Opinion
No. 2023-50816 Claim No. 138107
05-12-2023
Destinee Marie Alban, STEVE G. ALBAN and JUSTIN MICHAEL RIVERA, Claimants, v. The State of New York,[1] Defendant.
Claimant's attorney: WILLIAM SCHWITZER & ASSOCIATES, P.C. By: Michael Krigsfeld, Esq. Barry Semel-Weinstein, Esq. Defendant's attorney: HON. LETITIA JAMES Attorney General for the State of New York By: Dian Kerr McCullough, Assistant Attorney General
Unpublished Opinion
Claimant's attorney: WILLIAM SCHWITZER & ASSOCIATES, P.C.
By: Michael Krigsfeld, Esq.
Barry Semel-Weinstein, Esq.
Defendant's attorney: HON. LETITIA JAMES
Attorney General for the State of New York
By: Dian Kerr McCullough, Assistant Attorney General
Walter Rivera, J.
The following papers numbered 1-3 were read and considered by the Court on claimant's motion for summary judgment on the issue of liability:
Notice of Motion, Statement of Material Facts, Attorney's Supporting Affirmation and Exhibits 1
Attorney's Affirmation in Opposition and Exhibits 2
Attorney's Reply Affirmation 3
Filed Papers: Claim, Verified Answer
The claim alleges that at approximately 3:30 p.m. on June 26, 2022, Destinee Marie Alban (D. Alban) was operating a motor vehicle on Rockland Lake Road, within Rockland Lake State Park, in the County of Rockland (Claim, ¶ 3). Steve G. Alban (S. Alban) and Justin Michael Rivera (Rivera) were passengers in the vehicle (id.). The claim further alleges that a State-owned motor vehicle was negligently and recklessly operated by State employee, Danill J. Azadian (Azadian), who "sideswiped/struck" the vehicle operated by D. Alban and that D. Alban was free from any comparative negligence (id. at 3-4).
A copy of the Police Accident (MV-104A) is attached to the Claim as Exhibit A.
The State's Verified Answer concedes that at the time of the accident, Azadian was operating a State-owned vehicle during the course of his employment with the State (Verified Answer, ¶ 3). The State's Answer raises as the first affirmative defense that the accident was caused in whole or in part by the culpable conduct of claimants or others for whom the State has no legal responsibility (id. at 10). The State's second affirmative defense asserts that claimants' alleged damages were attributable in whole or in part to the comparative negligence or culpable conduct of claimants (id. at 11).
Claimants move for summary judgment on the issue of liability and to strike the State's first and second affirmative defenses raised in the State's Verified Answer alleging culpable conduct and comparative negligence. In support of the motion, claimants submit a Statement of Material Facts that the accident occurred when D. Alban was operating the motor vehicle at or near Rockland Lake State Park Lot # 1 Entrance in the Town of Clarkstown in Rockland County and that "[w]hile Claimants were stopped in stop and go heavy traffic in their lane of travel eastbound at the aforementioned location, [the State's] motor vehicle also traveling eastbound crossed over the double yellow line and suddenly and without warning struck the left-hand side of the Claimants' motor vehicle" (Statement of Material Facts, ¶¶ 1, 3, 8). Claimants also submit their affidavits in support of their motion (Exs. C, D, E). The affidavit of D. Alban states that she was stopped in her traffic lane during stop and go traffic when the State vehicle crossed over the double yellow line, suddenly and without warning, and struck the left side of the vehicle that she was driving (Ex. C, ¶¶ 2-3). The affidavit further states that D. Alban "in no way" contributed to the happening of the accident (id. at 4). The affidavit of S. Alban states that he was a passenger in the vehicle at the time of the accident (Ex. D, ¶¶ 2-3). S. Alban's description of the accident and his assertion that he did not contribute to the happening of the accident mirrors D. Alban's affidavit (Exs. C, D). Rivera's affidavit mirrors the affidavit of S. Alban (Ex. E). Additionally, claimants submit an uncertified copy of the police accident report prepared by Park Police Officer Andrea Francisco which states that the officer observed the accident occur and that the State vehicle was attempting to pass claimants' vehicle in a no passing zone and side-swiped claimants' vehicle (Ex. A attached to Ex. A [Claim]).
Claimants argue that the State's liability is "incontestable" pursuant to the State's violation of Vehicle and Traffic Law § 1128 (a), (d) and § 1126 (a) (Attorney's Supporting Affirmation, ¶ 12).
