New York State Court of Claims

New York State Court of Claims

GIRARD v. THE STATE OF NEW YORK, #2002-015-278, Claim No. 103064, Motion No. M-65000


Claimant's second motion for summary judgment denied where proof offered failed to establish the driver's negligence and/or the vicarious liability of the defendant. Expert's affidavit contained legal conclusions rather than factual opinion based on reasonable engineering certainty.

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:
Capriano, Lichtman & Flach, LLPBy: Michael Skliar, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Frederick H. McGown, III, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for summary judgment pursuant to CPLR 3212 for an order determining the liability of the defendant for personal injuries sustained in a one-car motor vehicle accident is denied. This is claimant's second motion for summary judgment, the first was denied by decision and order of the Court dated April 4, 2001. The amended claim filed on October 4, 2000 seeks to recover $1,050,000.00 in damages for personal injuries sustained by claimant as a passenger in a fifteen passenger Ford van owned by the State University of New York (SUNY) at Oneonta and operated with the State's permission by Suliat Adelekan a SUNY Oneonta graduate serving as a resident advisor at a university sponsored Educational Opportunity Summer Program. Claimant, two advisors and ten other program participants were returning to SUNY in the van following a daytime outing to an outdoor water park located approximately two hours from the SUNY campus. The accident occurred on July 29, 2000 at approximately 1:20 p.m. on State Road 145 in the Town of Rensselaerville, Albany County. It was raining at the time of the accident.

Claimant moves for summary judgment seeking a determination of the defendant's vicarious liability pursuant to Vehicle and Traffic Law § 388 as owner of the subject vehicle. No active negligence against the State is alleged. The motion is supported by an affidavit of claimant's attorney; an affidavit of John A. Serth, Jr., P.E., a licensed professional engineer along with an unsworn report dated March 11, 2002 and such affiant's curriculum vitae; copies of the amended verified claim and verified answer; and a copy of a transcript of an examination before trial of the driver Suliat Adelekan[1].

The defendant opposed the motion by affirmation of defense counsel and the affidavit of George Ruotolo, a purported accident reconstructionist who holds an Associate Degree in Business Management and a Bachelor's Degree in Economics; along with a copy of such affiant's curriculum vitae and a published research note of the National Highway Traffic Safety Administration regarding the rollover propensity of fifteen passenger vans. The research note was dated April 2001, nine months after the accident.

Claimant's counsel submitted a reply affirmation dated May 13, 2002 addressed exclusively to the alleged inadequacy of the defendant's submissions in opposition to the motion.

To grant summary judgment, a Court must find that there are no material triable issues of fact. "To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor (CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). Once the movant establishes his or her prima facie entitlement to summary judgment, the burden shifts to the opposing party to come forward with admissible proof establishing the existence of a material issue of fact requiring a trial (Leek v McGlone, 162 AD2d 504). Should the moving party fail to make a prima facie showing of its entitlement to judgment as a matter of law, the motion will be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320).

As noted above, the instant motion is claimant's second attempt to obtain summary judgment on the issue of liability. "Recognizing that multiple motions for summary judgment are discouraged, it is well settled that where a party can show newly discovered evidence or sufficient cause, more than one motion is permissible within the same action" (Tuttle v McQuesten Co., 243 AD2d 930, 931). The Courts have been inclined to allow successive motions where the first motion was made prior to discovery and was denied on the ground that a factual issue existed which could be eliminated or resolved through later uncovering of the facts (see, Pough v Aegis Prop. Servs. Corp., 186 AD2d 52, 53; Freeze Right Refrig. & Air Conditioning Servs. v City of New York, 101 AD2d 175, 181).

Illustrative of the Court's disposition in this regard in McNeil v Wagner College, (246 AD2d 516), in which the Appellate Division, Second Department affirmed the trial court's consideration of a second motion for summary judgment. In that case the first motion was made prior to the completion of discovery. The Appellate Division found that consideration of the second summary judgment motion was appropriate since it was based, in part, upon deposition testimony developed during discovery held subsequent to the determination of the first motion. That is the course which will be followed here.

It is well established that negligence actions involving motor vehicle accidents (except rear end collisions) are rarely susceptible to summary judgment "because even when 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." (Andre v Pomeroy, 35 NY2d 361, 364; see also, Rennie v Barbarosa Transp., 151 AD2d 379). This is especially true in a case such as this where a driver is faced with what appears to have been an emergency situation allegedly caused at least in part by the hydroplaning of the vehicle (see Stanton v Ritz, 87 AD2d 735). A determination of negligence under such circumstances is rarely available on a motion for summary judgment.

The denial of the motion seems particularly appropriate here where claimant relies on the testimony of the driver who alleges that she recalls little about the accident and cannot recall specifically how fast she was traveling immediately prior thereto. Claimant further relies upon an expert opinion based upon an unsworn report. That opinion, fashioned as it is, does not offer a factual estimate to a degree of engineering certainty of the van's speed at the time of the accident but instead states a legal conclusion that the driver was operating the vehicle "at an excessive speed under the circumstances." Additionally, the claimant's expert opined in his affidavit "that the improper actions of the driver were a proximate cause of this accident" without delineating specifically what the purportedly improper actions were.

Neither the driver's deposition testimony nor the claimant's expert's affidavit viewed alone or together establish the driver's negligence and the defendant's vicarious liability as a matter of law.

Furthermore, the claimant on this motion failed to submit any proof that the claimant sustained a serious injury within the definition of Insurance Law § 5102 (d). While the Appellate Divisions are currently divided on the issue of whether a plaintiff must submit proof of a serious injury on a motion for summary judgment on the issue of liability, and the Third Department has not yet addressed the issue, this Court will follow the decision reached by the Second Department in the recent case of Zecca v Riccardelli, 293 AD2d 31, in which the Court at 34 said:
By holding that the issue of serious injury is 'necessarily' resolved in favor of the plaintiff even when no evidence of such injury is presented, the courts may be authorizing recovery for minor injuries, which is contrary to the purpose of the No-Fault Law as set forth above. It is the plaintiff's burden to establish that he or she has sustained a serious injury within the definition of Insurance Law § 5102 (d). Further, the court is charged with the duty of determining, as a threshold matter, whether the plaintiff has presented proof of such an injury. Accordingly, the court would be abdicating its duty by allowing a plaintiff to recover for minor injuries, merely because the defendant failed to, or chose not to, respond to a motion for summary judgment on liability. Lack of opposition to a motion for summary judgment on the issue of liability, be it negligent or purposeful, is not justification to relieve the plaintiff of his or her burden to submit adequate evidence of his or her injury.
Here, no proof of serious injury was offered and this failure further mandates the denial of the motion (cf. Maldonado v DePalo, 277 AD2d 21; see also, DePetres v Kaiser, 244 AD2d 851).

Finally, it is settled that where the movant fails to meet its initial burden on a motion for summary judgment the Court need not consider the adequacy of the defendant's opposition. If claimant in this case had successfully met her burden the defendant's submissions, which failed to even address the matters raised by claimant's expert, would have been inadequate to establish a material issue of fact. On this motion, however, such consideration was neither necessary nor appropriate.

Claimant's motion is denied and the non-bifurcated trial shall proceed as scheduled beginning September 23, 2002.

August 2, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 4, 2002;
  2. Affirmation of Michael Skliar dated April 4, 2002 with exhibits;
  3. Affidavit of John A. Serth, Jr., P.E., sworn to March 27, 2002 with exhibits;
  4. Affirmation of Frederick H. McGown, III dated May 8, 2002 with exhibit;
  5. Affidavit of George Ruotolo, sworn to May 8, 2002;
  6. Reply affirmation of Michael Skliar dated May 13, 2002.

[1]Claimant's bound papers also included a memorandum of law which was read by the Court but is not properly included in a listing of the papers considered. A memorandum of law should be submitted as a separate document not bound to the affidavits and other exhibits..