Opinion
# 2020-029-023 Claim No. 132337 Motion No. M-94992
02-21-2020
ROBERT J. RILEY v. THE STATE OF NEW YORK
RICHARD A. BERNSLEY, ESQ. LETITIA JAMES, ATTORNEY GENERAL By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
The claim alleges that the driver of a state vehicle was negligent in hitting claimant's car at an intersection in Newburgh, New York resulting in physical injuries and property damage. Claimant's motion for partial summary judgment was granted to the extent of finding liability for negligence, and otherwise denied.
Case information
| UID: | 2020-029-023 |
| Claimant(s): | ROBERT J. RILEY |
| Claimant short name: | RILEY |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132337 |
| Motion number(s): | M-94992 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. MIGNANO |
| Claimant's attorney: | RICHARD A. BERNSLEY, ESQ. |
| Defendant's attorney: | LETITIA JAMES, ATTORNEY GENERAL By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 21, 2020 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim pleads negligence by the State and seeks damages for injuries claimant sustained in a July 2, 2018 automobile accident on Dubois Street at the intersection with Third Street in the City of Newburgh, Orange County, New York. Claimant moves fo partial summary judgment on the issue of liability, and striking the affirmative defenses of contributory and comparative negligence. The State opposes.
The claim was filed on December 3, 2018. The answer asserts comparative negligence as a first affirmative defense, and assumption of the risk as a second affirmative defense. The Note of Issue was filed on November 26, 2019. Pursuant to CPLR 3212(b), a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions [. . .]. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."
The moving party must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient admissible evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The court must carefully scrutinize the motion papers in a light most favorable to the party opposing the motion (see Vega v Restani Constr. Corp., 18 NY3d 499, 502 [2012]). If the moving party fails, the court must deny the motion. If the moving party succeeds, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see id.; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Bald, conclusory assertions or speculation and "[a] shadowy semblance of an issue" are insufficient to defeat a summary judgment motion (S.J. Capalin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 341 [1974]). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Ruiz v Griffin, 71 AD3d 1112 [2d Dept 2010], quoting Scott v Long Is. Power Auth., 294 AD2d 348 [2d Dept 2002]). Lastly, summary judgment is particularly uncommon in actions for negligence in which the inquiry is often fact-intensive (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]).
In support of the motion, claimant submitted an affirmation by his attorney Richard A. Barnsley ("Bernsley Aff."), copies of the pleadings, an affidavit by claimant ("Riley Aff."), the transcript of State employee Mr. Connolly's examination before trial ("Connolly EBT"), a copy of an abstract of Mr. Connolly's driving record, and a copy of the police accident report. The State opposed with an affirmation by Assistant Attorney General Jeane L. Strickland Smith ("Smith Aff."), the transcript of claimant's examination before trial ("Riley EBT"), and copies of several photographs. Claimant submitted an attorney's affirmation in reply.
The certified but unsigned Connolly EBT transcript is admissible. Claimant's attorney affirms that he mailed the transcript to Ms. Strickland Smith on October 14, 2019, and has not received a response (see Bernsley Aff. at ¶ 6; cover letter and transcript [Exh. C]). The EBT transcript is deemed properly executed without corrections or changes pursuant to CPLR 3116(a).
Claimant's admissible evidence establishes that shortly before 11:50 a.m., on July 2, 2018, claimant was driving a rented 2017 Hyundai Sonata heading North on Dubois Street in Newburgh approaching the intersection with Third Street. There was no stop sign or traffic control device on Dubois Street prior to the intersection. At the same time, Matthew Connolly was driving a 2016 Chevrolet Silverado pickup truck registered to the Department of Corrections and Community Supervision ("DOCCS") and heading East on Third Street toward the intersection with Dubois Street. Mr. Connolly was on his way to pick up building materials in the course of his employment as a motor vehicle operator with DOCCS. There was a stop sign on Third Street immediately before the intersection. Mr. Connolly drove onto Dubois Street and the front of the truck collided with the left side of claimant's vehicle, causing the vehicle to lose control, drive up on the sidewalk and strike a pole.