Vehicle and Traffic Law § 1128 Driving on roadways laned for traffic (a) provides: "[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" (emphasis added) and subdivision (d) provides: "[w]hen official markings are in place indicating those portions of any roadway where crossing such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive across such markings" (emphasis added). Vehicle and Traffic Law § 1126 No-passing zones (a) provides: "[w]hen official markings are in place indicating those portions of any highway where overtaking and passing or driving to the left of such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive on the left side of such markings" (emphasis added).
Claimants argue that a violation of the Vehicle and Traffic Law constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making, and that in the case at bar there was no emergency situation (see Foster v Sanchez, 17 A.D.3d 312, 313 [2d Dept 2005]). Accordingly, claimants maintain that the State's violation of the aforenoted provisions of the Vehicle and Traffic law constitutes negligence as a matter of law and that the State was the sole proximate cause of the accident. Claimants further contend that they have met their burden on the motion and that the burden has thus shifted to the State to present a non-negligent explanation for the accident. Additionally, claimants argue that while they have demonstrated their freedom from comparative fault, is not their burden to prove their absence of comparative fault (see Rodriguez v City of New York, 31 N.Y.3d 312, 325 [2018]; Derix v Port Auth. of NY & N.J., 162 A.D.3d 522 [1st Dept 2018]).
The State opposes the motion and argues that there are material issues of fact which preclude granting claimants' motion and that claimants have not demonstrated as a matter of a law that the State's affirmative defenses lack merit. Specifically, the State argues that there are issues of fact as to how the accident occurred and, contrary to claimants' position, the State vehicle did not cross over the double yellow line and did not violate Vehicle and Traffic Law § 1128 (a), (d) and§ 1126 (a). Thus, the State maintains that claimants have not established that the State was liable as a matter of law.
In support of its opposition, the State submits the affidavit of Christian Nielsen, an employee of the New York State Department of Parks, Recreation and Historic Preservation for 39 years and the Park Manager of Rockland Lake State Park since 2007 (Ex. 1). Nielsen's duties include supervising and ensuring that the park is maintained and operating to standards. Nielsen was working on the date of the accident in issue and explains in his affidavit that "typically" Rockland Lake Road, which surrounds Rockland Lake State Park, is comprised of one eastbound lane of traffic and one westbound lane of traffic, separated by a double yellow line (id. at ¶ 5). However, during summer weekends, when the pool reaches maximum capacity, "it is the Rockland State Park's practice and procedure to control the flow of traffic by creating an extra [eastbound] lane of traffic on Rockland Lake Road" (id. at 6). Nielsen explained that the extra lane is created to ensure that the traffic flows more efficiently and to avoid congestion on Route 9W, that runs adjacent to Rockland Lake State Park (id. at 7). Thus, there is one lane of traffic traveling westbound and two lanes of traffic traveling eastbound. One eastbound lane of traffic proceeds close to the double yellow line, which traditionally divided the eastbound and westbound lanes of traffic, and another eastbound lane of traffic proceeds close to the shoulder (id. at 8). According to Nielsen, on the date in issue there were approximately 8,133 patrons at Rockland Lake State Park and the procedure of having two lanes of eastbound traffic was in operation (id. at 9-10).
The State also submits the affidavit of Andrea Francisco, the Park Police Officer who prepared the accident report (Ex. 2). Francisco, who has been a Park Police Officer for four years, affirmed that on the date in issue, as was customary on the weekends, there were two lanes of eastbound traffic due to over-crowding in Rockland Lake State Park (id. at ¶¶ 5-6). At the time of claimants' accident, Francisco was responding to a different accident (id. at 4, 6). Francisco was proceeding in the eastbound lane closer to the double yellow line and was one or two cars behind the State vehicle driven by Azadian, who was in the same eastbound lane (id. at 6). Traffic was heavy and moving at a "very slow pace" in the eastbound lane close to the double yellow line (id. at 6-7). The eastbound lane close to the shoulder "was not moving at all" because of the accident to which Francisco was responding (id. at 7). Francisco observed the State vehicle driven by Azadian come into contact with claimants' vehicle as Azadian passed claimants' vehicle (id. at 8). As Francisco approached claimants' vehicle, she observed "very little damage... minor scrapes on the driver's side" (id. at 9). Francisco inquired of the occupants and they indicated that they were not injured and did not require medical assistance (id.). The State also submits two photographs of the damage to claimants' vehicle (Ex. 4).
