Opinion
# 2018-040-059 Claim No. 128253 Motion No. M-91541
07-09-2018
THOMAS W. SCOZZAFAVA and PEARL ASHCRAFT v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY
DeGRAFF, FOY & KUNZ, LLP By: George J. Szary, Esq. BARBARA D. UNDERWOOD Attorney General of the State of New York By: Thomas Trace, Senior Attorney
Synopsis
Defendant's Motion for Summary Judgment dismissing the Claim, regarding the presence of a sofa on the NYS Thruway, granted in part and denied in part.
Case information
| UID: | 2018-040-059 |
| Claimant(s): | THOMAS W. SCOZZAFAVA and PEARL ASHCRAFT |
| Claimant short name: | SCOZZAFAVA & ASHCRAFT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 128253 |
| Motion number(s): | M-91541 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | DeGRAFF, FOY & KUNZ, LLP By: George J. Szary, Esq. |
| Defendant's attorney: | BARBARA D. UNDERWOOD Attorney General of the State of New York By: Thomas Trace, Senior Attorney |
| Third-party defendant's attorney: | |
| Signature date: | July 9, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, Defendants' Motion for summary judgment dismissing the Claim pursuant to CPLR 3212 is granted in part and denied in part.
Defendants move to dismiss pursuant to CPLR 3211(a)(2), (7) and (8) and/or for summary judgment pursuant to CPLR 3212. As this is a post-Answer motion, the Court will consider it solely as one for summary judgment (see Oppenheimer v State of New York, 152 AD3d 1006, n. 1 [3d Dept 2017]).
The Claim was filed with the office of the Clerk of the Court on July 21, 2016. The pertinent underlying facts of the case are not in dispute. On the afternoon of July 24, 2015, Claimant was driving a rented truck westbound on the I-90 portion of the New York State Thruway (hereinafter, "I-90"). Prior to Claimant's accident, dispatchers for the New York State Thruway Authority (hereinafter, "NYSTA") were notified of the presence of a couch in the westbound travel lane of I-90 at mile marker 188. Based upon the Computer-Aided Dispatch (hereinafter, "CAD") reports, the following is a time line of the events:
All references to Claimant shall mean Thomas W. Scozzafava, unless otherwise indicated, as the cause of action on behalf of Pearl Ashcraft is derivative only.
(1) 13:36:48 - Syracuse dispatcher, Nancy Dearstyne, received a direct call notifying of the presence of a couch in the travel lane of westbound I-90 at mile post 188 (Defendants' Ex. M, p. 1 [CAD Report]).
The dispatchers use military time, so 13:36:48 is 1:36:48 p.m.
(2) 13:37:07 - Ms. Dearstyne notified Albany regional dispatcher of the couch for handling (Defendants' Ex. M, p. 1).
(3) 13:39:35 - Albany regional dispatcher, Paul E. Pawlik, who was temporarily sitting in for Laurie Watson, who was away from her dispatch station for reasons that cannot be recalled, notified Amsterdam maintenance crew regarding obstruction on highway (Claimants' Ex. D, p. 18 [Transcript of Paul E. Pawlik's deposition testimony]; Defendants' Ex. H, pp. 17-19, 22-23 [Transcript of Laurie A. Watson's deposition testimony]; Defendants' Ex. M, p. 1). The dispatcher was advised that maintenance would proceed to the couch after it first dealt with traffic cones at mile post 187 (Claimants' Ex. F [compact disc of dispatcher calls]).
(4) 13:46:48 - Albany regional dispatcher is notified of the rollover accident involving Claimant (Defendants' Ex. M, p. 2).
(5) 13:47:20 - New York State Troopers notified by Albany regional dispatcher of the accident involving Claimant (id.).
(6) 13:47:46 - Amsterdam maintenance crew arrived at accident scene (id.).
(7) 14:01:02 - New York State Trooper Watts arrived at accident scene (Defendants' Ex. J, p. 37 [Transcript of Brian S. Watts' deposition testimony], Defendants' Ex. M, p. 2).
