Opinion
# 2018-038-551 Claim No. 127007 Motion No. M-91365 Cross-Motion No. CM-91629
06-08-2018
GEORGE K. VARGHESE v. THE STATE OF NEW YORK
MARTIN, HARDING AND MAZZOTTI, LLP By: Philip S. Mazzotti, Esq. BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Joan Matalavage, Assistant Attorney General
Synopsis
Defendant's motion for summary judgment denied; claimant's cross motion for spoliation sanction denied. Claimant's car collided with defendant's snow plow, and submissions on the summary judgment motion did not demonstrate lack of factual issues regarding whether the driver was actually working on a highway such that Vehicle and Traffic Law 1103 (b) applied, and if it does, whether the driver operated his vehicle with reckless disregard for the safety of claimant could not be resolved on this motion for summary judgment. Claimant's cross motion for sanctions did not demonstrate that claimant was bereft of evidence or could not otherwise support his claim that the driver was not actually engaged in work on the highway.
Case information
| UID: | 2018-038-551 |
| Claimant(s): | GEORGE K. VARGHESE |
| Claimant short name: | VARGHESE |
| Footnote (claimant name) : | |
| Defendant(s): | |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127007 |
| Motion number(s): | M-91365 |
| Cross-motion number(s): | CM-91629 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | MARTIN, HARDING AND MAZZOTTI, LLP By: Philip S. Mazzotti, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD, Attorney General of the State of New York By: Joan Matalavage, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 8, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
The caption has been amended sua sponte to reflect the State of New York as the only proper defendant.
Decision
Claimant seeks compensation for personal injuries he sustained on March 21, 2014 when his car collided with a truck that was operated by New York State Department of Transportation (NYSDOT) employee James Russell in Saratoga Springs, New York. Defendant moves for summary judgment dismissing the claim. Claimant opposes the motion and cross-moves for an order seeking sanctions for the spoliation of a logbook maintained by Russell, which is opposed by defendant.
Because Russell was out on the road at the time of the accident in a plow truck and was spot-treating slick spots on a highway, defendant invokes the protection of Vehicle and Traffic Law (VTL) § 1103 (b), which precludes liability for ordinary negligence and from violations of the safety rules and regulations set forth in the VTL if a person causes an injury while he or she is actually engaged in work on a highway (see Matsch v Chemung County Dept. of Pub. Works, 128 AD3d 1259, 1260 [3d Dept 2015], lv denied 26 NY3d 997 [2015]). If the alleged tortfeasor is so engaged, liability will lie only if that person's actions were taken with reckless disregard for the safety of others (see id.), which "requires evidence that 'the actor has intentionally done an act of unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow' and has done so with conscious indifference to the outcome" (Saarinen v Kerr, 84 NY2d 494, 501 [1994], quoting Prosser and Keeton, Tort § 34, at 213 [5th ed]). The standard of "reckless disregard" involves conduct that is far more egregious than momentary lapse of attention or judgment (see Saarinen v Kerr, 84 NY2d at 502).
Defendant, as the party moving for summary judgment, bears the initial burden of establishing its right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). It is well established that:
"[o]n a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) and then only if, upon the moving party's meeting of this burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' (id.)"
(Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). Thus, when a movant fails in the first instance to demonstrate its entitlement to summary judgment as a matter of law, its motion must be denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993], quoting Alvarez v Prospect Hosp., at 324). It is well-established that a court's task on a summary judgment motion is issue identification, not issue resolution (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 397, 404 [1957]). The issues presented on the instant motion for summary judgment are (1), whether Russell was actually engaged in work on a highway at the time of the accident, and if so (2), whether Russell's conduct rose to the level of reckless disregard for the safety of others.
In support of its motion for summary judgment, defendant submits the examination before trial (EBT) testimony of claimant and Russell, the affidavit of Frank Lynch, its accident reconstruction expert, and a copy of the claim, which is appended by a copy of the Police Accident Report (MV-104A) regarding the accident (see Matalavage Affidavit, Exhibit A), all of which establish the following. The collision between claimant and Russell occurred at approximately 9:21 a.m. on March 21, 2014 on Union Avenue (also known as State Route 9P) directly in front of the Saratoga Race Course in the City of Saratoga Springs, New York. Union Avenue, in the vicinity of the accident, is a two-way highway running east to west with two lanes in each direction that are divided by a grass median that has paved crossovers that permit vehicles to traverse the median. The posted speed limit is 30 miles per hour (MPH). The Police Accident Report states that at the time of the accident, the weather was cloudy and the roads were dry. Claimant was driving a 4-door 2013 Mazda 3, and Russell was driving a NYSDOT dump truck equipped with front and wing plows and a salt spreader (hereinafter "plow truck").
