Opinion
# 2017-018-846 Claim No. 125759 Motion No. M-90889
11-08-2017
MICHAEL SABINE v. STATE OF NEW YORK
KENNY & KENNY, PLLC By: Michael P. Kenny, 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 is DENIED, and his motion seeking to strike is GRANTED to the extent that Defendant's first, fifth, and seventh affirmative defenses are DISMISSED and the motion is DENIED as to Defendant's second affirmative defense.
Case information
| UID: | 2017-018-846 |
| Claimant(s): | MICHAEL SABINE |
| Claimant short name: | SABINE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125759 |
| Motion number(s): | M-90889 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | KENNY & KENNY, PLLC By: Michael P. Kenny, 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: | November 8, 2017 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant brings a motion for partial summary judgment on the issue of liability and seeks an Order striking Defendant's first, second, fifth, and seventh affirmative defenses. Defendant opposes the motion.
Claimant served a notice of intention to file a claim on Defendant on March 18, 2014. Claimant served a notice of claim on Defendant on March 12, 2015 and filed the claim on March 9, 2015. Issue was joined on October 29, 2015, and Defendant raised nine affirmative defenses. No note of issue has been filed.
In support of his motion, Claimant relies upon the pleadings, Defendant's Bill of Particulars, and the depositions of Claimant and Defendant's employee, Linzy S. Patrick. As a preliminary matter Defendant, in response to this motion, consents to striking the first and seventh affirmative defenses.
From the parties submissions, many of the facts surrounding the accident are not in dispute. On December 17, 2013, at approximately12:30 p.m., near Geneva, Claimant was transporting 30 bales of hay which he had picked up and loaded on Route 96A. The hay was wire wrapped. Claimant recalled it was a cold day and it had started to snow. Claimant drove along Route 96A traveling around 10 miles per hour (mph) below the 55 mph speed limit. He had driven approximately a mile from where he picked up the hay when he first noticed a State pickup truck beside him in the passing lane on an overpass bridge. Right after it passed, the truck lost control, hit the guide rail on the left, spun around and crossed into his lane. Although he testified that he applied his brakes, he couldn't stop in time to avoid a collision. Claimant testified that he didn't find the roads slippery at the time of the accident.
In 2013, Linzy S. Patrick was the office manager at Seneca Lake State Park. On December 17, Ms. Patrick was directed to use a State-owned pickup truck to drive to the regional State Park's office in Trumansburg to attend a permits meeting. The meeting started at 10:00 a.m. that day. Ms. Patrick described the weather going to Trumansburg as snowy, and she noticed when she left the park that the pickup truck slid or skidded a bit when she turned right. She testified that she drove approximately 30 mph to her meeting, as the roads were more slippery near Trumansburg. She left the regional office around 11:30 a.m. and took the same route back. She testified that the roads didn't seem to have been plowed and were "sludgy," but her vehicle did not slide prior to the accident. She recalled driving cautiously at approximately 40 mph on the way back when she got behind Claimant's pickup truck, who was traveling between 40 and 45 mph in the northbound, right-hand lane. Ms. Patrick testified that there was "lots of hay coming from the back of his truck," it seemed to be "snowing hay." The hay was placed in the bed and higher than the cab of Claimant's truck blocking a view of the back window. She stayed behind his truck, approximately two pickup-truck lengths, for a short time before she switched lanes to pass him because she found the flying hay distracting. She described the road at this location as wet and clear but the edge of the lanes were "sludgy." As she began to pass the truck she accelerated to around 50 mph, and just as she got almost past Claimant's vehicle on the bridge, the driver's side of her truck struck the guide rail. Ms. Patrick testified that the back of the truck started to fishtail and she couldn't control it. Once the truck hit the guide rail, it "bounced" off and the back end spun around so that the truck was facing in the opposite direction in both lanes of travel. Claimant's truck struck Ms. Patrick's vehicle.
Exhibit F, page 43.
Exhibit F, page 49
Ms. Patrick testified that she made the decision to pass the truck and tried to do so carefully, although, she acknowledged that passing on the bridge probably was not safe. She estimated approximately 50 to 100 pieces, approximately 2-to-5 inches-long, of hay came off of Claimant's truck as she drove behind him. In response to questioning, she acknowledged that the hay did not prevent her from seeing Claimant's truck or the road but described it as distracting. She testified that she probably would not have switched lanes if the hay was not coming off of Claimant's truck. Ms. Patrick was issued a traffic ticket for unsafe lane change and pled guilty to a reduced infraction.
There is no indication that a ticket was issued to Ms. Patrick from the police report, although, the police report does indicate a contributing factor was Ms. Patrick's unsafe lane change. See Claimant'S Exhibit G and Defendant's Exhibit 2.
Claimant asserts that the undisputed facts establish that Ms. Patrick changed lanes unsafely in violation of Vehicle and Traffic law sections 1101, 1122 (a) and 1128 (a) and caused the collision with his vehicle. Ms. Patrick's violation of the Vehicle and Traffic Laws were the sole proximate cause of the accident, according to Claimant, warranting summary judgment in his favor. Claimant also argues that based upon Ms. Patrick's testimony there was no evidence of any culpable conduct on the part of Claimant which contributed to the accident, and the alleged unsecured hay did not affect Ms. Patrick's ability to see the road, or her ability to accelerate, decelerate, steer, or brake her vehicle. Claimant argues that Defendant's second affirmative defense, asserting his contributory culpable conduct, should be apportioned in relation to any negligence of Defendant-employee pursuant to CPLR Articles 14 and 14A, and is without merit and should be dismissed.
Claimant also alleges that Defendant's fifth affirmative defense should be dismissed because the uncontroverted facts indicate that Claimant utilized all required safety devices.
Defendant makes several arguments in opposition to Claimant's motion and has attached the affidavit of Dan Lent, who is in charge of maintenance at Seneca Lake State Park, and the State Police Accident Report form providing number coded explanations for the accident descriptions in the police report.
Defendant argues that Claimant has not established Ms. Patrick's negligence as a matter of law, because there is no competent proof that she was traveling at an unsafe speed or violated sections 1122 (a) and 1128 (a) of the Vehicle and Traffic Law. Defendant also argues that there is an issue of fact as to whether the blowing hay off of Claimant's vehicle was negligent.
Summary judgment is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film, Corp., 3 NY2d 395 [1957]). Movant has the burden on the motion to establish that judgment should be granted, as a matter of law, with proof in admissible form (Jacobsen v New York City Health & Hosps. Corp. 22 NY3d 824, 833 [2014]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Assoc. Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]). This is a heavy burden, since the evidence submitted must be viewed in the light most favorable to the non-moving party, giving that party the benefit of any favorable inference (Jacobsen, 22 NY3d at 833; Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]). Only once Movant's burden is met, does the burden shift to the opposing party to present evidentiary proof to establish the existence of a material fact which would require a trial (Id.; Zuckerman v City of New York, 49 NY2d 557 [1980]). The motion should not be granted where there are questions of fact, or where an issue is "arguable." (Sillman, 3 NY2d at 404, quoting Barrett v Jacobs, 255 NY 520, 522 [1931]).
CPLR 3211 (b) 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. The sole determination to be made on a motion to dismiss a defense is "whether there is a defense cognizable at law . . ." (Krasner v New York State Elec. & Gas Corp., 90 AD2d 921 [3d Dept 1982]). In deciding the motion, all allegations set forth in the answer and defense are accepted as true and Defendant is given the benefit of all reasonable inferences ( Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009; Pellegrino v Millard Fillmore Hosp., 140 AD2d 954 [4th Dept 1988]).
Although Defendant argues that Clamant did not establish that Ms. Patrick violated sections 1122 (a) and 1128 (a) of the Vehicle and Traffic Law, in her deposition testimony, Ms. Patrick admitted that she was charged with a traffic infraction for unsafely changing lanes, and she admitted to pleading guilty to a reduced charge after speaking with the District Attorney. An unexcused violation of the Vehicle and Traffic Law "constitutes negligence per se." (Feeley v St. Lawrence Univ. , 13 AD3d 782, 783 [3d Dept 2004]). However, in this case, Ms. Patrick alleges that she changed lanes because of the distracting hay flying from Claimant's truck. After she changed lanes her vehicle began fishtailing and she lost control, striking the guide rail, where she was thereafter propelled into the Claimant's lane of travel. Although Claimant denies that any hay was flying off of his truck, he admittedly did not see Ms. Patrick behind him which is consistent with Ms. Patrick's testimony that bales of hay covered the truck's back window. Mr. Lent, who also went to the scene of the accident, testified that he saw straw lying in the roadway. Whether this was from the impact of the accident or from flying off of Claimant's truck is not clear but could lend support to Defendant's version of events. Both drivers described going relatively slowly - below the speed limit. Claimant testified the roadway was not slippery, and Ms. Patrick described the road at the location of the accident as wet, but clear, although there was some wet slushy accumulation on the sides of the road. However, the police report reflects that the roadway was slippery with snow/ice. Whether Ms. Patrick's actions were negligent under these circumstances, involve questions of fact not law. Moreover, whether the hay flying from Claimant's truck contributed, in any way, to this accident is also a question of fact, and also precludes dismissal of Defendant's second affirmative defense (see Dziedzic v Thayer, 292 AD2d 845 [4th Dept 2000]).
Vehicle and Traffic Law section 1122 (a) provides:
The following rules shall govern the overtaking and passion of vehicles proceeding in the same direction, subject to those limitations, exceptions and special rules hereinafter stated:
(a) The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left thereof at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle.
Vehicle and Traffic Law section 1128 (a) provides:
Whenever any roadway has been divided into two or more clearly marked lanes for traffic, the following rules in addition to all others consistent therewith shall apply:
(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.
Claimant's Exhibit G, items 6 and 20, and Defendant's Exhibit 2.
Since the police report supports the testimony of Claimant that he was wearing his seat belt, Claimant has established that Defendant's fifth affirmative defense lacks merit. Defendant has not come forward with any evidence that Claimant was not wearing a seatbelt. The fifth affirmative defense should be dismissed.
Accordingly, based upon the foregoing the Court finds Claimant's motion for partial summary judgment should be DENIED, and his motion seeking to strike certain of Defendant's affirmative defenses is GRANTED in part to the extent that Defendant's first, fifth, and seventh affirmative defenses are DISMISSED and the motion is DENIED as to Defendant's second affirmative defense.
November 8, 2017
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affirmation of Michael P. Kenny, Esquire, in support with exhibits attached thereto. 3) Affirmation of Bonnie Gail Levy, Esquire, Assistant Attorney General, in opposition, with exhibits attached thereto.