New York State Court of Claims

New York State Court of Claims

STACY v. THE STATE OF NEW YORK, #2001-007-108, Claim No. 101637, Motion No. M-63014


Claimant, a pedestrian, was struck while in a crosswalk by a vehicle operated by a State Trooper. She moved for partial summary judgment on the issue of liability. Motion denied.

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:
POISSANT & NICHOLS, P.C. (Stephen A. Vanier, Esq., of Counsel)
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL (Michael W. Friedman, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
April 18, 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 March 21, 2001. The following papers were read and considered by the court:

Notice of Motion, Affidavit of Claimant, Affidavit
of Stephen A. Vanier, Esq., Annexed Exhibits 1, 2, 3, 4

Affirmation in Opposition of Michael W. Friedman,
Esq., Annexed Exhibits 5, 6

Filed Papers: Claim, Answer 7, 8

The current claim involves an accident in which a motor vehicle owned by defendant and operated by a State Trooper struck claimant while she was walking in a crosswalk in the Village of Malone, Franklin County. Claimant argues that since she was in a crosswalk she had the right-of-way (Vehicle and Traffic Law § 1151), she is therefore entitled to summary judgment on the issue of liability.

Summary judgment is a drastic remedy that may be employed only when it is clear that no triable issue exists (Andre v Pomeroy, 35 NY2d 361, 364; 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; Encotech v Cotton Fact, AD2d , 720 NYS2d 267). 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 (Toomey v Adirondack Surgical Assocs., AD2d , 720 NYS2d 229; Moran v Technical Bldg. Servs., 258 AD2d 697). Significantly, the court must view the evidence presented in the light most favorable to the party opposing summary judgment (Barker v Kallash, 63 NY2d 19, 23; Walton v Albany Comm. Dev. Agency, 279 AD2d 93).

Viewing the evidence most favorably to defendant reveals that at approximately 6:45 p.m. on the evening of November 10, 1999, State Trooper Joseph Tatro was traveling west on State Route 11 near the intersection with Webster Street in the Village of Malone. It was raining lightly. In the relevant area, Route 11 was a four-lane highway with two lanes of traffic flowing in each direction. The speed limit was 30 miles per hour. A marked crosswalk extended from Webster Street across Route 11. Claimant was walking north in the crosswalk. There were no traffic-control signals at the intersection.

Trooper Tatro was proceeding behind two other vehicles, all of which were in the westbound lane located nearest the center line of the highway. As the vehicles approached the intersection with Webster Street, the front vehicle signaled and turned left, leaving Route 11 and proceeded south onto Webster Street. Trooper Tatro observed the brake lights of the second vehicle, a truck, and thus moved to his right into the lane nearest the curb since he planned to proceed straight on Route 11. Immediately before reaching the crosswalk, he observed claimant step beyond the front of the truck and continue into his lane of traffic. The trooper testified at his examination before trial that he slammed on his brakes but was unable to avoid striking claimant.

The driver of the truck gave a sworn statement on the evening of the incident in which he related, among other things, that claimant had on dark clothes and that she did not look toward any westbound traffic before walking into the path of the trooper's vehicle.[1] Trooper Tatro testified that he was going less than 30 miles per hour when he entered the intersection. The investigation of the incident conducted by the State Police found no evidence of excessive speed or improper lane usage by Trooper Tatro.

A pedestrian crossing a roadway within a crosswalk at a point where traffic-control signals are not in place has the right-of-way and motor vehicles must yield to the pedestrian (Vehicle and Traffic Law § 1151[a]; PJI 2:75; 8B NY Jur 2d, Automobiles § 981). The fact that a motorist strikes a pedestrian in a walkway, however, does not necessarily establish total liability of the driver as a matter of law (see, e.g., Gianniosis v LID Mgt. & Finishing Serv., 194 AD2d 413; Thoma v Ronai, 189 AD2d 635, affd 82 NY2d 736; Schmidt v Flickinger Co., 88 AD2d 1068, appeal withdrawn 58 NY2d 655). The requirement of a pedestrian to exercise reasonable care by looking for oncoming traffic was set forth by Judge Cardozo in Knapp v Barrett (216 NY 226) as follows:
"A wayfarer is not at liberty to close his eyes in crossing a city street. His duty is to use his eyes, and thus protect himself from danger. * * *

"The law does not say how often he must look, or precisely how far, or when or from where. If, for example, he looks as he starts to cross, and the way seems clear, he is not bound as a matter of law to look again. The law does not even say that because he sees a wagon approaching, he must stop till it has passed. He may go forward unless it is close upon him; and whether he is negligent in going forward, will be a question for the jury. If he has used his eyes, and has miscalculated the danger, he may still be free from fault. * * *

"But it is a very different thing to say that he is not bound to look at all." (Id., at 230 [citations omitted].)

More recently, the Court of Appeals upheld the denial of summary judgment to a plaintiff struck in a crosswalk, stating:
"[Plaintiff] may have been negligent in failing to look to her left while crossing the intersection. Plaintiff's concession that she did not observe the vehicle that struck her raises a factual question of her reasonable care" (Thoma v Ronai, 82 NY2d 736, 737, supra).

In Gianniosis v LID Mgt. & Finishing Serv. (supra), the Appellate Division upheld a jury verdict in favor of a motorist who hit pedestrians in an unmarked crosswalk,[2] noting:
"[A] reasonable jury could find that defendants were not negligent in colliding with plaintiffs who were crossing a street * * * on a snowy and rainy night, in dark clothing * * * when it was shown that defendant driver was proceeding at 10 to 15 miles per hour and due to the above-described conditions, did not see plaintiffs prior to coming in contact with them" (Id., at 413).

Here, there is evidence before the court indicating that Trooper Tatro was traveling at a rate of speed below the speed limit of 30 miles per hour. There is also evidence that claimant, clad in dark clothes on a rainy evening, walked into the path of the troop car on Route 11 without ever looking for westbound traffic. Such evidence gives rise to sufficient factual issues to preclude finding defendant totally responsible for the accident. Claimant's motion for summary judgment on the issue of liability must thus be denied.

It is

ORDERED that claimant's motion is denied.

April 18, 2001
Plattsburgh, New York

Judge of the Court of Claims

[1] In a statement given approximately one month after the accident, the driver of the truck sets forth information supportive to claimant's case. As previously indicated, however, on a motion for summary judgment the evidence is construed most favorably to the opponent of the motion.
[2] The right-of-way afforded to a pedestrian by Vehicle and Traffic Law § 1151 attaches when the pedestrian is in a "crosswalk," a term statutorily defined to include both marked and unmarked crosswalks (Vehicle and Traffic Law § 110; see, Kochloffel v Giordano, 99 AD2d 798).