Mr. Connolly started working for DOCCS in 2015. The day of the accident he was driving with a suspended license, his license had previously been suspended four times since April 2015.
The accident description contained in the police accident report provides that:
"Driver 1 stated while heading north on Dubois Street in vehicle 1 a rental vehicle, vehicle 2 heading east on Third Street didn't stop for the stop sign posted on Third Street at Dubois Street and hit the rental vehicle he was driving on the driver side door causing vehicle 1 to lose control, drive up on the sidewalk and strike a pole damaging it at 102 Dubois Street. Driver 1 complained of pain all over and was taken to St. Luke's Hospital by Mobile Life. Driver 2 stated while heading east on Third Street, didn't see vehicle 1 coming when he pulled out and hit vehicle 1" (Exh. E to Barnsley Aff.).
Claimant also described the accident in his affidavit. He attests that at the time of the accident he was not exceeding the 15 mph speed limit, there was clear visibility, traffic was light to medium, he saw the pickup truck approach the stop sign and assumed it would stop so he proceeded straight, and when he realized the truck was not yielding he tried to avoid it by "pressing on the brake pedal, honking the horn of my vehicle and turning my vehicle from the oncoming vehicle" (Riley Aff. at ¶¶ 10-17 [Exh. B to Barnsley Aff.]).
Mr. Connolly testified at his EBT (Exh. C to Barnsley Aff.) that he stopped at the stop sign and looked both ways, but he could not recall if he said that to the police officer. Mr. Connolly acknowledged reporting to DOCCS that he stopped at the stop sign, and he recognized the report he submitted. He did not recall other facts about the incident, such as: the street he was on; where his license was (he did not have it with him); and whether he saw any traffic, was planning to turn or go straight, saw the car before colliding with it, heard a horn or any other sounds, his window was open or shut or he was listening to music.
The court finds that claimant has met his burden to establish the State's liability for negligence as a matter of law. Claimant has made a prima facie showing that Mr. Connolly, a DOCCS employee acting in furtherance of his employment, failed to yield the right-of-way to claimant in violation of Vehicle and Traffic Law § 1142 (a). Pursuant to that provision, a driver entering an intersection controlled by a stop sign must yield the right-of-way to any other vehicle that is already in the intersection or that is approaching so closely as to constitute an immediate hazard (see Vehicle and Traffic Law § 1142 [a]). "As a general matter, a driver who fails to yield the right-of-way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142 (a) and is negligent as a matter of law" (Fernandez v American United Transp., Inc., 177 AD3d 704, 706 [2d Dept 2019], quoting Hunt v New York City Tr. Auth., 166 AD3d 735, 735 [2d Dept 2018]; see Fuertes v City of New York, 146 AD3d 936, 936 [2d Dept 2017]).
The admissible evidence establishes that Mr. Connolly failed to yield. The police report contains claimant's and Mr. Connolly's statements to the officer. Mr. Connolly stated that he did not see claimant's car before hitting it. Claimant's statement corroborates his affidavit, in which he describes how he assumed the truck would stop, and when he saw it coming toward his car he tried to get away from it. "[A] driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield" (Fuertes at 937). The fact that Mr. Connolly testified he did stop before entering the intersection is not dispositive, "since the evidence established that, even if he did stop, he failed to yield to the vehicle driven by [claimant], which had the right-of-way" (Fernandez at 706; see Balladares v City of New York, 177 AD3d 942, 943 [2d Dept 2019]). Indeed, "Mr. Connolly's failure to yield to claimant's car traveling on Dubois Street with the right-of-way, and his "admitted failure to see that vehicle until the moment of impact, demonstrates [his] negligence as a matter of law" (Yelder v Walters, 64 AD3d 762, 764 [2d Dept 2009]).
