Opinion
# 2014-045-001 Claim No. 115658 Motion No. M-82266
01-09-2014
TSIORVAS v. THE STATE OF NEW YORK
Claimant's attorney: The Gucciardo Law Firm By: Thomas P. Ram, Esq. Defendant's attorney: Conway, Farrell, Curtin & Kelly, P.C. By: Kevin J. Kelly, Esq.
Synopsis
Defendant's summary judgment motion, collaterol estoppel.
Case information
UID: 2014-045-001 Claimant(s): GUS TSIORVAS Claimant short TSIORVAS name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote The caption has been amended, sua sponte, to reflect the (defendant name) : State of New York as the only properly named defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 115658 Motion number(s): M-82266 Cross-motion number(s): Judge: GINA M. LOPEZ-SUMMA Claimant's The Gucciardo Law Firm attorney: By: Thomas P. Ram, Esq. Defendant's Conway, Farrell, Curtin & Kelly, P.C. attorney: By: Kevin J. Kelly, Esq. Third-party defendant's attorney: Signature date: January 9, 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: Defendant's Notice of Motion, Defendant's Affidavit in Support with annexed Exhibits A-M, Defendant's Memorandum of Law, Defendant's Supplemental Affidavit in Further Support with annexed Exhibit N, Claimant's Affirmation in Opposition with annexed Exhibits A-M, Defendant's Reply Affidavit in Further Support and Defendant's Supplemental Reply Affidavit in Further Support with annexed Exhibits N-O.
Defendant, the State of New York, has brought this motion pursuant to CPLR 3212 seeking an order dismissing the claim.
The underlying action occurred on August 13, 2007 at approximately 4:15 p.m. when the claimant, Gus Tsiorvas, was driving his vehicle, which was involved in a two-car accident on the Southern State Parkway, Heckscher Spur, Town of Islip, Suffolk County, State of New York. Just before the accident, claimant was traveling eastbound in the far right lane heading toward Exit 43. At his deposition, claimant testified that he was on his way to work when:
Throughout the motion papers, counsel has incorrectly referred to Gus Tsiorvas as the plaintiff. In the Court of Claims, an action is commenced on behalf of a claimant. Henceforth, Gus Tsiorvas will be properly referred to as claimant.
"all of a sudden, boom, it sounded like an explosion, the tire exploded, the whole wheel turned, the car went down and I started flipping and I felt it turning, started to turn. After that I only remember looking up at the sky."(p. 12, Gus Tsiorvas deposition, Defendants' Exhibit H).
Claimant alleged that the accident occurred when his vehicle came in contact with a deep and wide road opening in the far right eastbound lane between Exits 42 and 43 of the Southern State Parkway. Claimant testified at his deposition that he drove the Parkway to work several times a week and had never noticed a hole or a pothole before the accident. Claimant further testified that he did not recall how far he was from Exit 43 when the accident occurred, whether he hit the brakes, whether he was wearing a seatbelt, whether he hit another car, or whether he flipped over and was ejected from his vehicle. Claimant only remembered lying down facing the sky.
Jose Orellana was driving his vehicle in the center eastbound lane of the Southern State Parkway. Before the accident, Mr. Orellana observed claimant's vehicle in his rear-view mirror. At that time, claimant's vehicle was in the far right lane about a car length behind him. At his deposition, Mr. Orellana testified that:
"[the claimant] was coming fast. When he couldn't go through the right lane because there was a car in front of him, he tried to switch lanes and that's when he hit me." (p. 62, Orellana deposition, Defendants' Exhibit J)After the accident, claimant was able to contact his father, Peter Tsiorvas, who drove to the accident site. At that time, Mr. Tsiorvas saw nothing about the roadway or the vehicles that may have contributed to the accident. Three days later, claimant's father traveled to the Southern State Parkway at three in the morning. He parked his car on the right shoulder closer to Exit 42 than Exit 43. He got out of his car and began looking for anything that could have caused his son's accident. At the time, he was not aware that his son's vehicle had struck the Orellana vehicle. He found nothing. He then began to walk up and down the Parkway for thirty to forty-five minutes until he found a pothole near light pole number 1150 and figured out that's what must have happened to his son. Once he found this pothole, claimant's father stopped walking and did not continue down to Exit 43. Claimant's father went back to the Southern State Parkway the next day with his lawyer and took photographs of the pothole he had found the night before.
Claimant never saw a pothole or the condition depicted in the photographs taken by his father before the accident. In addition, claimant never went out to the Parkway to view the condition depicted in his father's photographs and did not know where exactly the pictures were taken. At his deposition, claimant testified that he hit something, but admitted that he could not say that the condition depicted in the photographs was what his car hit at the time of the accident.
