partial summary judgment on her claim for damages is granted only to the extent of establishing Defendant's negligence. The issues of serious personal injury and damages will be determined at trial (Insurance Law § 5102 [d]).
Case information
| UID: | 2017-018-834 |
| Claimant(s): | KAREN PRIMER |
| Claimant short name: | PRIMER |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 124123 |
| Motion number(s): | M-90466 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | CELLINO & BARNES, P.C. By: Nicholas B. Davis, Esquire |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Bonnie Gail Levy, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 10, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings this motion seeking partial summary judgment on her claim for damages for personal injuries she sustained from a rear-end collision involving a State vehicle. Defendant opposes the motion.
In the claim, Claimant alleges Defendant's employee drove a Snorkel Boom Lift into the rear-end of her stopped vehicle. Defendant interposed an answer to the claim denying the allegations and asserting eight affirmative defenses. Discovery has been completed and a note of issue filed. This motion is timely (CPLR 3212 [a]).
A motion for summary judgment places the burden on the moving party to come forward with proof in admissible form to make out a prima facie case, showing its entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "Failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers." (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The evidence submitted in support of a motion for summary judgment must be viewed in the light most favorable to the non-moving party, giving that party the benefit of any favorable inference (Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).
The undisputed facts establish that on November 6, 2012, New York State Department of Transportation (DOT) employees were moving a 60-foot Snorkel Boom Lift (also referred to as an aerial lift) to the State University of New York Upstate Medical Center (Upstate) from the State Office Building at 333 East Washington Street in Syracuse, New York, a distance witnesses estimated to be approximately five miles. The lift has a basket with the operating controls in the back, approximately 15 feet from the turning wheels in front. The basket was about 3-to-5 feet off of the ground, and at its top speed it only traveled about 4 mph. The operator, Mr. Lloyd Trumble, testified that he had been specially trained and certified to operate an aerial lift, and had used this lift several times before that day. He reported to his foreman, Mr. William Raesky, that morning about 7:00 a.m. to get his work orders. When Mr. Trumble learned that he was expected to drive the lift to Upstate, he told Mr. Raesky's supervisor, James Mallinger, that he did not want to drive the lift on public roads because it was not safe. He requested a trailer to transport it but was told there was none available. Mr. Raesky agreed that it was not a good idea to take the lift on the roads, however, Mr. Mallinger insisted that the lift be driven to Upstate.
To get the lift to the destination, Mr. Raesky directed that he would drive a pickup truck in front of the lift, and a third crew member, Mr. Terry Searles, would drive a flatbed truck and follow the lift. Mr. Raesky wanted to keep vehicles from getting between the two trucks and the lift. After checking over the lift, Mr. Trumble operated it out of the parking lot on Washington Street behind Mr. Raesky's white pickup truck. Mr. Trumble had difficulty seeing Mr. Raesky's vehicle because of the placement of the bucket and the engine compartment which blocked a clear view of the road. The vehicles turned onto Erie Boulevard East, a four-lane road with two lanes east and westbound. The three DOT vehicles stayed in the right, eastbound lane the entire time. Given the slow speed at which the lift traveled, many vehicles passed them on the left.
As the convoy approached McBride Street, Mr. Raesky turned right onto McBride with a green light. Mr. Trumble could not see the color of the traffic signal but he believes he saw cars in the left lane stopping so he stopped. According to Mr. Searles, the light changed to yellow then red just after Mr. Raesky turned. After turning the corner, Mr. Raesky never saw Mr. Trumble get to the intersection so he went around the block. Mr. Trumble saw the light turn green and then he started to move the lift.
Claimant and David Primer both recalled heading east on Erie Boulevard, but Claimant could not remember how they had gotten onto Erie Boulevard. Mr. Primer noticed the lift near Smith's Restaurant Supply, a business on the south side of Erie Boulevard, about one block west of the McBride Street intersection. Claimant passed the slow-moving truck and lift from the left- hand lane. Immediately after she passed them, she moved into the right lane where she stopped at the red light. Mr. Primer estimated they were stopped at the red light for some time before the lift hit them. Claimant could not recall how long they were stopped but said she was three car-lengths in front of the lift when she changed lanes. Both Claimant and David Primer said the lift hit them twice.
Mr. Primer thought it was one-to-three minutes.
None of the DOT workers recall seeing Claimant's car pass them and move to the right lane. After the light turned green and Mr. Trumble started to move, a pedestrian on the corner told him he had hit a car, so he shut down the lift and got out. Mr. Raesky had circled the block and did not witness the accident. After the accident, a trailer was brought to the scene to transport the lift to Upstate. Claimant and her other passengers were taken to the hospital by ambulance, although, they were able to walk to the ambulance. Claimant's 2010 Chevrolet Malibu had damage to the trunk.
Vehicle and Traffic Law section 1129 (a) provides:
"The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."
" 'A rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle.' (Ruzcki v Baker, 301 AD2d 48, 49 [4th Dept 2002]) quoting Power v Hupart, 260 AD2d 458 [2d Dept 1999]). This presumption of negligence imposes upon the driver of the rear vehicle a duty to present a non-negligent explanation for the collision (Kress v Allen, 11 AD3d 985 [4th Dept 2004]). The failure to maintain a safe distance, in the absence of a reasonable explanation, constitutes negligence as a matter of law (see Roll v Gavitt, 77 AD3d 1412 [4th Dept 2010]; Inzano v Brucculeri, 257 AD2d 605 [2d Dept 1999)."
Defendant argues that summary judgment must be denied because there are issues of fact relating to proximate cause and contributory negligence. It is Defendant's position that since Mr. Raesky never saw Claimant's car before he turned onto McBride Street, that Claimant's vehicle must have unsafely switched into the right-hand lane in front of the lift too quickly without proper attention to the size and difficult maneuverability of the lift. The State also contends that Claimant should have known that Mr. Searles was driving behind the lift to prevent other cars from getting between his vehicle and the lift, and she should have assumed there was another vehicle doing the same in front of the lift. These arguments do not raise a non-negligent explanation for the rear-end collision. Rather, the evidence indicates Mr. Trumble was driving a vehicle on the roadway with other traffic when he could not see the road in front of him because of the lift's configuration. Mr. Raesky failed to maintain a close enough distance to the lift to prevent other vehicles from penetrating the convoy and, in fact, he failed to maintain visual contact with the lift. These are the proximate causes of this accident.
Accordingly, Claimant's motion is GRANTED only to the extent of establishing Defendant's negligence (see Ruzycki v Baker, 301 AD2d 48, 51 [4th Dept 2002]). As the issue of serious physical injury was not addressed in this motion, the issue of liability cannot be determined at this juncture (see Insurance Law § 5104 [a]). The issues of serious injury and damages will be determined at trial, which will be scheduled at a pre-trial conference. It will be Claimant's burden at trial to prove she sustained a serious physical injury pursuant to the Insurance Law (Insurance Law § 5102 [d]).
LET INTERLOCUTORY JUDGMENT BE ENTERED in accordance with this Decision and Order.
October 10, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this matter: 1) Notice of Motion. 2) Affirmation of Nicholas B. Davis, Esquire, in support, with exhibits attached thereto. 3) Affirmation of Bonnie Gail Levy, Esquire, in opposition.