Claimant having made out a prima facie case of liability and the absence of material issues of fact, the burden shifts to the State to tender admissible evidence sufficient to raise a disputed issue of fact (see Vega at 502). The State submitted the transcript of claimant's EBT and copies of several photographs marked as exhibits at the EBT (see Exhs. A and B to Smith Aff.). Claimant argues the transcript is not admissible because the Assistant Attorney General never provided it to claimant's attorney for claimant's review and signature, as required by CPLR 3116 (Barnsley Reply Aff. at ¶¶ 3-5). The court agrees. It is the burden of the party submitting the transcript to show compliance with CPLR 3116(a), which requires that the transcript be provided to the deponent to review (see Franzese v Tanger Factory Outlet Ctrs., Inc., 88 AD3d 763, 763-764 [2d Dept 2011]). The State's opposition does not address this issue. Nevertheless, claimant's EBT testimony, albeit unreviewed, does not raise a disputed issue of material fact.
Claimant testified that the truck "either rolled through a stop sign or just completely went straight through a stop sign [. . .] and T bone me," and on being asked how fast the truck was going when he first saw it, he said, "I cannot, to be honest with you" (Riley EBT: 15-16 [Exh. A to Smith Aff.]). The State argues that claimant's testimony conflicts with his affidavit, in which he attests that the truck "was rapidly approaching" (Exh. B at ¶ 18 to Barnsley Aff.). The court does not find claimant's statements to be in conflict, and as discussed above, whether Mr. Connolly stopped is not dispositive because claimant's car on Dubois Street had the right-of-way and the truck entering the intersection failed to yield.
The Assistant Attorney General then concludes that the photographs of claimant's car show scrape marks and not "crush damage indicative of a harsh T bone collision" (Smith Aff. at ¶ 3). The Assistant Attorney General is not a witness with the expertise to draw this conclusion, and in any event the photographs are not authenticated. She also speculates there are issues of fact because "it is unclear from the record which vehicle reached the intersection first" (id. at ¶ 4). The court does not find this issue is pertinent to liability, and the evidence in the record shows that the truck hit claimant's car, not the other way around. To the extent the State is attempting to argue comparative negligence, the State has not submitted any evidence to support that theory. Besides, where, as here, a claimant submits admissible evidence showing the State's liability for negligence as a matter of law, to be entitled to partial summary judgment he does not bear the burden of establishing the absence of his own comparative fault (see Balladeres at 943, citing Rodriguez v City of New York, 31 NY3d 312, 324-325 [2018]). If evidence exists that claimant was somehow at fault, then the State will have an opportunity to present that evidence at the damages trial to show the percentage of claimant's fault, if any (Rodriguez at 324-325). Granting claimant's motion for summary judgment on the issue of liability does not entitle claimant to an order striking the State's affirmative defense of comparative negligence, which will now be limited to the issue of damages (see id.).
This case differs from Balladares, in which the Second Department reversed a denial of summary judgment as to both liability against the defendant and dismissal of the defendant's affirmative defense alleging comparative negligence. In that case, the moving parties were innocent passengers in a vehicle with the right-of-way that was hit by a State vehicle entering an intersection with a stop sign. The court reasoned that the innocent passengers demonstrated they did not contribute to the accident, and their right to summary judgment was "not 'restricted by potential issues of comparative negligence' which may exist as between the defendant driver and the driver of the host vehicle" (177 AD3d at 943, quoting Medina v Rodriguez, 92 AD3d 850, 850 [2d Dept 2012]).
Accordingly, claimant's motion for summary judgment is granted on the issue of liability in favor of claimant and against the State, and otherwise denied. The Clerk of the Court is directed to enter an interlocutory judgment. A trial on the issue of damages will be scheduled as soon as practicable.
February 21, 2020
White Plains, New York
STEPHEN J. MIGNANO
Judge of the Court of Claims
Papers considered:
Notice of Motion, Affirmation in Support and Exhibits.
Affirmation in Opposition and Exhibits
Affirmation in Reply