Vincent Taormina, a New York State Trooper, testified at his deposition that he spoke to claimant at the accident site. According to Trooper Taormina, claimant repeatedly told him that he did not know how the accident occurred or what had happened or even what lane he was in. The Trooper also spoke with Mr. Orellana, who told him that claimant's vehicle hit his vehicle and then rolled down the road. Trooper Taormina inspected the area trying to ascertain how the accident occurred. He walked back west on the Southern State Parkway several hundred feet, but found no skid marks or any defects or potholes in the roadway. The Trooper found nothing in the roadway that he could attribute to causing the accident. In addition, the Trooper found no debris or markings to indicate where in the roadway the impact between claimant's vehicle and Mr. Orellana's vehicle occurred. Finally, Trooper Taormina testified that he saw nothing like the condition depicted in the photographs taken by claimant's father in the roadway after the accident. If he had, he would have reported it to the New York State Department of Transportation (DOT).
As the party seeking summary judgment, defendant 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. Center, 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. Center, 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes aprima 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]).
The State of New York has a duty to maintain its roadways in a reasonably safe condition and the breach of that duty can result in liability to the defendant if the ascribed negligence in maintaining the road is a proximate cause of the accident (Friedman v State of New York, 67 NY2d 271 [1986]). However,the State is not an insurer of the safety of its roadways, and the mere fact that an accident resulting in injury occurred does not render the State liable(Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]).
"[N]o liability will attach unless the State's alleged negligence in maintaining its roads in a reasonable condition is a proximate cause of the accident" (Steenbuck v State of New York, 111 AD3d 819 [2d Dept 2013], citing Sinski v State of New York, 2 AD3d 517 [2d Dept 2003]). Defendant can establish its prima facie entitlement to summary judgment by showing that the claimant cannot identify the cause of his accident (Califano v Maple Lanes, 91 AD3d 896 [2d Dept 2012]). Claimant's inability to identify the cause of his accident is fatal to his cause of action as a finding that the defendant's negligence, if any, proximately caused the accident would be based on speculation (Rajwan v 109-23 Owners Corp., 82 AD3d 1199 [2d Dept 2011].
Here, defendant has established its prima facie entitlement to judgment as a matter of law by submitting the deposition transcripts of Trooper Taormina, Jose Orellana, Gus Tsiorvas and Peter Tsiorvas, which establish that claimant does not know how the accident occurred and that the possibility of a pothole came about only after his father, Peter Tsiorvas, walked up and down the Southern State Parkway looking for anything that could have caused the accident. Claimant could not identify the pothole shown in the pictures taken by his father and did not see a pothole in the area before the accident. Trooper Taormina walked the Parkway in the area of the accident immediately after it occurred and found no pothole or any roadway defect that could have contributed to the accident. Finally, Mr. Orellana saw claimant coming fast in the far right lane and saw him change lanes to avoid the traffic in front of him and run into Mr. Orellana's vehicle. Where, as here, claimant cannot identify the cause of the accident and it is just as likely that some factor, other than any negligence of defendant, caused the accident, any determination as to causation would be based on speculation (Bernstein v City of New York, 69 NY2d 1020 [1987]; Kudrina v 82-04 Lefferts Tenants Corp., 110 AD3d 963 [2d Dept 2013]; Califano v Maple Lanes, 91 AD3d 896, 898 [2d Dept 2012]).
In opposition, claimant proffered the deposition transcripts of John Tyson, project manager for Island Pavement Cutting Corp. (Island Pavement), Luis Rodriguez, Engineer-in-Charge for the DOT, as well as the transcripts from the depositions of claimant, claimant's father and Jose Orellana. In addition, claimant submitted his own affidavit and an expert affidavit by Nicholas Bellizzi, P.E. who opined that the spall repair work done for the State by contractor, J.D. Posillico, Inc. (JDP) and its subcontractor, Island Pavement, was improperly performed, causing the creation of a pothole on the Southern State Parkway, which, in turn, caused the accident. No evidence was presented, however, connecting any pothole or any condition depicted in the photographs taken by claimant's father or the repair work performed by State contractors with the accident. Thus, it would be speculative to assume that any work done for the State on the Southern State Parkway was the proximate cause of the accident. Since claimant failed to raise a triable issue of fact, defendant's motion for summary judgment must be granted (Kloepfer v Aslanis, 106 AD3d 956 [2d Dept 2013]; Miles v County of Dutchess, 85 AD3d 878 [2d Dept 2011]; Aguilar v Anthony, 80 AD3d 544 [2d Dept 2011]).
In addition, defendant argues that it is entitled to rely on the doctrines of res judicata and collateral estoppel to support its summary judgment motion. Under res judicata, a final judgment bars future actions on the same cause of action between the same parties (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343 [1999]). Once an action is brought to a final resolution, the doctrine of res judicata precludes other actions that are based on the same transactions (O'Brien v City of Syracuse, 54 NY2d 353 [1981]).
