New York State Court of Claims

New York State Court of Claims

MORENO v. THE NEW YORK STATE THRUWAY AUTHORITY AND THE STATE OF NEW YORK, #2001-010-034, Claim No. 100698, Motion No. M-63434


Synopsis


Defendants' motion for summary judgment dismissing the claim is granted.

Case Information

UID:
2001-010-034
Claimant(s):
WILFREDO MORENO AND GERMILINA MORENO
Claimant short name:
MORENO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100698
Motion number(s):
M-63434
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
SCHEINE, FUSCO, BRANDENSTEIN & RADA
By: Salenger & SackMichael Schwartz, Esq.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New York
By: Burke, Lipton, Puleo & McCarthyRobert McCarthy, Esq.
Third-party defendant's attorney:

Signature date:
June 6, 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 defendants' motion for summary judgment dismissing the claim:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.......................1

Attorney's Opposing Affirmation and Exhibits.......................................................2

Attorney's Reply Affirmation and Exhibit...............................................................3

Claim No. 100698 arises out of an automobile accident that occurred on Sunday, October 12, 1997 on I-287 Eastbound, in the Town of Greenburgh. Richard Marans swerved from the right lane into the middle lane to avoid hitting a roll of concrete wire in the roadway and struck a car operated by Wilfredo Moreno (hereinafter claimant).[1] Claimant's car was then pushed into the left lane, striking a motorcyclist.

Claimant commenced an action against defendants, alleging negligent maintenance of the roadway. Specifically, claimant contends that, pursuant to contract with defendants, Halmar Builders of New York, Inc. ("Halmar") was engaged in the replacement of the I-287 bridges over the Saw Mill River Parkway and the Bronx River Parkway in Westchester County and that the roll of concrete wire came from Halmar. Defendants move for summary judgment dismissing the claim based upon the undisputed facts that the accident occurred on the Sunday afternoon of Columbus Day weekend and no work had been performed in the area since the first half of Friday's work day and that the accident occurred 1300 feet west of the project area (Defendants' Exs. G, H, I). Significantly, defendants have established that neither Halmar nor its subcontractors used concrete wire until two years after claimant's accident (Defendants' Exs. J, K, L). Thus, while 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), defendants have established entitlement to judgment as a matter of law dismissing the claim against them (see, Zuckerman v City of New York, 49 NY2d 557, 562). Additionally, it is well settled that, absent a showing of evidentiary facts that defendants either created or had actual or constructive notice of the dangerous condition, the claim must be dismissed (see, Maggi v Innovax Methods Group Co., 250 AD2d 576 [failure to establish that defendants either created or had notice of dangerous condition required dismissal of claim]).

Claimant opposes the motion arguing that "[t]he only issue is who is responsible for the wire upon the roadway" and that it is more likely than not that the wire came from Halmar/defendants (Claimant's Attorney's Supporting Affirmation, ¶3, ¶5). In support of this position, claimant relies upon Halmar's EBT testimony to establish that Halmar transported concrete wire "in and around Interstate 287 in October of '97" to its other projects (Claimant's Ex. B, p. 10). Indeed, the EBT testimony established that Halmar was involved in several other projects at that time, but when asked if Halmar used Interstate 287 to move materials, the response was, "[p]robably, I don't know" (Claimant's Ex. B, p. 11; see also, Claimant's Attorney's Affirmation, ¶ 7). Claimant also cites to the following portion of the Halmar EBT:
Q. abIf rebar were being utilized, would that have to be shipped down I-287 eastbound?
A. abMost likely.


(Claimant's Ex. B, p. 14). As noted by defendants' reply papers, Halmar's EBT testimony established that rebar is different from the concrete wire in issue (Defendants' Attorney's Reply Affirmation, ¶ 6, Defendants' Reply, Ex. A, p. 15). Thus, claimant has failed to establish that it is more likely than not that the concrete wire came from Halmar/defendants and claimant has not refuted defendants' showing of entitlement to judgment as a matter of law.

Claimant's proof is inconclusive and would require pure speculation to link defendants to the roll of concrete wire. The concrete wire in issue was found 1300 feet west of Halmar/defendants' project, two and a half days after Halmar had stopped working in that area and, over the course of the Columbus Day weekend, many motorists traversed I-287 (see, Blake v City of Albany, 48 NY2d 875 [defendant had ceased work in the area prior to plaintiff's accident and proof that defendant was responsible for roadway blockade which diverted plaintiff was speculative; therefore the case against defendant was properly dismissed]; Kogan v Fortunato & Sons, 220 AD2d 488 [summary judgment granted to defendants where facts alleged would require trier of fact to speculate as to whether defendant was responsible for condition or someone else who had access to the accident site]). Moreover, Halmar did not use concrete wire at that site until two years after claimant's accident and there was no proof that Halmar in fact transported concrete wire on I-287 prior to, or during the course of, the Columbus Day weekend. Thus, claimant's argument that Halmar used I-287 to transport materials to its other projects is untenable and claimant has failed to submit any competent evidence sufficient to raise a factual question precluding summary judgment to defendants (see, Balk v City of New York, 242 AD2d 645 [only conclusory and speculative allegations linked defendant to defective sidewalk and no competent evidence was submitted raising a factual question; accordingly defendant was granted summary judgment]).

Accordingly, defendants' motion for summary judgment dismissing the claim is GRANTED.


June 6, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] The claim of Germilina Moreno, claimant's wife, is derivative.