New York State Court of Claims

New York State Court of Claims

BOSWELL v. THE STATE OF NEW YORK, #2001-007-084, Claim No. 99342, Motion No. M-62642


A member of the State Police drove through a stop sign and collided with claimant's motorcycle. Claimant's motion for summary judgment on the issue of liability granted.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

John L. Bell
Claimant's attorney:
Martin, Harding & Mazzotti, LLP (Elizabeth A. Graziane, Esq., of Counsel)
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Dennis M. Acton, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
February 13, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application for an order granting partial summary judgment on the issue of liability. The return date of the motion was December 13, 2000.[1] The following papers were read and considered by the court:

Notice of Motion, Affirmation of Elizabeth A.

Graziane, Esq., Annexed Exhibits, Memorandum
of Law 1, 2, 3, 4

Memorandum of Law in Opposition 5

Reply of Elizabeth A. Graziane, Esq. 6

Letter of Dennis M. Acton, Esq., dated Dec. 4, 2000 7

Filed Papers: Claim, Answer 8, 9

On September 18, 1997, at approximately 9:20 a.m., claimant was driving his father's 1980 Harley-Davidson motorcycle north on Oak Street in the City of Plattsburgh, Clinton County. Oak Street is a one-way street with two lanes for traffic and claimant was operating the motorcycle in the right (east) lane. Riley Avenue intersects Oak Street and a stop sign on Riley Avenue requires motorist to stop and yield the right-of-way to traffic on Oak Street. John Welch, an employee of defendant, was operating a 1995 Chevrolet owned by defendant in an easterly direction on Riley Avenue. Although Mr. Welch was on duty as a State Police investigator, he was not responding to any emergency situation. Mr. Welch failed to observe claimant and pulled onto Oak Street, where the front of his car struck claimant's motorcycle. Claimant sustained various alleged injuries and subsequently filed and served the instant claim. Disclosure has been completed, a note of issue filed and claimant now seeks summary judgment on the issue of liability.

Initially, the court will briefly address claimant's failure to comply with CPLR 3212(a), which provides that a motion for summary judgment must be made within 120 days of filing the note of issue unless excused by the court. The note of issue was filed on Monday, July 3, 2000. The affidavit of service annexed to the motion reflects that the motion papers were mailed on Wednesday, November 1, 2000. November 1 is 121 days after July 3 and, thus, the motion was one day late. The court, however, retains discretion to consider motions for summary judgment that fail to comply strictly with CPLR 3212(a) (Gonzalez v 98 Mag Leasing Corp., 95 NY2d 124; Rossi v Arnot Ogden Med. Ctr., 252 AD2d 778). In light of the fact that the motion was only one day late and a trial is not scheduled to commence until May 2001, the court, in the exercise of its discretion, will consider the merits of the motion (see, Machac v Anderson, 261 AD2d 811).

Summary judgment is frequently characterized as a "drastic remedy," which should be employed only when it is clear no triable issues exist (Andre v Pomeroy, 35 NY2d 361; Lebanon Val. Landscaping v Town of Moriah, 258 AD2d 732). The proponent of the motion bears the threshold burden of tendering sufficient evidence to eliminate any material issues of fact and establishing the propriety of judgment as a matter of law (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Tiano v Lane, 260 AD2d 908). If the movant meets the threshold burden, the nonmoving party must step forward with evidence demonstrating a triable issue of fact to defeat the motion (Moran v Technical Bldg. Servs., 258 AD2d 697; Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916). The proof submitted to raise a triable issue generally must be in admissible form (Vermette v Kenworth Truck Co., 68 NY2d 714), particularly where disclosure has been completed and the party opposing the motion fails to offer any explanation for failing to meet such requirement (see, Zuckerman v City of New York, 49 NY2d 557, 562; Amedure v Standard Furniture Co., 125 AD2d 170).

There is abundant appellate precedent establishing that summary judgment is appropriate in a situation where one driver has clearly operated a vehicle in violation of the Vehicle and Traffic Law, such as pulling through a stop sign into the path of a vehicle that has the right-of-way (see, e.g., Vogel v Gilbo, AD2d , 715 NYS2d 455; Le Claire v Pratt, 270 AD2d 612; Matt v Tricil [N.Y.], 260 AD2d 811; Rumanov v Greenblatt, 251 AD2d 566, lv denied 92 NY2d 946; Bolta v Lohan, 242 AD2d 356). Once the proponent of summary judgment has established that the other party failed to yield the right-of-way in the face of a stop sign, summary judgment will not be defeated by interjecting comparative negligence based merely upon speculation or conjecture about the speed of the claimant's vehicle (Vogel v Gilbo, supra; Matt v Tricil [N.Y.], supra) or the opportunity for evasive action (Le Claire v Pratt, supra; Miesing v Whinnery, 233 AD2d 551).

Here, it is undisputed that Mr. Welch pulled through a stop sign and collided with the motorcycle operated by claimant, who had the right-of-way. Indeed, Mr. Welch, to his great credit and that of the State Police, candidly acknowledged at his examination before trial that he told claimant immediately following the accident that "it was my fault" and he stated, "I should have seen him coming and not pulled out in the intersection" (Exhibit F annexed to Graziane Affirmation, at 31). Claimant has met his threshold burden of establishing entitlement to judgment as a matter of law.

In an effort to raise factual issues, defendant argues several points. Defendant proclaims that an issue of fact exists regarding claimant's speed, which implicates comparative negligence. The papers before the court, however, reflect that the accident was thoroughly investigated and that numerous members of the City of Plattsburgh police and State police responded to the scene. Yet, other than Mr. Welch's speculation that he thinks claimant was going over the speed limit, no other evidence has been offered indicating that claimant's speed was a significant factor in the accident. Claimant maintained that he was traveling within the posted speed limit. The court is not convinced that defendant has offered sufficient proof on the issue of claimant's speed to defeat summary judgment.

Similarly unavailing is defendant's argument that claimant should have taken evasive action. Defendant's argument in such regard is based on conjecture. Claimant's testimony reflects that he did not have ample time to avoid the accident and defendant has failed to raise a substantial issue of fact indicating otherwise (see, Le Claire v Pratt, supra; Miesing v Whinnery, supra).

Defendant also asserts that the culpable conduct of a third party may be implicated because a purportedly illegally parked vehicle obstructed Mr. Welch's vision. Interestingly, defendant asserted such argument as a second affirmative defense in its answer. When asked to particularize the defense, defendant withdrew it in its verified bill of particular dated June 30, 2000. Defendant has offered insufficient evidence to convince the court that the previously withdrawn argument can now be successfully resurrected and serve as a basis to defeat claimant's motion.

It is

ORDERED that claimant's motion is granted, and the Chief Clerk of the Court of Claims is directed to enter interlocutory judgment in favor of claimant against defendant on the issue of liability; and it is further

ORDERED that the trial currently scheduled to commence on May 1, 2001 will be limited to the issues of serious injury (Insurance Law § 5102) and damages.

February 13, 2001
Plattsburgh, New York

Judge of the Court of Claims

[1] The court conducted a conference with the parties on January 16, 2001, in which, inter alia, issues implicated in the current motion were addressed.