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
Defendants assert that, to establish negligence, it must be shown that they created a dangerous condition, or had actual or constructive notice of it, and failed to take reasonable measures to correct it (see Brooks v New York State Thruway Authority, 73 AD2d 767 [3d Dept 1978], affd 51 NY2d 892 [1980]; Rinaldi v State of New York, 49 AD2d 361 [3d Dept 1975]). Defendants also assert that Claimants must establish that the negligence in question was the proximate cause of the resulting accident (see Bernstein v City of New York, 69 NY2d 1020 [1987]). Defendants argue that NYSTA took reasonable measures to remove the couch promptly. As described in the Affidavit of Dominick J. Gabriel, P.E., attached to the Affirmation of Thomas Trace, Esq. (hereinafter, "Trace Affirmation), as Exhibit L, the approximate 10-minute period that it took NYSTA maintenance personnel to respond was prompt and reasonable under the circumstances. NYSTA received notice at 1:36:48 p.m., and the report of the couch between lanes was entered at 1:37:07 p.m. Maintenance was dispatched at 1:39:35 p.m., and they arrived by 1:47:46 p.m. (see Tromblee v State of New York, 52 AD2d 666 [3d Dept 1976] [response time of 1 ½ to 2 hours after notification of a slippery condition found to be reasonable]) (Trace Affirmation, ¶ 13).
Regarding Claimants' contention that State Police should have been called to set up appropriate warnings and lane closures, Defendants assert that such traffic control is a governmental function immune from liability, and Claimants have not alleged facts that would give rise to a special relationship to "provide a proper predicate for tort liability against the [State]" premised on its regulation of traffic (see Balsam v Delma Eng'g Corp., 90 NY2d 966 [1997]; see also Cuffy v City of New York, 69 NY2d 255 [1987]). Defendants argue that Claimants have not alleged the necessary direct contact and justifiable reliance that is required in order to establish a special relationship (see Cuffy v City of New York, supra at 260). Traffic regulation performed by police agencies "has traditionally been assumed by police rather than by private actors, [and it] is a tell-tale sign that the conduct is not proprietary in nature" (Balsam v Delma Eng'g Corp., supra at 968; see Rogers v State of New York, 288 AD2d 926 [4th Dept 2001]). Defendants assert they are, thus, immune from liability, since, if a State Trooper had been dispatched, he/she would have provided traffic control, which is a governmental function. Such a duty is owed to the public generally (Trace Affirmation, ¶ 14).
In opposition to the Motion, Claimants' counsel argues Defendants were negligent in failing to properly respond to the presence of a significant hazard in the travel lane of I-90, as: (a) the Albany regional dispatcher failed to contact a New York State Trooper to respond to the hazard, as required by the NYSTA Communications Manual (Ex. E attached to Affidavit of George J. Szary, Esq. [hereinafter, "Szary Affidavit"], p. IV-13); (b) delayed 2 minutes, 28 seconds before taking any action to address the hazard following notification; (c) delayed 10 minutes to contact the State Police, only doing so after the accident occurred; and (d) with timely notification, a State Trooper or maintenance crew could have arrived at the scene of the hazard prior to Mr. Scozzafava's accident to warn traffic and address the hazard (Szary Affidavit, ¶ 16; see Affidavits of Paul D. Linnée, ENP, and Michael J. Tuttman, P.E.). Claimants further assert that the failure of the Albany regional dispatcher to follow proper protocol and the significant delay in taking action deviated from good and accepted standards of emergency response practices, and was a substantial factor in causing the accident of July 24, 2015, in which Mr. Scozzafava was injured (Szary Affidavit, ¶ 17).
In addition, Claimants' counsel states:
18. … Defendants' argument concerning governmental immunity is irrelevant to this matter as the negligence alleged here was not in design or construction of the highway, nor is the manner of traffic control by police after the accident questioned, such that a governmental function was involved. The issue, which Defendants fail to discuss, is the negligence of the Albany regional dispatcher in responding to notification of the couch, which prevented the Troopers or the maintenance crew from arriving on the scene before the accident and taking traffic control measures which would have prevented it.