Russell testified at his EBT that on the day of the accident, he was assigned a route - or a "beat" - that included Union Avenue. Prior to the accident, Russell had completed two trips on his beat and when he returned to the shop after his second trip at approximately 8:15 a.m., he advised McMahon, his supervisor, that there were a couple of spots on Union Avenue, which were in lanes in both directions "that needed some desperate attention," and McMahon asked him to make one more trip to address those spots (see id., Exhibit E [Russell EBT, p.58]). Russell testified that he left the shop, proceeded southbound on the Northway, exited at exit 14 and proceeded westbound in the right lane of Union Avenue. Russell testified that he did not spread salt on Union Avenue until he was one-half to three-quarters of a mile beyond the exit, and that he then treated approximately 20 feet of road with a five second burst of salt. Russell testified that he looked in his driver's side mirror before he applied the salt and saw claimant's vehicle approximately 1,500 feet behind him in the left lane. Russell testified that he checked his left mirror again after the salt burst, and saw claimant's vehicle in the left lane between 1,000 and 1,200 feet behind him. After treating that one spot, Russell did not intend to apply more salt to the westbound lanes. To apply needed salt on the Union Avenue eastbound lanes, Russell intended to make a U-turn at the crossover. He testified that he looked at his left mirror for a third time approximately ten seconds after he had checked it the second time, that he was approximately 500 feet from the crossover, and that claimant's vehicle was then approximately 1,000 feet behind him. Russell testified that he was traveling at approximately 25 MPH and he turned on his directional signal and moved the plow truck from the right westbound lane completely into the left lane. Notwithstanding his testimony regarding his rate of speed and his proximity to the crossover, Russell testified he traveled in the left lane for approximately one to two minutes before he reached the crossover (see id., at 77-78). He testified that prior to attempting the U-turn, he checked his right mirror, moved the plow truck to the right "a little bit" (id., p.62), slowed down, and then started to turn left into the crossover. He testified that when he was well into the turn and the plow truck was 3/4 in the crossover, claimant's vehicle struck the plow truck in the left rear tire.
Russell testified that prior to making the turn into the crossover, there was no need to check his left mirror because there were no vehicles to his left, just the median. Russell acknowledged that the crossover was not the established turnaround location for the Union Avenue route, but that he used the crossover because he was concerned about the icy condition in the eastbound lanes and the traffic heading east out of the city. Russell testified that all of the plow truck's lights, including the flashing beacon on top of the truck, were illuminated.
Russell testified that he spoke briefly to the police officer at the scene of the accident (see Matalavage Affidavit, Exhibit E [Russell EBT, at 86]). The MV-104A that the officer completed on March 22, 2014 describes the accident as follows:
"[Claimant's vehicle] traveling west bound on Union Avenue a four lane divided NYS owned roadway with two lanes dedicated for travel east/west bound. [Russell's vehicle] is a NYS owned plow truck delivering salt in needed areas traveling in the right hand driving lane west bound. [Russell's vehicle] then attempted a U-turn from the outside right lane in an area near Saratoga Race Course. [Claimant's vehicle] then struck [Russell's vehicle] in the left hand west bound travel lane on Union Avenue."
(id., Exhibit A [Claim number 127007, Attached MV-104A]). The report does not indicate which witness informed the reporting officer that the plow truck had turned from the right lane.
Defendant's submission in support of its motion also includes claimant's EBT testimony, which presents evidence that is not wholly consistent with Russell's account of the incident. Claimant testified at his EBT that he had exited the northbound Northway at exit 14 and proceeded in a westerly direction on Union Avenue. He testified that he reduced his speed to approximately 30 MPH as he entered the city limits, that he moved into the left lane, and at some point, he observed Russell's plow truck in the right lane ahead of him. Claimant testified that just prior to the accident, his vehicle was in the left lane and Russell's plow truck was in the right lane and was only two to three car lengths in front of him when "it abruptly made a left turn across both lanes [of traffic]" (Matalavage Affidavit, Exhibit D [Varghese EBT, p.51]), without having put on its directional signal. Claimant testified that none of the plow truck's lights were illuminated. Thus, defendant's own submission in support of its motion presents the following pertinent inconsistencies - whether the plow truck ever traveled in the left lane, whether it turned from the right or left lane, whether any of the lights on the plow truck were illuminated, whether Russell used his directional prior to making the turn, and the distance between the two vehicle when the plow truck made the left turn. These factual issues implicate the degree of care exercised by Russell, whose credibility is also implicated by his internally inconsistent EBT testimony that he was 500 feet from the crossover when he turned on his directional signal, but that it then took him one to two minutes to get to the crossover (see id., Exhibit E, [Russell EBT at 76-77]). Reviewing defendant's submission in the favorable light to which claimant is entitled on this motion for summary judgment, and mindful that the Court's task at this stage of the litigation is issue identification and not issue resolution, defendant's motion for summary judgment will be denied, for the following reasons.
