New York State Court of Claims

New York State Court of Claims

BOYNTON v. NEW YORK STATE THRUWAY AUTHORITY, #2001-015-174, Claim No. 100683, Motion Nos. M-63339, CM-63550


State's motion for summary judgment dismissing his personal injury claim arising from the presence of a domestic animal on the Thruway at night is denied. Claimant's cross-motion for summary judgment on issue of liability likewise denied for insufficient proof of liability as a matter of law. Claimant's cross-motion seeking limited additional discovery permitted after Court struck note of issue.

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):
Claimant's attorney:
Law Office of Michael J. McDermottBy: Michael J. McDermott, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 28, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's summary judgment motion pursuant to CPLR 3212 seeking an order dismissing the claim on the grounds that there are no issues of fact requiring a trial and that the non-liability of the defendant may be determined as a matter of law is denied. Claimants' cross-motion for summary judgment determining the State's liability in this negligence action as a matter of law is likewise denied. Claimants' alternative request for additional discovery, however, is granted on condition that such additional discovery by claimants' attorney be completed within 60 days of service upon him of a copy of this decision and order by the Clerk of the Court. The claim seeks to recover damages for personal injuries sustained in a motor vehicle accident which occurred on April 20, 1998 at approximately 10:15 p.m. on the New York State Thruway at or near mile post marker 246.5 in the County of Oneida. At that time and place claimant[1] was operating a tractor trailer for his employer United Parcel Service in an easterly direction when his vehicle struck a cow owned by Charles D. Lifson, a farmer who owned land adjacent to the Thruway at 6397 Lowell Road, Rome, New York, on which he operated a dairy farm. After striking and killing the cow claimant lost control of his vehicle which left the roadway and overturned in a ditch adjacent to the southern shoulder trapping claimant inside. Claimant allegedly sustained injuries including lacerations to his mouth, teeth fractures, trauma to the head, neck, face, shoulder, arms, hands, back, leg and feet as a result of the accident requiring hospitalization from April 20, 1998 to April 23, 1998 and rendering claimant disabled for a period of approximately six months.

Claimants commenced a companion action against the cow's owner in Supreme Court, Onondaga County (Index No. 00-5635). The status of that action is unknown.

In the instant claim it is alleged that the negligence of the New York State Thruway Authority consisted of failing to construct, inspect and maintain proper and adequate fencing and other barriers along the highway to prevent animals from entering the roadway. Although not set forth in the claim (Defendant's Exhibit A) the bill of particulars dated September 25, 2000 (Exhibit F) or the supplemental bill of particulars dated October 17, 2000 (Exhibit G), claimants' attorney at paragraph 8 of his affirmation in support of his cross-motion for summary judgment attempts to raise a new theory of negligence based upon the Thruway Authority's failure to reassess the need for fencing at the location of the accident site in light of alleged repeated requests for fencing from farmers in the area. Such an attempt to assert a new cause of action without benefit of a proper motion seeking leave of Court to amend the claim pursuant to CPLR 3025 (b) cannot be countenanced on this cross-motion (Forester v Golub Corp., 267 AD2d 526; A & J Produce Corp. v De Palo Indus., 215 AD2d 317 ).

The Thruway Authority is subject to the same duty imposed upon the State relative to maintenance of the roadways under its control (see, Gomez v New York State Thruway Auth., 73 NY2d 724; Czirer v New York State Thruway Auth., 22 Misc 2d 678, revd on other grounds). While not an insurer of the safety of motorists (Hearn v State of New York, 157 AD2d 883, lv denied 75 NY2d 710), the State is required to maintain its highways in a reasonably safe condition (Hough v State of New York, 203 AD2d 736). The duty is non-delegable and liability will attach where the State has actual or constructive notice of a dangerous condition and fails to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767). Reasonable care is required not only as to conditions proximate to the road surface and shoulders but includes areas or conditions adjacent to the highway which could reasonably be expected to constitute a danger to highway users (Rinaldi v State of New York, 49 AD2d 361). It is important to note, however, that the mere happening of an accident does not create a presumption of liability on the part of the State (Johnson v State of New York, 265 AD2d 652). With regard to notice, constructive notice may be established either through proof of prior similar accidents or by showing that a dangerous condition was visible and apparent and existed for a sufficient period of time that it should, in the exercise of reasonable care, have been discovered and remedied (Mickle v New York State Thruway Auth., 182 Misc 2d 967). Proof of prior accidents is admissible to establish the existence of a dangerous condition where the "physical conditions and circumstances of the other accidents were substantially similar to the one at issue" (Malossi v State of New York, 255 AD2d 807).