(Szary Affidavit, ¶ 18).
The Court will first address Claimants' contention that the dispatcher was required, by the NYSTA Communications Manual (hereinafter "The Manual"), to contact the State Police regarding the presence of the couch in the travel lanes of I-90. The Manual states at page IV-13
2. When large objects or domestic animals are reported on the pavement, dispatch a State Police Patrol to the scene to provide traffic control or to secure the animals.
Assuming, arguendo, that the couch constituted a "large object," the police are dispatched to the scene, as pertinent here, to "provide traffic control." The Court of Appeals stated in Balsam v Delma Eng'g Corp., supra at 968:
The Manual does not define "large objects."
Like crime prevention, traffic regulation is a classic example of a governmental function undertaken for the protection and safety of the public pursuant to the general police powers (Clinger v New York City Tr. Auth., 85 NY2d 957, 959 [1995]; Kamnitzer v City of New York, 265 App Div 636 [1st Dept 1943]; Parsons v City of New York, 248 App Div 825 [2d Dept 1936], affd 273 NY 547 [1937]. That the function has traditionally been assumed by police rather than by private actors is a tell-tale sign that the conduct is not proprietary [in nature] (Miller v State of New York, 62 NY2d [506,] 512 [1984]. Thus, like the unsuccessful claim that a public entity failed to properly police or close off a tunnel that was historically troubled by criminal attacks (see, Clinger v New York City Tr. Auth., [supra]), the challenged police failure to close the roadway or divert traffic here similarly falls well within the immunized "governmental" realm of municipal responsibility.
Balsam involved a plaintiff who sued New York City based upon the alleged negligence of the police in failing to close the roadway, redirect traffic, or place warning flares or cones in the area of any icy road conditions prior to his accident.
In Rogers v State of New York (288 AD2d 926 [4th Dept 2001]), a case involving a deer carcass on a roadway, Claimant alleged the State was negligent in failing to remove the object from the roadway after its presence had been reported and a State Trooper had been sent to the scene. The Appellate Division held that the alleged breach of duty did not involve a proprietary function but the regulation of traffic, which is a police, governmental function, and Claimant failed to establish the existence of a special relationship to provide the proper predicate for that liability (see Souto v State of New York, UID No. 2016-051-509 [Ct Cl, Martin, J., July 5, 2016]).
Claim involved a large pothole on roadway which caused damage to claimant's vehicle. Claimant argued the State Police could have responded and placed flares or cones around the hazard. The Court found these activities to fall under general police powers, citing Balsam (supra) and dismissed the Claim.
Here, the situation is similar. The NYSTA Manual calls for the State Police to be dispatched when large objects are on the roadway to provide traffic control. As set forth above, this is a general police power, and, thus, a governmental, not a proprietary, function. Claimants have failed to establish the existence of a special relationship between Mr. Scozzafava and the State Police. Therefore, the Court finds and concludes that Defendants have established a prima facieshowing of entitlement to judgment as a matter of law regarding Claimants' claim premised upon the State's regulation of traffic.
The Court further concludes that Claimants' opposition papers failed to present evidence to demonstrate material issues of fact exist and, thus, are insufficient to overcome Defendants' prima facie showing of entitlement to judgment in its favor on this cause of action. Therefore, based upon the foregoing, Defendants' Motion for summary judgment is granted, and the cause of action regarding negligence in failing to provide traffic control is dismissed.
The Court will now address the cause of action regarding the Albany regional dispatcher's alleged negligence in failing to respond to the presence of the couch for 2 minutes, 28 seconds after receiving notification that the couch was in the roadway, as well as other alleged delays in taking various actions. Claimants assert that the response time of the dispatcher was not reasonable. Defense counsel asserts in his Reply Affirmation that Paul E. Pawlik, "the Albany Dispatcher who notified Maintenance at 1:39:35 [p.m.] testified, 'there's a lot of things that go on behind the scenes that aren't in here [the CAD Report] … [y]ou could be on the phone taking a different call … [y]ou could be on the radio with another person … say, a patrol or whoever. You could be running a license plate or anything else' " (Trace Reply Affirmation, ¶ 6, and Ex. D, p. 25, attached to Szary Affidavit [Deposition Transcript of Paul E. Pawlik]).
Claimants assert, to the contrary, that the 2 minute, 28 second delay in notifying maintenance of the couch was unreasonable. When the State engages in a proprietary function, such as highway and road maintenance, it is held to the same duty of care as private actors engaging in similar functions (Lynch v State of New York, 21 Misc 3d 1127[A], *3 [Ct Cl 2005], affd on other grounds, 37 AD3d 772 [2d Dept 2007]; Coco v State of New York, 123 Misc 2d 653, 655-656 [Ct Cl 1984]; see Sebastian v State of New York, 93 NY2d 790, 793 [1999]; Oeters v City of New York, 270 NY 364, 368 [1936]; Kamnitzer v City of New York, 265App Div636, 638-639 [1st Dept 1943]; Murphy v Incorporated Vil. of Farmingdale, 252App Div327, 329 [2d Dept 1937], appeal denied 13 NE2d 480 [1938]). Thus, Defendants have an absolute, "nondelegable duty to maintain its roads and highways in a reasonably safe condition, and … liability will flow for injuries resulting from a breach of that duty" (Levine v New York State Thruway Auth., 52 AD3d 975, 976 [3d Dept 2008], quoting Nurek v Town of Vestal, 115 AD2d 116, 116-117 [3d Dept 1985]; see Friedman v State of New York, 67 NY2d 271, 286 [1986]; Maldonado v New York State Thruway Auth., 86 AD3d 785, 786 [3d Dept 2011]). The duty "is intended to protect the traveling public" (Lopes v Rostad, 45 NY2d 617, 624 [1978]) and Defendants may be held liable for any such breach of duty in accordance with "general principles of negligence and comparative negligence" (Bottalico v State of New York, 59 NY2d 302, 305 [1983]; see Weiss v Fote, 7 NY2d 579, 585 [1960]).
Defendants are not insurers of public safety, however, and negligence cannot be inferred solely from the occurrence of an accident on their roadway (see Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Brooks v New York State Thruway Auth., supra at 768).
Claimants must establish by a preponderance of the credible evidence that the presence of the couch on the roadway constituted a dangerous condition that constituted a breach of Defendants' duty to maintain its roadway in a reasonably safe condition and that Defendants had actual or constructive notice thereof. Based upon the submissions of the parties, however, it appears to the Court the fundamental question at issue here is whether Defendants took reasonable steps to alleviate the condition. It has been held that whether a defendant received notice of a dangerous condition and unreasonably delayed before remedying the condition is a factual issue (Slaughter v State of New York, 238 AD2d 770, 770 [3d Dept 1997]; see Tromblee v State of New York, supra at 667; see also Simmons v Saugerties Cent. School Dist., 82 AD3d 1407, 1410 [3d Dept 2011]). Thus, the Court finds and concludes that an issue of fact exists as to whether Defendants took reasonable steps to alleviate the condition, i.e., remove the couch from the roadway.
Therefore, based upon the foregoing, Defendants' Motion for summary judgment dismissing the Claim is granted in part and denied in part.
July 9, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered by the Court on Defendants' Motion for summary judgment, pursuant to CPLR 3212, dismissing the Claim: Papers Numbered Notice of Motion, Affirmation in Support, Exhibits Attached 1 Affidavit in Opposition, Exhibits Attached, Affidavit of Paul D. Linnée, ENP, & Exhibit Attached, Affidavit of Michael J. Tuttman, P.E., & Exhibit Attached, & Memorandum of Law 2 Defendants' Reply Affirmation 3 Filed Papers: Claim, Answer