Assuming without deciding that defendant has met its prima facie burden of demonstrating as a matter of law that Russell was actually engaged in work on a highway at the time of the accident within the meaning of VTL § 1103 (b) and consequently that the "reckless disregard" standard applies, defendant has not established as a matter of law that Russell's conduct at the time of the accident did not amount to a reckless disregard for the safety of others.
Even if defendant has made a prima facie showing that Russell was actually engaged in work on a highway within the meaning of VTL § 1103 (b) at the time of the accident, claimant's submission in opposition to the motion raises pertinent triable issues of fact. Specifically, claimant's affidavit states that during the moments preceding the accident while both vehicles were traveling westbound on Union Avenue prior to the collision, claimant did not observe any snow, ice, or wet spots on the road, and that he did not see any salt, sand or ice melt on any wet spots, nor did he see the plow truck spreading any such product on the road. This, along with the Supervisor's Incident Analysis Report (SIAR) that was completed by LaPointe as discussed in greater detail below, that states that the accident occurred as Russell was traveling to address a slick area in the eastbound lanes of Union Avenue, claimant has raised an issue of fact whether he was merely traveling to his assigned work location and not actually engaged in work (see Hofmann v Town of Ashford, 60 AD3d 1498, 1499 [4th Dept 2009]), as opposed to having been actually engaged in highway work when he was headed westbound on Union Avenue (see O'Keefe v The State of New York, UID No. 2007-010-057 [Ct Cl, Ruderman, J., May 12, 2008]; DuMoulin v The State of New York, UID No. 2004-015-415 [Ct Cl, Collins, J., Aug. 9, 2004]). --------
The EBT testimony of Russell, taken alone, would establish that his conduct was, at most, a momentary lapse of attention or judgment, which could constitute a breach of the duty of care generally owed to others, i.e. negligence. He testified that he looked in his left side view mirror three times and observed claimant's vehicle no closer than 1,000 feet to the plow truck, and his testimony about his observations of claimant's vehicle would indicate that claimant was not traveling appreciably faster than the plow truck or gaining ground on it. Russell testified that he was traveling in the left lane at less than the posted speed limit and that he slowed as he approached the crossover, that he turned on his left directional signal and looked into his right side mirror prior to moving slightly to the right before beginning his U-turn and that did not see claimant's vehicle, and that he was unaware that claimant was so close to him until he heard the screech of claimant's tires immediately preceding the collision. This testimony - along with the fact that the accident occurred - suggests that Russell was either careless, mistaken, or that he misjudged or made erroneous decisions about certain dynamic events, but it demonstrates that he did not act with a reckless disregard of claimant's safety.
However, defendant's submission also includes claimant's deposition testimony that Russell was never in the left lane of Union Avenue, that no lights were illuminated on the plow truck, that the snow plow's directional signal never came on, and that Russell abruptly turned the plow truck into the crossover from the right lane and across the left lane when claimant's vehicle was in the left lane only several car lengths behind the plow truck. In the view of the Court, this EBT testimony sufficiently raises triable issues of fact about whether Russell acted with reckless disregard, that is, whether Russell's attempted U-turn from the right lane was an act of unreasonable character taken without regard of the risk to claimant and with indifference to the outcome.
Even if claimant's EBT testimony does not prevent defendant from making a prima facie case that Russell did not act with reckless disregard, claimant's full submission in opposition to defendant's motion meets the shifted burden of raising triable issues of fact sufficient to defeat defendant's prima facie showing. His submission in opposition to the motion for summary judgment includes the EBT testimony of Matthew LaPointe, one of Russell's supervisors, who investigated the accident and completed two documents - a Supervisor's Incident Analysis Report (SIAR) and State Vehicle Accident Report (SVAR) (seeMazzotti Affidavit, Exhibits H [SIAR], I [SVAR]) - after viewing the scene of the accident and speaking with Russell. Based upon what Russell told him, and after Russell reviewed the reports prior to their completion, LaPointe wrote that:
"[Russell] was traveling westbound on Union Ave. in to [sic] the City to address an area of accumulated water, ice and slush eastbound in front of Saratoga Springs Thourbred [sic] Race Track. [Russell] was in the right lane of the two lane divided road and slowed to use a paved 'crossover' to reverse directions. He stated that he used his mirrors three times to check if there was any traffic approaching from behind and said that he did see a vehicle off in the distance but wasn't concerned and proceeded to start his left turn into the 'crossover.' As he started in he heard a long screech of tires and was impacted by a car in the drivers rear tire of the dump truck."
