New York State Court of Claims

New York State Court of Claims

JAMES v. THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2002-029-154, Claim No. 98526, Motion No. M-64168


State's amended motion to dismiss was considered by the Court to be a motion for summary judgment. State's motion denied as State failed to include as exhibits to motion copies of all pleadings. Motion to amend answer to assert defense of Collateral Estoppel also denied.

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:
Larkin, Axelrod, Trachte & Tetenbaum, LLPBy: Adam Garth, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Jeane Strickland Smith, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 7, 2002
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


By notice of motion dated October 12, 2001, the defendant, New York State Thruway Authority (hereinafter NYSTA) moves for an order dismissing the claim on the grounds that NYSTA "did not have jurisdiction over the situs of the accident and thus cannot be liable to claimant". By amended notice of motion dated January 10, 2002, both defendants seek an order (1) allowing them to amend their answer pursuant to CPLR § 3025 (b) to assert the defense of collateral estoppel and (2) dismissing the claim on the basis that (a) claimant is collaterally estopped from raising the issue of liability, (b) both defendants lacked jurisdiction over the site of the accident and are not liable to claimant and (c) defendants are immune from liability under the doctrine of qualified immunity.

This is an action to recover for personal injuries and wrongful death of the decedent, Gladstone Leeds James, Jr., due to the alleged negligence of the defendants, State of New York and NYSTA. The claim alleges that on August 21, 1997, at approximately 6:45 a.m., decedent was involved in a motor vehicle accident on the eastbound side of Interstate 84 (hereinafter I-84) approximately ½ mile east of Route 9W in the Town of Newburgh at the approach to the Newburgh-Beacon Bridge. At that time, decedent lost control of the motor vehicle he was operating and struck a guardrail and a barrier on the side of the roadway. The cab to his truck separated from the trailer, both fuel tanks on the cab ruptured, spilling fuel on to the roadway and causing the engine to catch fire. As a result of the accident, James was killed. Claimant commenced an action against the defendants, primarily on the theory that the roadway surface was both constructed of and resurfaced with materials making the conditions of the subject roadway excessively slippery. A preliminary conference order was entered into between the parties in this matter on August 27, 1998 (see Exhibit A attached to claimant's affirmation in opposition) in which the parties agreed that summary judgment motions were to be made no later than forty-five (45) days from the filing of the note of issue. Pursuant to that order, the note of issue deadline was set for May 3, 1999. Subsequently, the parties stipulated to extend the time for filing the note of issue first to March 15, 2001 and subsequently to June 29, 2001 (see Exhibit B attached to claimant's affirmation in opposition). The stipulation further set forth the requirement that all summary judgment motions be made within forty-five (45) days of filing the note of issue. The claimant again received permission to extend the time for filing her note of issue (due to outstanding discovery from the defendants) until August 31, 2001, at which time claimant filed the note of issue (see Exhibit C attached to claimant's affirmation in opposition). By letter dated August 29, 2001 (Exhibit D attached to claimant's affirmation), claimant wrote the Court advising that claimant would file the note of issue on August 31, 2001 but indicated that outstanding discovery from the defendants existed and requested Court permission to conduct such discovery after the filing. The deadline for summary judgment motions therefore ended on October 15, 2001. As stated above, NYSTA filed a motion dated October 12, 2001, initially returnable on November 28, 2001 and adjourned to January 23, 2002.

After the motion was served and filed, the parties advised the Court that there was an issue of outstanding discovery being owed to claimant. The Court held a telephone conference with the parties on November 29, 2001. At the conference, the Court directed defendants to supply any project identification numbers for any work on the subject roadway for the last ten years, or if the defendants can find such projects for any years preceding that time frame by or on behalf of the defendants, those records should be supplied as well. The Court imposed a deadline of December 20, 2001 for the defendants to provide such information. On December 19, 2001, the defendants responded with three project identification numbers and agreed to make any documents in existence on those projects available to claimant for inspection. On January 14, 2002, the Attorney General filed the amended notice of motion. The Court granted claimant's counsel's request for an adjournment of the amended motion and the motion was deemed fully submitted on February 27, 2002.

Claimant objects to defendants' amended motion on the basis that there is no provision in the CPLR permitting an amended motion. Claimant asserts that the amended motion seeks different relief than did the first motion and that defendants are attempting to circumvent the Court's order that summary judgment motions be made within 45 days from the date of the filing of the note of issue.

While claimant is correct that an amended motion is not specifically permitted by the CPLR, neither is it specifically prohibited. Thus, in the exercise of discretion, the Court will consider defendants' amended motion and not the Thruway Authority's original motion dated October 12, 2001. The Court understands claimant's frustration at having to deal with the amended motion which was served and filed three months subsequent to NYSTA's original motion. However, as the Court adjourned the motion to allow claimant adequate time to submit opposition papers, we find no prejudice to claimant.

