New York State Court of Claims

New York State Court of Claims

BLISS v. THE STATE OF NEW YORK, #2001-010-007, Claim No. 96039, Motion No. CM-58297


Synopsis


Claimant's cross-motion seeking summary judgment is denied as there remain an issue of fact which must await resolution at trial.

Case Information

UID:
2001-010-007
Claimant(s):
JOAN M. BLISS, as Executor of the Estate of GEORGE L. BLISS, JR., and JOAN M. BLISS, Individually
Claimant short name:
BLISS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96039
Motion number(s):
CM-58297
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
PACE AND PACE, L.L.P.By: Alan B. Sparer, Esq.
Defendant's attorney:
HON. ELIOT SPITZERAttorney General for the State of New York
Third-party defendant's attorney:

Signature date:
January 5, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimant's cross-motion seeking summary judgment and dismissal of defendants' affirmative defenses that George L. Bliss, Jr. ("Bliss") was contributorily negligent in causing the accident and did not use a seat belt:
Notice of Cross-Motion, Attorney's Supporting Affirmation and Exhibits, Memorandum of Law...............................................................................................1

Attorney's Reply Affirmation and Exhibit...............................................................2

Attorney's Rebuttal Affirmation and Memorandum of Law....................................3

Upon remmitur from the Court of Appeals by its decision dated November 21, 2000, claimant's cross-motion seeking dismissal of defendant's affirmative defense that Bliss was not wearing a seatbelt shall be decided by this Court on the original papers submitted by the parties.[1]

In support of this cross-motion, claimant principally relies upon Bliss' supporting affidavit (Ex. MM, ¶ 17) submitted with the cross-motion and Bliss' deposition testimony (Ex. JJ, p. 12) where he stated that, after the accident, he released his seatbelt in an effort to exit his truck. Claimant also relies upon the deposition testimony of Florence Huth (Ex. K, p. 37), and Dean Kennedy (Ex. T, p.10), the New York State Thruway Authority employees who investigated the accident and stated that they did not notice if Bliss had been wearing a seatbelt. Additionally, Claimant relies upon the deposition testimony of Trooper Hector Fernandez who stated that he did not recall if Bliss had been wearing a seatbelt (Ex. FF, p. 37).

To prevail on a motion for summary judgment, the moving party must establish its cause of action or defense sufficiently to warrant a court directing judgment in its favor as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue (Andre v Pomeroy, 35 NY2d 361, 364). The Court of Appeals has repeatedly cautioned, "even in those negligence cases in which ‘the facts are conceded there is often a question as to whether the defendant or the plaintiff acted reasonably under the circumstances. This can rarely be decided as a matter of law'" (Ugarriza v Schmieder, 46 NY2d 471, 475 quoting Andre v Pomeroy, supra at 364; see, Davis v Federated Dept. Stores, 227 AD2d 514).

Bliss' self-serving affidavit and deposition testimony are insufficient to establish entitlement to judgment as a matter of law and the deposition testimony of the other witnesses does not carry much weight because they merely stated that they had no knowledge of whether Bliss had been wearing a seatbelt. Accordingly, the Court DENIES claimant's application and finds an issue of fact which must await resolution at trial.

It is further ordered that this matter is scheduled for trial on the issue of liability in White Plains before Judge Terry Jane Ruderman on Monday, July 23, 2001, at 9:30 a.m. and a trial preparation conference shall be held on May 9, 2001 at 10:30 a.m.


January 5, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]
Claimant has withdrawn that branch of her cross-motion regarding the issue of any contributory negligence attributable to Bliss and has agreed to have this issue decided by the Court at trial.