(id., Exhibit H [emphasis supplied]; see also Exhibit I; Exhibit E [LaPointe EBT, p.23-24, 34, 44-45). The Police Accident Report of the incident states that Russell attempted the U-turn from the right lane (see id., [Exhibit G]; see also Matalavage Affidavit, Exhibit D, p. 51; Exhibit A, subexhibit A). In his affidavit, claimant's accident reconstruction expert, Bradford R.T. Silver, recites the sources of his data and states that his analysis led him to conclude that Russell made the U-turn from the right lane, and that the physical parameters of the crossover and the plow truck were such that Russell "had to know that he could not safely stop his thirty-two foot plow truck in a sixteen foot wide median" and that it was extremely dangerous for him to have done so (see Silver Affidavit, ¶¶ 45-46, 48). Russell had testified that he was in a hurry to treat the eastbound traffic lanes and that he chose to make a U-turn at the crossover - and undesignated turnaround - even though there was a designated turnaround for plow trucks only 700 feet further down Union Avenue (seeMatalavage Affidavit, Exhibit E, pp. 87-88; Mazzotti Affidavit, Exhibit E, pp. 9-10). In the SIAR, LaPointe stated that Russell "should have used the establish[ed] Turn Around location and continued to use his driver's mirror as he made his left turn" (Mazzotti Affidavit, Exhibit H, p.2; see also Matalavage Affidavit, Exhibit E [Russell EBT, p.39-41]). All of this evidence, considered in the light most favorable to claimant, allows one to conclude that Russell was negligent, perhaps grossly so, but it also draws to mind a scenario in which Russell abruptly, impulsively and without warning, and with a reckless disregard for the safety of others on the highway or the consequences of his actions, made a sudden turn from the right lane of Union Avenue across the left lane and directly into the path of claimant's vehicle, which was only a few vehicles' length away. Accordingly, defendant's motion for summary judgment will be denied.
Claimant cross-moves for an order imposing sanctions for the spoliation of Russell's plow truck logbook for the date of the accident, which was requested by claimant but not produced by defendant (see Mazzotti Affidavit, ¶¶ 71-73, 76; Exhibits A-C). Claimant asserts that the logbook, which keeps track of the number of miles driven and the amount of salt applied, "would detail whether [Russell] was salting at the time or just prior to it" and that "[t]his is one of the issues in great dispute in this matter and goes to the heart of the issue whether the reckless disregard standard is applied" (id., ¶ 75). Claimant requests a sanction in the nature of a negative inference be drawn at trial regarding whether Russell was actually performing work on the highway at the time of the accident.
Defendant opposes the motion and submits the affidavit of Kenneth Relation, Assistant Resident Engineer for NYSDOT's Saratoga County Residency, who avers that despite making two exhaustive searches in 2016 and 2017 for Russell's March 21, 2014 Snow and Ice Operator's Report (i.e. the logbook), he was unable to locate it (see Matalavage Reply Affidavit, Exhibit A [Relation Affidavit, ¶¶ 3-4]). Relation also avers that the New York State Maintenance Asset Management Information System (MAMIS) printouts "contain the same information as to what roads the crew was on, the equipment being utilized and the amount of salt distributed" and that the MAMIS printouts were disclosed to claimant during discovery (id., ¶ 4). Defendant argues that in addition to the MAMIS printouts, it has produced the complete accident reports for the accident, as well as Russell, McMahon and LaPointe for depositions. Defendant asserts that it is undisputed that "the job that Mr. Russell had been assigned to perform at the time of the accident was to check and spot treat Union Avenue for ice, snow and slush," (id., Matalavage Reply Affidavit, ¶ 6). Defendant argues that "it doesn't matter if Mr. Russell was putting salt down at the exact moment of the impact," and further opposes the motion on the ground that claimant has failed to show any prejudice as he has been provided with all of the other accident reports, which "clearly demonstrate what happened in this accident" (id. ¶ 7). Defendant contends that sanctions are not warranted because claimant is not entirely bereft of evidence (see id.).
Claimant responds that MAMIS printouts do not contain the same information as what is contained in the Snow and Ice Equipment Operator's Report, with reference to McMahon's testimony that MAMIS is just recordkeeping used to support payroll (see Mazzotti Affidavit, Exhibit F [McMahon EBT, p.44]). Claimant further contends that information that could be found in Russell's logbook is directly relevant to whether he was "actually working" and thus whether the "reckless disregard" standard applies, and that drawing a negative inference due to the absence of the logbook is therefore warranted.
The imposition of sanctions for the spoliation of evidence involves the exercise of broad judicial discretion (see Ortega v City of New York, 9 NY3d 69, 76 [2007]), and the nature of a sanction should relate to the degree to which the moving party has been prejudiced by the loss of the evidence (see Denoyelles v Gallagher, 40 AD3d at 1027; Baglio v St. John's Queens Hosp., 303 AD2d at 342; Chiu Ping Chung v Caravan Coach Co., 285 AD2d at 621-622). Severe sanctions such as striking a pleading or issuing an order of preclusion is reserved for the most egregious of situations, including such as where a claim or defense is fatally compromised because the unavailability of evidence leaves a party unable to prove its claim or defense (see Hotel 57 LLC v Harvard Maintenance, Inc., 29 AD3d 462 [1st Dept 2006]; Baglio v St. John's Queens Hosp., 303 AD2d 341, 342-343 [2d Dept 2003]; cf. Mylonas v Town of Brookhaven, 305 AD2d 561 [2d Dept 2003]; Chiu Ping Chung v Caravan Coach Co., 285 AD2d 621, 621-622 [2d Dept 2001]). "However, a less severe sanction or no sanction is appropriate where the missing evidence does not deprive the moving party of the ability to establish his or her case or defense" (Denoyelles v Gallagher, 40 AD3d 1027, 1027 [2d Dept 2007]).
It is not disputed that defendant has spoilated Russell's Snow and Ice Operator's Report from March 21, 2014, but there has been no showing or argument that claimant's claim has been fatally compromised by the missing evidence, and thus, a severe sanction is not warranted. Nor has claimant persuasively demonstrated that the loss of the logbook has prejudiced his ability to prove his claim. First, claimant has not demonstrated that the missing document may contain any evidence that will refute Russell's claim that he applied salt in the westbound lanes. Although claimant argues that the MAMIS printout contains different information from that of the Snow and Ice Operator's Report, McMahon testified that the MAMIS does contain information concerning the amount of salt used (see Mazzotti Affidavit, Exhibit F [McMahon EBT, p.44]), and Relation's affidavit avers that the information that was on the Report is contained within MAMIS, and claimant has not persuasively asserted otherwise, and thus, claimant has failed to demonstrate that the missing Report will demonstrate in detail that Russell was not spot treating the westbound lanes of Union Avenue before the collision. The controverted factual issue of whether Russell was engaged in spot treatment of the westbound lanes prior to the collision or was merely on the highway while traveling to his assignment of salting the eastbound lanes will be addressed by other evidence at trial, such as the testimony of claimant, Russell, LaPointe, and McMahon, as well as documentary evidence. Thus, because claimant has not shown that the Report contains the detailed information he would like to find therein, and because he has failed to demonstrate that he will suffer prejudice due to the spoliation of the Report, a sanction is unwarranted.
Accordingly, it is
ORDERED, that defendant's motion number M-91365 is DENIED; and it is further
ORDERED, that claimant's cross motion number CM-91629 is DENIED.
June 8, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim No. 127007, filed November 9, 2015, with exhibits A and B; (2) Verified Answer, filed December 3, 2015 (3) Notice of Motion for Summary Judgment (M-91365), dated November 13, 2017; (4) Affidavit of Joan Matalavage, AAG, in Support of Summary Judgment (M-91365), sworn to November 13, 2017, with Exhibits A-E, and Exhibit F (Affidavit with exhibits of Frank Lynch, sworn to November 3, 2017, and Exhibit G (Defendant's Memo of Law, dated November 13, 2017; (5) Notice of Cross Motion for Spoliation (CM-91629), dated January 5, 2018; (6) Affidavit of Philip S. Mazzotti, Esq., in Opposition to Motion for Summary Judgment and in Support of Cross Motion for Spoliation, sworn to January 5, 2018, with Exhibits A-K; (7) Affidavit of George K. Varghese, sworn to January 2, 2017 [sic]; (8) Expert Affidavit of Bradford R.T. Silver, sworn to January 2, 2018, with Exhibits A-C; (9) Claimant's Memorandum of Law in Opposition to Motion for Summary Judgment and in Support of Cross Motion for Spoliation, dated January 5, 2018; (10) Affidavit of Joan Matalavage, AAG, in Opposition and in Reply, sworn to February 8, 2018, with Exhibits A-B; (11) Affidavit of Philip S. Mazzotti, Esq., in Reply to Defendant's Opposition Papers, sworn to February 16, 2018.