Additionally, the State submits the affidavit of Azadian, who reviewed the accident report which claimants submit and affirmed that he also completed an MV-104 Report of Motor Vehicle Accident on the date of the accident (Ex. 3, ¶ 3). Azadian's affidavit mirrored Nielsen's affidavit regarding Rockland Lake State Park's practice and procedure of creating an extra eastbound lane of traffic to control the flow of traffic during summer weekends when the pool reaches maximum capacity, which procedure was in effect at the time of the accident (id. at 6-10, 24). Azadian further affirmed that, as part of the traffic procedure, on the date of the accident he was transporting wooden traffic barricades in a cargo compartment attached to the State utility vehicle that he was driving to Parking Field 1 (id. at 11-12). Azadian affirmed that he was driving in the eastbound traffic lane closer to the double yellow line at a speed of less than 5 mph due to the heavy traffic and that the eastbound lane closer to the shoulder was at a standstill due to an unrelated traffic accident at the toll booth (id. at 13-15, 30). According to Azadian, he was "fully within my lane of travel" when the State vehicle he was driving made contact with claimants' vehicle that was "standing" in the adjacent eastbound lane of traffic (id. at 16-17, 25). Azadian affirmed that he never drove behind claimants' vehicle, he never attempted to cross the double yellow line, and that he never attempted to pass or drive around claimants' vehicle (id. at 27-29). Azadian stopped the State vehicle and pulled over to discuss the accident with claimants. According to Azadian, an adult male was driving claimants'vehicle with a female in the front passenger's seat and two individuals in the rear passenger seat (id. at 19). Azadian heard the female in the front passenger's seat instruct the male driver to go to the campsite to get her uncle because he was the owner of the vehicle (id. at 20). Azadian observed the male driver exit the vehicle and proceed to the campsite (id.). When Park Police Officer Franscisco, who had been traveling behind Azadian in the same lane of traffic, arrived at the scene, Azadian reported that the male driver had left the scene (id. at 22, 25). Azadian heard the female front seat passenger tell Franscisco that she had been driving the vehicle when the accident occurred (id. at 23).
In reply, claimants maintain the arguments advanced on their motion and further argue that the State driver had a duty to exercise reasonable care to avoid an accident and that the State failed to present a non-negligent explanation for the accident. Additionally, claimants argue that the State failed to establish any comparative fault attributable to D. Alban, as the driver, and S. Alban and Rivera, as the passengers in the vehicle. Accordingly, claimants maintain that they are entitled to an award of summary judgment on the issue of liability because the State was the sole proximate cause of the accident and that the State's first and second affirmative defenses should be stricken.
Summary judgment is a drastic remedy which should not be granted unless it is made clear by the proponent of the application that there are no genuine issues of material fact (see Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]). Moreover, summary judgment is "rarely granted in negligence cases since the very question of whether [a] defendant's conduct amounts to negligence is inherently [a] question for the trier of fact in all but [the] most egregious instances" (Johannsdottir v Kohn, 90 A.D.2d 842 [2d Dept 1982]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Zuckerman v City of NewYork, 49 N.Y.2d 557, 562 [1980]). "Failure to make such [a] prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez, 68 N.Y.2d at 324; see Winegrad, 64 N.Y.2d at 853).
In the case at bar, the Court finds that while the State argues that there are genuine issues of material fact which preclude the Court from awarding summary judgment on the issue of liability to claimants, the State concedes that claimants' vehicle was at a standstill when the State vehicle, traveling in the adjacent lane of traffic, made contact with claimant's vehicle (Attorney's Affirmation in Opposition ¶¶ 19, 24; Ex. 3, ¶¶ 16-17). The State fails to offer a non-negligent explanation for the accident. Additionally, the Court finds that the State has failed to raise a genuine issue of material fact regarding any comparative fault attributable to claimants.
Accordingly, claimants' motion for summary judgment on the issue of liability and to strike the State's first and second affirmative defenses is GRANTED.
At the trial on damages, claimants must establish a "serious injury" under the Insurance Law to be entitled to an award of damages (see Cmaylo v Goodman, 2011 WL 864461 [US Dist Ct, CT, Mar. 10, 2011, Thompson, J., No. 3:07CV01669]; Van Nostrand v Froehlich, 44 A.D.3d 54 [2d Dept 2007]).
A trial on the issue of damages will be held as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.