New York State Court of Claims

New York State Court of Claims

HAYES v. THE STATE OF NEW YORK, #2000-014-538, Claim No. 98728, Motion No. M-62351


Synopsis


Defendant's motion for summary judgment dismissing the claim, on the ground that the condition which allegedly caused the underlying accident was open, obvious and readily observable, is denied.

Case Information

UID:
2000-014-538
Claimant(s):
NORA MARY HAYES and WILLIAM HAYES
Claimant short name:
HAYES
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98728
Motion number(s):
M-62351
Cross-motion number(s):

Judge:
S. Michael Nadel
Claimant's attorney:
Siben & Siben LLPBy: Richard F. Simmons
Defendant's attorney:
Rubin & Fiorella, LLPBy: Charlie Green, Jr.
Third-party defendant's attorney:

Signature date:
December 21, 2000
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on the defendant's motion for summary judgment dismissing the claim: Notice of Motion, Affirmation and Exhibits annexed; Affirmation (in opposition) and Affidavits and Exhibits annexed. Filed papers: Claim, Answer.

The claim alleges that the claimant Nora Mary Hayes, while in the vicinity of a construction site, was injured when she fell as she alighted from an unreasonably steep sidewalk curb onto an unfinished roadway that contained dirt, gravel, and other debris.

Defendant moves for summary judgment dismissing the claim on the ground that the condition which allegedly caused the accident was open, obvious and readily observable, and that Ms Hayes was aware of the condition for a period of time prior to her accident.

The defendant's motion is based upon the deposition testimony of Ms Hayes (Exhibit D to defendant's submission) and of New York State Department of Transportation engineer Eugene Sciora (Exhibit E to defendant's submission). The foregoing deposition testimony is insufficient to satisfy the defendant's burden. Alvarez v Prospect Hospital, 68 NY2d 320, 324. Indeed, upon review it is clear that there are questions of fact as to the circumstances at the site as well as the extent of the claimant's familiarity with it.

The defendant's reliance on Patrie v Gorton, 267 AD2d 582, lv den 94 NY2d 761, and Best v Town of Islip, 265 AD2d 357, is misplaced. There is nothing in the record before the Court which establishes that Ms Hayes had anywhere near the familiarity with the condition in question as did the plaintiffs in those cases. Under the circumstances, an issue of fact exists (see, Friedman v City of New York, 25 NY2d 764), which precludes summary judgment.

"Summary judgment is a drastic remedy which ‘deprives the litigant of his day in court * * * [and therefore] should only be employed when there is no doubt as to the absence of triable issues.' [Andre v Pomeroy, 35 NY2d 361, 364; Phillips v Kantor & Co., 31 NY2d 307, 311.]" Martin v Briggs, 235 AD2d 192, 196.

Accordingly, the defendant's motion for summary judgment is denied.

December 21, 2000
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims