Opinion
# 2017-053-517 Claim No. 098768 Motion No. M-90153
05-11-2017
RICHARD H. WARNER, Individually and as Guardian of MARY DOROTHY WARNER, an incapacitated person v. THE STATE OF NEW YORK
COSGROVE LAW FIRM By: Edward C. Cosgrove, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Carlton K. Brownell, III, Esq. Assistant Attorney General
Synopsis
Motion seeking to set aside Decision of the Court and the Judgment dismissing the claim following the trial is denied.
Case information
| UID: | 2017-053-517 |
| Claimant(s): | RICHARD H. WARNER, Individually and as Guardian of MARY DOROTHY WARNER, an incapacitated person |
| Claimant short name: | WARNER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 098768 |
| Motion number(s): | M-90153 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | COSGROVE LAW FIRM By: Edward C. Cosgrove, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Carlton K. Brownell, III, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 11, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) | 2017-053-518 |
Decision
The claimant, Richard H. Warner, brings this motion pursuant to CPLR § 4404 (b) seeking to set aside the Decision of the Court, and the Judgment entered upon the Decision dismissing the two claims after trial. The two claims arise from a motor vehicle accident that occurred on September 2, 1997 on New York State Route 20 in the town of West Seneca, County of Erie, New York (a/k/a and hereafter "Southwestern Boulevard"). The claims allege that the defendant State of New York was negligent in the design, construction, reconstruction and maintenance of this state highway and in particular, its intersection with Crofton Drive.
The Decision of the Court was that claimant failed to establish by a preponderance of the evidence that the defendant was negligent in that he did not establish that a hazardous or dangerous condition existed at the intersection of Crofton Drive and Southwestern Boulevard prior to the subject accident. The Court also ruled that even if claimant had established that a hazardous or dangerous condition existed (which he did not), the proof at trial failed to establish that the defendant had actual or constructive notice of that condition. The Court further ruled that even if claimant had established that a hazardous or dangerous condition existed of which the defendant had actual or constructive notice (both of which he did not), that claimant failed to establish by a preponderance of the evidence that the hazardous or dangerous condition was the proximate cause of the accident.
The claimant argues that "the decision of the Court was against the weight of the evidence and affected by the other legal errors set forth in the memorandum of law."
CPLR § 4404 (b) provides as follows:
"After a trial not triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside its decision or any judgment entered thereon. It may make new findings of fact or conclusions of law, with or without taking additional testimony, render a new decision and direct entry of judgment, or it may order a new trial of a cause of action or separable issue."
Whether relief should be granted or not is a matter within the discretion of the court (Di Bernardo v Gunneson, 65 AD2d 828, 829 [3d Dept 1978]; see Matter of Esterle v Dellay, 281 AD2d 722, 724 [3d Dept 2001]). Furthermore, "[a] judgment rendered after a bench trial should not be disturbed unless it is obvious that the court's conclusions cannot be supported by any fair interpretation of the evidence" (Saperstein v Lewenberg, 11 AD3d 289, 289 [1st Dept 2004]; see Heitman v State of New York, UID No. 2010-041-018 [Ct Cl, Milano, J., April 27, 2010]).
The claimant first contends in his memorandum of law that the Court, upon finding that the doctrine of qualified immunity did not apply, then "applied the standard of liability that applies to claims against the State arising from its governmental functions." The claimant's contention is without merit. With respect to the standard of liability to be applied in the absence of the qualified immunity defense, the Decision at pages 22-23 states that:
"In the absence of the qualified immunity defense, it has been held that the defendant's liability can still be established by ordinary negligence principles (Melkun v State of New York, UID No. 2007-030-031 [Ct Cl, Scuccimarra, J., June 27, 2007]; Meyer v State of New York, UID No. 2004-009-136, [Ct Cl, Midey, J., Dec. 20, 2004]). As a result, in order to establish the defendant's liability, the claimant has the burden to establish that a dangerous condition existed at the Crofton Drive intersection; that defendant either created the dangerous condition or had actual or constructive notice of its existence and failed to take steps to alleviate it or warn motorists; and that this condition was the proximate cause of the accident (see Redcross v State of New York, 241 AD2d 787, 789 [3d Dept 1997], lv denied 91 NY2d 801 [1997]; Rockenstire v State of New York, 135 AD3d 1131 [3d Dept 2016]; Brown v State of New York, 79 AD3d 1579, 1582 [4th Dept 2010])."
This was the standard of liability applied by the Court when considering the evidence presented by the parties and upon which the Court concluded that claimant failed by a preponderance of the evidence to establish that a dangerous condition existed at the Crofton Drive intersection. The sentences highlighted in claimant's post-trial memorandum of law from page 30 of the Decision relate solely to the evaluation of whether it was reasonable in light of Catherine Breen's letter to expect that a DOT traffic engineer would conduct a safety investigation when conducting a speed study. The claimant's expert witness, Alfred Bachner, alleged that it was standard Department of Transportation (DOT) practice to request accident history data and conduct a safety investigation when conducting a speed study. However, Mr. Bachner cited to no DOT rule, policy or procedure to support his opinion and the defendant's expert witness, William Logan, testified to the contrary. The Court concluded after evaluating the testimony of the two expert witnesses and the testimony of DOT employees Kenneth Kosnikowski and Patricia Pericak that there was no rule, policy, custom or practice requiring that a safety investigation be conducted along with a speed study and that it was the Court's factual determination that the defendant's traffic engineer acted reasonably under the circumstances. The citation to Weiss v Fote, supra at 589 in the Decision was included as support for the legal concept of what is "reasonable" as pertains to the actions of a traffic engineer. In no way did the Court evaluate the evidence or determine this action based upon the qualified immunity defense. Rather, the Court applied general negligence principles as directed by the Court of Appeals in Weiss v Fote, supra when the qualified immunity defense is not applicable to determine that claimant failed to establish the existence of a hazardous or dangerous condition upon which to find the defendant negligent (Brown v State of New York, 79 AD3d 1579, 1584 [4th Dept 2010]).
Claimant's Post-Trial Memorandum of Law at page 3.
The Court has evaluated the remaining arguments of claimant in his submissions and finds that claimant's motion fails to demonstrate that the Court's finding that claimant failed to establish that the defendant was negligent was not "supported by any fair interpretation of the evidence" (Saperstein v. Lewenberg, supra at 289).
Accordingly, claimant's motion is denied.
May 11, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and attorney's affidavit of Edward C. Cosgrove, Esq. dated March 20, 2017; and 2. Affirmation in opposition of Assistant Attorney General Carlton K. Brownell, III, Esq. dated April 7, 2017.