The defendant's motion was supported by the affirmation of Assistant Attorney General Joel L. Marmelstein who is without direct knowledge of the facts; copies of the pleadings; a copy of a tax map showing properties owned by Charles Lifson on the date of the accident and the location of the properties relative to the Thruway (said map was referred to by Lifson at his February 12, 2001 examination before trial); a transcript of Lifson's examination before trial; a copy of what is purported to be a radio log maintained by the Thruway Authority for April 20, 1998; the bill of particulars and supplemental bill of particulars; what appears to be a computer generated compilation of accident data relative to Thruway milepost marker 246 for the period 12/13/92 through 4/20/98 including the alleged causes of each accident reported; a copy of an unauthenticated MV-104A accident report for an accident dated 4/12/97 (goose in road); a copy of an unauthenticated MV-104A accident report for an accident dated 8/29/97 (cows in roadway); and a copy of a Thruway Authority inter-office memorandum dated March 18, 1991 whose subject is identified as "Fencing Policy."

It is well established that a motion for summary judgment must be supported by proof in admissible form which sufficiently demonstrates the absence of any material issue of fact and provides a prima facie showing of the moving party's entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). "The burden shifts to the opponent to come forward with appropriate evidentiary material establishing the existence of a triable issue of fact if, and only if, the proponent of the motion for summary judgment establishes a prima facie entitlement through the submission of appropriate and sufficient evidence" (Toomey v Adirondack Surgical Assocs., 280 AD2d 754).

Based upon the above listed submissions the defendant has moved for summary judgment alleging that the Thruway Authority has no duty to fence the entire Thruway to prevent domestic animals from entering thereon and that claimant cannot demonstrate that the defendant had actual or constructive notice of the condition which proximately caused the claimant's accident. Defendant's attorney has attempted to demonstrate the Authority's lack of duty to fence the Thruway through the submission of a Thruway Authority inter-office memorandum dated March 18, 1991 and by reference to admissions made by Charles Lifson at his EBT. The inter-office memorandum, which was not appended to an affidavit of any officer or employee of the Thruway Authority attesting to its authenticity or otherwise explaining its contents, provides on its face that its adoption as "Authority policy" was contingent upon subsequent consideration and approval by the Engineering and Maintenance Committee. Defendant offered no proof on the motion that a committee meeting occurred or that the memorandum was adopted as Thruway Authority policy and, as a result, cannot be viewed by the Court on this motion as evidence of a policy shielding the defendant from liability for the subject accident. So too, the admission made by Lifson at his EBT that his predecessor in interest to the realty bordering the Thruway entered into a written agreement with the Authority to erect and maintain unspecified borderline fences in perpetuity, without any additional evidence being offered to support this assertion, does not constitute sufficient evidence in admissible form to entitle the defendant to judgment as a matter of law.

The materials submitted by the defendant with regard to the issue of notice are likewise not in admissible form and are, therefore, incapable of supporting the defendant's motion. The purported radio log for April 20, 1998 (Exhibit E) is neither certified, authenticated nor offered as an attachment to an affidavit of someone with direct knowledge of its purpose, origin or authenticity. The same may also be said of the "accident history" which defendant attached to his motion papers as Exhibit H. That document, which is only briefly referred to in paragraph 7 of counsel's supporting affirmation, was offered with no explanation as to who prepared it, for what purpose it was prepared and whether the information contained therein might be deemed to be reliable. While some of its entries are obvious, other entries are not and no key to understanding the document was provided. The unauthenticated MV-104A accident reports apparently offered in an attempt to demonstrate that the facts of the subject accident are different from those of prior accidents are likewise inadmissible and, therefore, are not sufficient to support the defendant's motion. Defendant's counsel in his affirmation also referenced the examination before trial testimony of Charles Korthas, a Thruway Maintenance Supervisor, but neglected to provide a copy of the transcript. Viewed in its entirety the defendant's evidence offered on the motion fails to meet the standard of proof required to support a motion for summary judgment and the defendant's motion must, therefore, be denied.

The claimants on the cross-motion seek a determination of the defendant's liability as a matter of law based upon an alleged but otherwise unspecified obligation on its part to fence the entire border of the highway.[2] Claimants also allege that the Authority had both actual and constructive notice of a dangerous condition, the absence of a fence in a wooded area purportedly near the accident scene but whose exact location is not identified, which allegedly allowed domestic animals from nearby farms access to the Thruway. The Court finds absolutely no support in this record for the claimants' allegation that the defendant had actual knowledge of the condition but finds that the claimants have met the minimal showing required to raise a question of fact as to whether constructive knowledge of a dangerous condition may be inferred from the existence of prior accidents involving domestic animals at or near this particular site (Malossi v State of New York, 255 AD2d 807, supra). The proof, however, will not support the granting of judgment on that issue.

Claimants' attorney relies upon much of the same unauthenticated and inadmissible documentation offered in support of the defendant's motion including the March 18, 1991 inter-office memorandum; unauthenticated accident history; and copies of MV-104A accident reports. Although the EBT transcripts of Charles Korthas, Charles Lifson and both of the named claimants offered on the cross-motion are in admissible form the testimony contained therein does not establish the Thruway Authority's actual or constructive notice of a dangerous condition giving rise to the accident or otherwise establish the defendant's liability as a matter of law.

Although otherwise rife with hearsay, the affidavit of Chris Babcock relates his observations at the scene of the August 29, 1997 accident involving cows upon the highway and states that as part of his full-time employment as a road service attendant "I was called out to the expanse of highway from mile marker 245 to 247 eastbound by the Thruway Authority dispatcher on three or four occasions for cows on the highway" between June 1, 1996 to December 31, 1997. While Mr. Babcock's testimony may lend potential support to the claimants' position that the defendant had constructive notice of a dangerous, recurring condition, the proof is not sufficient to demonstrate any similarity between those instances and the circumstances giving rise to this claim. The only evidence tending to explain how the Lifson cow got onto the Thruway that night is the conjecture of Charles Lifson that the cow entered the Thruway through unfenced woods on his property. Even if such speculation on Lifson's part were credited as true there is no evidence here which demonstrates that any of the prior incidents involved cows or other domestic animals which accessed the Thruway in the same manner thereby constituting constructive notice. There is, therefore, a material issue of fact as to whether or not the defendant had constructive notice of a dangerous condition giving rise to the accident. The presence of such an issue precludes summary judgment for the claimants.

The Court is, however, persuaded by the Babcock affidavit to grant the claimants' request for further discovery of the Thruway Authority dispatcher's logs even though a note of issue has been filed. Accordingly, the note of issue is struck and claimants shall have such limited additional discovery provided it is conducted and completed within 60 days of service of a copy of this decision and order upon the claimants' attorney by the Clerk of the Court. A new note of issue shall be filed within 30 days thereafter. The trial of this matter which was scheduled to begin on October 9, 2001 in Utica, New York, is hereby adjourned to a date to be determined at a conference to be held following the filing of a new note of issue.

August 28, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated March 27, 2001;
  2. Affirmation of Joel L. Marmelstein dated March 27, 2001 with exhibits;
  3. Notice of cross-motion dated May 24, 2001;
  1. Affirmation of Michael J. McDermott dated May 24, 2001 with exhibits;
  2. Affidavit of Chris Babcock sworn to May 24, 2001 (Exhibit I to Michael J. McDermott's affirmation);
  3. Affirmation of Joel L. Marmelstein dated June 11, 2001;
  4. Second Affirmation of Michael J. McDermott dated June 19, 2001, with exhibit.

[1]Claimant's wife filed a derivative claim seeking damages for loss of her husband's services and consortium but unless otherwise noted references to claimant in the singular refer to Mark Boynton
[2]In this regard see, Young v New York State Thruway Auth., 76 AD2d 834; Kinne v State of New York, 8 AD2d 903.