Collateral estoppel is a narrower concept of issue preclusion. It "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity" (Ryan v New York Tel. Co., 62 NY2d 494,500 [1984]). The doctrine of collateral estoppel applies when the issue in the subsequent action is identical to the issue raised and decided in the first action and the party to be precluded had a fair and full opportunity to litigate the issue in the first action (Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]). As the proponent of collateral estoppel, defendant has the burden of proving that the issues decided in an earlier action were identical to the issues herein and were necessarily decided in the first action, while claimant has the burden of establishing that he did not have a full and fair opportunity of litigating the issues in the first action (Ryan v New York Tel. Co., 62 NY2d 494, 500-501 [1984]).
In support, defendant relies on the October 24, 2012 decision by the Hon. Randy Sue Marber, J.S.C. in an action brought in State Supreme Court, Nassau County, Index No. 014925/10, by Gus Tsiorvas for his injuries arising out of the August 13, 2007 accident. The action was brought against JDP and Island Pavement, the contractor and its subcontractor who allegedly performed repair work for the State which caused a pothole. In granting summary judgment to the defendants in the Supreme Court action, Judge Marber noted:
"Having carefully reviewed the considerable submissions of the parties, the Court finds that the Defendants have demonstrated their entitlement to summary judgment by establishing that the Plaintiff [Claimant herein] was unable to identify the cause of his vehicular accident (citation omitted). In opposing Defendants' application, while the Plaintiff's counsel contends Mr. Tsiorvas sufficiently described the cause of his accident, such assertion is contradicted by the record . . . . (footnote omitted) Additionally, when specifically questioned if he knew 'what caused the big bang and explosion', the Plaintiff responded 'no' and stated that it was his father who told him the accident was caused by a pothole (footnote omitted). Further, a review of the Plaintiff's expert affidavit reveals that Mr. Bellizzi does not indicate when(pp. 6-7, Defendant's Exhibit N).
he inspected the accident site and accordingly his opinions are not probative with respect to the condition of the road at the time of the Plaintiff's accident (citation omitted)."
As in the Supreme Court action, the issue herein is the inability of the claimant to identify the proximate cause of his accident. The Supreme Court action decides the issue against claimant herein, precluding him from relitigating the same issue in the present action pursuant to the doctrine of collateral estoppel. In opposition, claimant does not argue that he did not have a full and fair opportunity to litigate this issue in the Supreme Court action. Rather, he argues only that the Supreme Court decision is not a final resolution of the issue as Judge Marber's decision is on appeal. The mere pendency of an appeal, however, does not prevent the challenged judgment from being used as the basis of collaterally estopping a party to that judgment in a subsequent action (Matter of Amica Mut. Ins. Co. [Jones], 85 AD2d 727 [2d Dept 1981]). Moreover, claimant's counsel has now withdrawn the appeal from the Supreme Court judgment.
Finally, the Court notes that the defendant did not raise res judicata or collateral estoppel as affirmative defenses in its answer as required by CPLR 3211 (e), nor did it couple its present motion with a request for permission to amend its answer to include these defenses. This is somewhat explicable by the fact that Judge Marber's decision in the State Supreme Court action was not rendered until after defendant filed this motion.
Pursuant to CPLR 3025 (b), a pleading may be amended if the amendment is meritorious and does not cause surprise or prejudice to the other party (Yemini v Goldberg, 46 AD3d 806 [2d Dept 2007]; see also 22 NYCRR § 206.7). Here, the doctrines of res judicata and collateral estoppel are clearly meritorious and claimant has failed to argue surprise or prejudice in discussing their applicability. Further, an actual amendment of defendant's answer is not necessarily required. Pursuant to CPLR 3025 (c), the Court can recite in the decision that the answer is deemed amended to conform to the evidence (see Edens v State of New York, UID No. 2010-041-023 [Ct Cl, Milano, J., May 6, 2010] ; Siegel NY Prac 2d § 404, at 684).
This and other Court of Claims decisions may be found on the Court's web site at www.nyscourtofclaims.state.ny.us.
Accordingly, defendant's answer is deemed amended to include the affirmative defenses of res judicata and collateral estoppel. Thus, the Supreme Court ruling against claimant must be given conclusive effect in the Court of Claims (Rodenheiser v State of New York, 47 AD3d 788 [2d Dept 2008]; Mathieu v Scalea, 285 AD2d 631 [2d Dept 2001]) requiring the claim to be dismissed.
Therefore, for the foregoing reasons, defendant's motion for summary judgment is granted and the claim is hereby dismissed.
January 9, 2014
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims