arises from a fatal automobile
accident that occurred on July 21, 1997 when a vehicle driven by Melody Wilson
was traveling westbound on the Staten Island Expressway (hereinafter "Roadway")
between Richmond Road and Targee Street when she lost control of her vehicle,
struck the right guide rail, and traveled across three lanes of traffic before
striking the center guide rail. At the time of this accident, said Roadway was
the location of an ongoing construction project in which El Sol Contracting and
Construction Corporation (hereinafter "El Sol") had been hired by the State to
rehabilitate numerous bridges. Ms. Wilson remained in a coma for three months,
but ultimately succumbed to her injuries on October 28, 1997.
This Claim alleges three areas in which the State was negligent including: (1)
providing inadequate signs in relation to placement, number and/or content
forewarning the traveling public of the upcoming construction zone on said
Roadway; (2) improperly maintaining the surface of said Roadway; and (3)
inadequate design of a roadway through a construction zone.
In support of this motion, the State submits an attorney's affirmation,
together with deposition transcripts from numerous witnesses conducted jointly
with respect to both the pending Court of Claims matter and the companion
Supreme Court matter. In addition, various exhibits, including accident reports
and photographs, were also submitted. The primary focus of the State's motion,
however, is the deposition of Jessica Isaacs, decedent's sister and the
front-seat passenger in decedent's vehicle at the time of the accident. The
remaining depositions are from several witnesses to the crash, namely Louis
Pica, Alexandre Provenzano, and Fabiana Franco; the first police officer on the
accident scene, Sergeant Richard Lam, a New York City Police Officer; and two El
Sol employees, Elias Hazem and Timothy Erwin. The State contends that the cause
of this accident was Claimant's own negligence in the operation of her vehicle
and argues that there is no proof beyond mere speculation that the State was
negligent in any manner.
On a motion for summary judgment, the moving party must present evidentiary
facts that establish the party's right to judgment as a matter of law by
proffering sufficient evidence to eliminate any genuine, material issues of
fact, whereupon "[t]he burden shifts to the party opposing the motion for
summary judgment to produce evidentiary proof in admissible form sufficient to
establish the existence of material issues of fact which require a trial of the
action [citation omitted]." (Alvarez v Prospect Hosp., 68 NY2d 320,
324). The failure, as here, to come forward in opposition permits the Court to
infer that there is no genuine fact issue to be tried. (Banasik v Reed
Prentice Div. of Package Mach. Co., 34 AD2d 746, affd 28 NY2d 770;
Siegel, NY Prac § 281, at 442 [3rd ed]). Moreover, failing to respond to a
fact attested to in the moving papers will be deemed an admission thereof.
(Kuehne & Nagel v Baiden, 36 NY2d 539, 544).
The following description of events leading up to this accident are taken
primarily from Ms. Isaacs' deposition testimony. Ms. Isaacs states that she and
her sister were returning home from the city after taking a brokerage exam and
were traveling in the center lane of the Roadway. Apparently, decedent began to
move into the right lane but retreated when a "greenish color" car "scooted" by
on their right. (Exhibit F, pp 49 & 103). Ms. Isaacs was certain that the
green vehicle did not in any manner cut off their vehicle explaining that said
vehicle was approximately one car length in front of them. (Exhibit F, pp 50,
52-53). Although Officer Lam wrote in his memo book and subsequent report that
said vehicle cut off decedent's vehicle (Exhibits H & I), Ms. Isaacs
indicated that Officer Lam misunderstood whatever she may have said at the
scene. (Exhibit F, pp 94-95). In sum, Ms. Isaacs indicated that decedent
started to move back to the center lane but was blocked by traffic, moved back
to the right, hit the right guide rail, lost control of the vehicle, crossed
three lanes of traffic, and hit the center guide rail with considerable force.
The Court will examine the three theories of liability alleged in this Claim
and the State's proof in support of its motion for summary judgment in relation
thereto. With respect to the allegations of improper signage, the State has
submitted the deposition transcript from Mr. Erwin, a 13-year employee of El Sol
in the position of foreman at the time of this accident. Mr. Erwin stated in
his deposition that signs, including "road work" and "rough road ahead" signs
were posted at specified intervals ahead of the construction zone as part of the
normal custom and practice and in accordance with the project plans. (Exhibit
Q, pp 33-52, 82, 103; see also Exhibits R and S). Mr. Hazem, another El
Sol employee, confirmed the presence of said signs. (Exhibit P, pp 68-69). Mr.
Provenzano who was traveling behind decedent's vehicle generally recalled that
construction signs were posted warning of the construction ahead. (Exhibit L,
pp 20-21, 63-66). Claimant has not come forward with any proof that such signs
were inadequate in either number, placement or content.
The next issue in which the Claim alleges the State was negligent was by
improperly maintaining the surface of said Roadway. The State points to the
deposition testimony of Ms. Isaacs in which she indicates that decedent's
vehicle had not yet reached the milled portion of the Roadway and was traveling
on a normal surface at the time of the accident. (Exhibit F, 112-113). The
State also emphasizes that Ms. Isaacs' prior statements to Officer Lam at the
accident scene and those made at her 50-H hearing did not include any complaints
relative to the surface causing the decedent to lose control of her vehicle.
(Exhibit G, p 82; Exhibit J). The Court agrees that Ms. Isaacs' statement that
the vehicles in front of them were slowing down as they approached the milled
portion of the roadway is mere speculation. (Exhibit F, 114). In any event,
Claimant has failed to come forward with any proof creating a question of fact
that this accident occurred on the milled portion of the Roadway or that it
contributed to this accident in any respect.
The final declaration of negligence contained in the Claim relates to an
allegation of inadequate design of the Roadway through a construction zone. The
State responds by relying on the statements of El Sol employees that the project
followed the State's Maintenance and Protection Traffic Plan provided by the
State's Department of Transportation. (Exhibit P, pp 15, 54, 73-75). In this
Court's view, based upon the relative vague nature of this allegation in the
first instance, the State's proof sufficiently eliminates any question of fact
from this area of alleged State negligence.
Again, Claimant elected not to present either evidence or legal arguments in
opposition to this motion. Consequently, Claimant is deemed to have admitted
the allegations made by the State in support of its summary judgment motion,
thereby resulting in the inescapable conclusion that there exists no material
question of fact. (Springer v Clark Publ. Co., 191 AD2d 922, 924, lv
dismissed 82 NY2d 706). Accordingly, upon the unrefuted submissions of the
State, this Court finds that the State has met its burden. Claimants have
failed to come forward to meet their burden in opposition by failing to submit
any opposition to the State's motion in either the form of affidavits from fact
witnesses, expert opinion, and/or any legal arguments. (D'Aquila Bros.
Contr. Co. v H.R.H. Constr. Corp., 35 AD2d 815; Banasik, supra,
34 AD2d at 746).
Accordingly, in light of the foregoing, it is ordered that the State's motion
for summary judgment, Motion No. M-65068, is GRANTED and Claim No. 99138 is