New York State Court of Claims

New York State Court of Claims

V. STATE OF NEW YORK, #2001-005-548, Claim No. 98993, Motion No. M-62784


Synopsis


The Second Department's affirmance of summary judgment for the defendants in the Supreme Court action (294 AD2d 543), is res judicata as to proximate cause and the claim here must be dismissed.

Case Information

UID:
2001-005-548
Claimant(s):
IN THE MATTER OF THE CLAIM OF ERICA LEGGIO BY BENNY A. LEGGIO, HER FATHER AND NATURAL GUARDIAN
Claimant short name:

Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98993
Motion number(s):
M-62784
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Lite & Russell, Esqs.By: Frank S. Russell, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Thomas M. Bona, P.C.By: Paul E. Asfendis, Esq.
Third-party defendant's attorney:

Signature date:
October 8, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 15, were read on motion by Defendant for summary judgment dismissing the claim:

1, 2 Notice of Motion, Affidavit and Exhibits Annexed

3, 4, 5, 6, Affirmation in Opposition, Affidavits and Exhibits Annexed
  1. Reply Memorandum and Exhibits Attached
  2. Claimant's Affirmation dated May 9, 2001 and Exhibits Annexed
  3. Defendant's Letter dated June 27, 2002
  4. Order of Emerson, J., Suffolk County Supreme Court dated March 26, 2001
11, 12, 13 Court's Letters dated April 12, 2001, June 4, 2001, and June 6, 2001

14, 15 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is granted.

This is the Defendant's motion for summary judgment dismissing the claim herein. The claim involves serious injuries sustained by Erica Leggio, Claimant's daughter, on October 3, 1995.

In a related proceeding, albeit against other defendants in Supreme Court, Suffolk County, the Hon. Elizabeth H. Emerson issued an order dated March 26, 2001, granting summary judgment to all of those defendants as "the record contains no evidence that the tree or pole was a proximate cause of the accident." The court also found that Claimant's expert's conclusions regarding proximate cause, to wit, that the tree and pole were substantial factors in the happening of the accident, were speculative and insufficient to raise a triable issue of fact.

As a result thereof, I wrote to the parties inviting them to submit supplemental papers to address the impact of Justice Emerson's order, and any appeal thereof, on the pending motion. They did so, and in June 2001, I adjourned the instant motion, sine die, pending the ruling of the Appellate Division. On May 28, 2002, the Second Department affirmed the trial court's dismissal (294 AD2d 543), holding, inter alia, that the plaintiff therein (Claimant here) had not raised a triable issue of fact with respect to proximate cause.

Claimant's counsel, in his May 9, 2001 affirmation responding to my invitation with respect to deciding the instant motion, suggested that I either render a decision regardless of Justice Emerson's ruling, or adjourn pending the outcome of the appeal. Counsel noted that "Certainly, the Appellate Court's ruling would be binding upon both the Supreme Court and the Court of Claims." He is, of course, correct, and now the Second Department has affirmed the trial court, affirming that the record was devoid of evidence showing that the weeping willow tree and/or the utility pole, or any purported obstructions on the roadway, or any purported negligent maintenance of the roadway was a proximate cause of the accident. In Defendant's letter dated June 27, 2002, supplying the Court with a copy of the Second Department's ruling, it reiterated its argument, based upon the doctrine of res judicata, that the decision and order of the Second Department is binding. Claimant has not disputed or challenged that contention, and whether based upon collateral estoppel principles (see, Ryan v NY Tel. Co., 62 NY2d 494) or the broader doctrine of res judicata, there is no basis upon which the State's purported negligence could be a proximate cause of the accident.

Accordingly, the Defendant's motion for summary judgment must be, and hereby is, granted, and the claim is dismissed.


October 8, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims