New York State Court of Claims

New York State Court of Claims

HOFFMAN v. STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTHORITY, #2002-018-173, Claim No. 104013, Motion No. M-65443


Synopsis


Claimants' motion on the issues of liability and serious injury granted.

Case Information

UID:
2002-018-173
Claimant(s):
NEIL F. HOFFMAN and SALLY A. HOFFMAN, Individually and as Husband and Wife
Claimant short name:
HOFFMAN
Footnote (claimant name) :

Defendant(s):
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):
104013
Motion number(s):
M-65443
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
PERLA & PERLA, LLPBy: JEFFREY A. PERLA, ESQUIRE
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERAL
By: ROGER B. WILLIAMS, ESQUIRE Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 26, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimants bring this motion seeking partial summary judgment on the issues of liability and serious injury. Defendant opposes the motion.

In support of the motion, claimants have attached portions of the deposition testimony of Francis M. Page, a New York State Thruway Authority employee; Neil F. Hoffman, claimant; New York State Trooper Susan Marie Kasniak, the officer who prepared the accident report; and Craig Deans, Assistant Traffic Supervisor for the New York State Thruway Authority who investigated the accident. Claimant also submitted the affidavit of Neil F. Hoffman, the affidavit of his attorney, a copy of the State Police accident report, handwritten statement of Francis Page, pictures of the accident scene with the photo log prepared by Craig Deans, and the Interoffice Memorandum from Craig Deans after he had investigated the accident (Exhibits A - D attached to Perla Affidavit). From the various documents submitted, there appears to this Court to be no factual issues to be determined at trial regarding this accident.

The undisputed facts support the following: On June 4, 1999, claimant, Neil F. Hoffman, left Orchard Park in the early morning to deliver a Saturn vehicle to a Mohawk Valley Saturn Dealer. At approximately 2:00 p.m., that day claimant was traveling west on the New York State Thruway driving another Saturn vehicle to be delivered back to Orchard Park. At that time claimant approached a van, approximately one-half to one-quarter mile ahead of him which was traveling more slowly than claimant. Claimant turned on his directional light and moved into the passing lane. As claimant began to pass the van, with his vehicle's front bumper about at the point of the van's back tire, the van began to move into the passing lane. To try to avoid a collision, claimant moved over toward the median, but when the van entered into the passing lane it hit claimant's vehicle causing it to leave the roadway, strike the median, roll over, finally coming to rest upright. Claimant maintains that there is nothing that he could have done to avoid the collision because it happened so suddenly, and despite his efforts to veer further to the left, there was no place for him to go once the van entered into his lane. The accident occurred approximately .7 of a mile east of Exit 36 in the Town of Salina, County of Onondaga. Francis Page, an employee of the New York State Thruway Authority, was driving the Plymouth van, bearing New York State license plate number TWY834, involved in this accident. The van was owned by the New York State Thruway Authority. Mr. Page was in the driving lane traveling at approximately 65 miles per hour, approaching a vehicle. He looked in his rear-view and side-view mirrors, he did not see anything so he turned on his directional signal and began to change lanes. He then looked in his mirror again and saw a cloud of dust, a car go up and spin, come back and hit his van. Mr. Page then slowed down and pulled over to the right-hand side of the road and notified the dispatcher. The claimant's vehicle was in Mr. Page's blind spot and he did not see claimant's vehicle before he changed lanes. Claimant has established a prima facie case of negligence.

Vehicle and Traffic Law §1122(b) provides in pertinent part:

"...the driver of an overtaken vehicle shall give way
to the right in favor of the overtaking vehicle on
audible signal and shall not increase the speed of
his vehicle until completely passed by the overtaking
vehicle."

Defendants, by the assistant attorney general, attempt to raise issue with whether claimant was obligated by the terms of that section of the Vehicle and Traffic law to "give signal" to Mr. Page that he was passing his van. Here, the undisputed facts clearly establish that claimant's vehicle was overtaking Mr. Page's vehicle when it was struck by the Page vehicle and claimant attempted to avoid the collision. The only allegation that claimant should have used his horn is in the affirmation of the assistant attorney general, which is not probative on the issue because he has no personal knowledge of the facts. Claimant's position is that there was nothing further he could have done to avoid the accident, and there is no assertion that he should have or could have sounded his horn in time to make a difference. There is nothing in evidentiary form to indicate that claimant engaged in any negligent conduct contributing to this accident by not sounding his horn (Compare, Penvose v Nichele, 55 AD2d 1052; Van Loo v Tompkins County, 36 AD2d 998). Although summary judgment is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law, the facts presented by claimant are undisputed (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).

On the issue of serious injury, claimant has come forward with sufficient proof to establish that claimant suffered a serious injury as defined in §5102(d) of the Insurance Law. Claimant has submitted the affidavit of his treating physician, copies of the reports from his examinations of claimant, and claimant's affidavit to support a finding that claimant suffered injury which caused him to be totally disabled and unable to perform his ususal and customary daily activities, including his employment, for more than 90 days during the first 180 days immediately following the accident. Defendants have come forward with nothing to dispute claimant's evidentiary proof of serious injury.

Accordingly, claimant's motion is GRANTED. The defendant, New York State Thruway Authority is liable for claimant's injuries as a result of the accident that occurred on June 4, 1999, and those injuries meet the definition of serious injury in Insurance Law §5102(d). In reviewing the record, there are no allegations of liability against the State of New York as defendant asserts and claimant does not dispute; as a result, the Court will grant summary judgment dismissing the claim as against the defendant, State of New York. The trial that was scheduled to commence on November 7, 2002, on the issue of damages is hereby adjourned. The parties will be notified of a conference date to set a new trial date on the issue of damages.

September 26, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion..........................................................................................1

Affidavit of Jeffrey A. Perla, Esquire, in support, with all exhibits

attached thereto................................................................................2


Affidavit of Neil F. Hoffman in support......................................................3


Affidavit of Andrew C. Matteliano, M.D., in support,

with all exhibits attached thereto......................................................4


Affirmation of Roger B. Williams, Esquire, Assistant Attorney

General, in opposition, with all exhibits attached thereto.................5