Opinion
# 2016-050-052 Claim No. 123265 Motion No. M-88676
09-14-2016
TED VALENTI AND INES VALENTI v. THE STATE OF NEW YORK
Napoli, Shkolnik, PLLC By: Jed Kirsch, Esq. Havkins, Rosenfield, Ritzert & Varriale By: Lindsay R. Kaplow, Esq.
Synopsis
Defendant's motion for summary judgment is denied because the proof adduced by the defendant in support of its motion reflects the presence of material issues of as to whether a dangerous or defective condition existed at the location of the alleged claim.
Case information
| UID: | 2016-050-052 |
| Claimant(s): | TED VALENTI AND INES VALENTI |
| Claimant short name: | VALENTI |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 123265 |
| Motion number(s): | M-88676 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Napoli, Shkolnik, PLLC By: Jed Kirsch, Esq. |
| Defendant's attorney: | Havkins, Rosenfield, Ritzert & Varriale By: Lindsay R. Kaplow, Esq. |
| Third-party defendant's attorney: | |
| Signature date: | September 14, 2016 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This is a motion by the defendant seeking summary judgment dismissing the claim. The claim by Ted Valenti ("claimant") is for damages he sustained on May 4, 2013 while he was playing softball at the West Ball Field of Jones Beach State Park. His wife, claimant Ines Valenti, alleges loss of consortium. Claimants oppose the defendant's motion.
The claimants served a notice of intention to file a claim (NOI) on July 22, 2013. The claim was filed on September 26, 2013. Because the claim initially served on the Attorney General on November 12, 2013 was unverified it was rejected. A verified claim was served thereafter on February 19, 2014. Issue was joined on or about March 31 ,2014. Among other affirmative defenses the defendant asserted that the NOI and the claim were insufficiently particular under Court of Claims Act (CCA) § 11 (b) and that the claimant assumed the risk of injury.
The party seeking the "drastic" (see Moscowiz v Garlock, 23 AD2d 943 [3d Dept 1965]) relief of summary judgment must demonstrate initially its entitlement to judgment as matter of law and that no material issue of fact is present which would require a trial (see Walden Woods Homeowners' Assoc. v Friedman, 36 AD3d 691 [2d Dept 2007] citing Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Such initial burden of proof must be met with competent, admissible proof (see Chiarini v County of Ulster, 9 AD3d 769 [3d Dept 2004]; Santanastasio v Doe, 301 AD2d 511 [2d Dept 2003]). Only if the moving party discharges its initial burden of proof does the burden then shift to the party opposing the motion; if the burden shifts, the opposing party must submit admissible proof demonstrating the existence of a triable issue of fact (see Bevens v Tarrant Manufacturing Co., Inc., 48 AD3d 939 [3d Dept 2008]).
Here, the defendant submits through the affirmation of its attorneys, inter alia, the various depositions held herein and the affidavit of defendant's expert - a professional engineer. The proof adduced by the defendant in support of its motion reflects the presence of material issues of as to whether a dangerous or defective condition existed at the bottom of the outfield fence and/or the ground beneath the lower rail of said fence on the date of the claimant's accident and, if so, whether it was a substantial factor in causing the accident and injury in which claimant was involved on May 4, 2013. There are also fact questions presented by the defendant's proof as to the claimant's awareness of the specific defect claimed to have been a substantial factor in causing the accident and injury and as to whether the condition or defect was of the nature and extent as would be within the ambit of normal risks associated with the sport of softball (or, on the other hand, of such nature and extent that it would be outside the ambit of such normal, foreseeable risks of the game). In view if the presence of such issues of fact, the defendant's proof fails to discharge defendant's initial burden on the motion. In view of the fact that defendant's initial burden was not discharged, the issue of the sufficiency of claimants' opposing proof is not reached (see Cugini v System Lumber Co., Inc, 111 AD2d 114 [1st Dept 1985] app dismissed 65 NY2d 1053 [1985]); Soto-Lopez v Board of Managers of Crescent Tower Condominium, 44 AD3d 846[2d Dept 2007]).
To the extent that the defendant relies on CCA § 11 (b) in arguing that the NOI and claim are insufficiently particular, the Court finds such contention to be without merit.
The motion is denied.
September 14, 2016
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the defendant's motion for summary judgment: 1. Memorandum of Law filed June 1, 2016. 2. Notice of Motion, Affirmation in Support with Exhibits. 3. Affirmation in Opposition. 4. Reply Affirmation.