New York State Court of Claims

New York State Court of Claims

WILSON v. THE STATE OF NEW YORK, #2002-019-537, Claim No. 99138, Motion No. M-65068


State's unopposed motion for summary judgment is granted.

Case Information

RICHARD WILSON, as Administrator of the Estate of MELODY WILSON, Deceased, and RICHARD WILSON, individually
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:
& KOOLBY: Lambros Y. Lambrou, Esq., of counsel
Defendant's attorney:
BY: NICOLETTI, GONSON & BIELAT, LLPVita J. Barbetta, Esq., of counsel
Third-party defendant's attorney:

Signature date:
June 4, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for summary judgment pursuant to CPLR 3212. Claimants have elected not to submit any papers in opposition to this motion.

The Court has considered the following papers in connection with this motion:
  1. Claim No. 99138, filed October 15, 1998.
  2. Claim No. 101651, filed December 22, 1999.
  3. Stipulation, filed October 20, 2000.
  4. Notice of Motion No. M-65068, dated April 8, 2002, and filed April 19, 2002.
  5. Affirmation of Vita J. Barbetta, Esq., in support of motion, dated April 8, 2002, with attached exhibits.

This Claim[1] 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 DISMISSED.

June 4, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Upon Stipulation between the parties filed October 20, 2000 with the Clerk of the Court, Claim Nos. 99138 and 101651 were consolidated.