Opinion
# 2016-050-022 Claim No. 122149 Motion No. M-87467
04-07-2016
PAUL DESTEFANO v. THE STATE OF NEW YORK
Jacoby & Jacoby, Esqs. By: Brian M. Martin, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: John L. Belford, Assistant Attorney General
Synopsis
Defendant moves for summary judgment in a claim for damages sustained in a bicycle accident. The proof submitted by defendant in support of the motion reflects the presence of issues of fact related to the defense upon which the motion is predicated (that claimant assumed the risk and maintenance of the roadway). The presence of such issue of fact requires a denial of the motion. Defendant has failed to discharge its initial burden of proof and the motion is denied.
Case information
| UID: | 2016-050-022 |
| Claimant(s): | PAUL DESTEFANO |
| Claimant short name: | DESTEFANO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122149 |
| Motion number(s): | M-87467 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Jacoby & Jacoby, Esqs. By: Brian M. Martin, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: John L. Belford, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 7, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The defendant moves for summary judgment in this claim for damages sustained in a bicycle accident alleged to have occurred on September 23, 2012. The motion is opposed by claimant.
The party seeking the "drastic" (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]) relief of summary judgment is required to demonstrate initially that he/she is entitled to judgment as a matter of law (see Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]) and that there exists no material issue of fact requiring a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr, 64 NY2d 851 [1985]). Only if the moving party discharges such initial burden of proof does the burden shift to the party opposing the motion, who then is required to demonstrate the existence of a material issue of fact requiring a trial (see Friends of Animals, 46 NY2d 1065).
Here, the proof submitted by defendant in support of the motion reflects the presence of material issues of fact requiring a trial for resolution including but not limited to (1) whether or not a defect existed in the drainage grate at the location and the time of the subject accident, (2) whether or not the drainage grate at said location constituted a dangerous condition on the date of the subject accident, (3) whether the defendant had actual or constructive notice of such defective or dangerous condition and (4) whether the claimant assumed the risk. Here, as in Pirrelli v Long is. R.R., 226 AD2d 166 [1st Dept 1996], the presence of such issue of fact requires a denial of the motion. Defendant has failed to discharge its initial burden of proof. Therefore, the issue of the sufficiency of the opposing proof is not reached (see Parmerter v State of New York, 36 Misc 3d 639 [Ct Cl 2012]). Accordingly, the motion is denied.
April 7, 2016
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers have been read and considered by the Court on the defendant's motion for summary judgment: 1. Notice of Motion, Affirmation is Support with Exhibits A through I. 2. Affirmation in Opposition with Exhibits A through M. 3. Affirmation in Response.