The amended motion seeks permission to amend the answer pursuant to CPLR § 3025 (b) and dismissal of the claim. Defendants seek dismissal on the basis (1) of collateral estoppel, (2) that neither defendant had jurisdiction over the site of the accident and (3) that the defendants are immune from liability under the doctrine of qualified immunity.

Defendants' motion does not refer to the statute under which it seeks dismissal of the claim. It is unclear whether defendants rely on CPLR 3211 or 3212. However, since issue has been joined, the Court will decide this motion pursuant to CPLR 3212.

Even though a party is not formally given notice by the Court of its intention to treat a motion to dismiss as one for summary judgment, summary judgment treatment is nevertheless appropriate where the parties "charted a course for summary judgment" and the only question before the Court was a legal one (Kulier v Harran Transport. Co., 189 AD2d 803, 804). In Guzzo v Easterntech Electronics (86 AD2d 717), the Appellate Division held that a motion seeking dismissal of a complaint once an answer had been interposed where the moving party submitted evidentiary proof on the issues presented, the Court should consider the motion as one for summary judgment. In the instant case, issue was joined on September 29, 1998 (see affirmation in opposition, paragraph 14), when the defendants' answer was interposed. Discovery has taken place and a note of issue has been filed. We, therefore, treat defendants' motion as one for summary judgment.

CPLR 3212 (b) requires that a motion for summary judgment be supported by a copy of the pleadings (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338). In support of their motion, the defendants have submitted a copy of claimant's claim and amended claim (see Exhibit I attached to supplemental affirmation).[1] The defendants have failed to attach a copy of their verified answer to the claim. The failure to include pleadings in support of a motion for summary judgment requires that the motion be denied, regardless of the merits of the motion (Deer Park Assocs. v Robbins Store, 243 AD2d 443; Lawlor v County of Nassau, 166 AD2d 692; Somers Realty Corp. v Big "V" Props., 149 AD2d 581; see Niles v County of Chautauqua, 285 AD2d 988; see also, Gallagher v TDS Telecom, 280 AD2d 991). Therefore, based upon the foregoing, as defendants have failed to comply with the requirements of CPLR 3212 (b), the motion for summary judgment dismissing the claim is denied.

We now turn to that portion of the defendants' motion which seeks to amend the answer to assert the affirmative defense of collateral estoppel. Although leave to amend pleadings should be freely given, amendments which are devoid of merit should not be permitted (West Branch Realty Corp. v Exchange Ins. Co., 260 AD2d 473; Sharon Ava & Co. v Olympic Tower Assocs., 259 AD2d 315).

The Court of Appeals in Kaufman v Lilly & Co. (65 NY2d 449) succinctly described the doctrine of collateral estoppel as follows:

"The doctrine of collateral estoppel precludes a party from relitigating ‘an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point' (Gilberg v Barbieri, 53 NY2d 285, 291; see, Schwartz v Public Administrator, 24 NY2d 65, 69). It is a doctrine intended to reduce litigation and conserve the resources of the court and litigants and it is based upon the general notion that it is not fair to permit a party to relitigate an issue that has already been decided against it. There are now but two requirements which must be satisfied before the doctrine is invoked. First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination (Gilberg v Barbieri, supra, at p 291; Schwartz v Public Administrator, supra, at p 71; see, Koch v Consolidated Edison Co., 62 NY2d 548, 554-555, cert denied US , 105 S Ct 1177; Ryan v New York Tel. Co., 62 NY2d 494, 500-501). The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action (see, Ryan v New York Tel. Co., supra, at p 501; Schwartz v Public Administrator, supra, at p 73)." (id., at 455-456.)

In order for collateral estoppel to apply, we must find (1) that the identical issue presented here was decided in the Supreme Court action and that it is decisive of this claim; and (2) that claimant had a full and fair opportunity to contest the determination in Supreme Court (Kaufman v Lilly & Co., 65 NY2d 449, supra).

In claimant's action against the New York State Bridge Authority in Supreme Court, she alleged that the Bridge Authority was negligent inter alia in the design of the bridge and for failure to provide a safe speed and proper warnings (see Exhibit G attached to amended motion, decision of Hon. Peter C. Patsalos, Supreme Court, Orange County). In the claim before the Court, the issue is the makeup of the pavement of the roadway and its inherent slipperiness. It appears that the bridge was built pursuant to contract let by the State (see Exhibit K attached to defendants' amended motion, deposition transcript of William Moreau). Any issue dealing with the State's involvement could not have been decided in the Supreme Court action as Supreme Court lacks jurisdiction to determine issues relating to the negligence of the State or NYSTA. Thus, the issue presented here could not have been decided in Supreme Court. As the issue was not decided, it is obvious that the claimant could not contest the matter in Supreme Court. We conclude that the doctrine of collateral estoppel does not apply in the present case and thus, the proposed amendment of the pleading lacks merit. The defendants' motion to amend their answer is denied.

The following papers were read and considered by the Court on the defendants' motion to amend their answer and for summary judgment dismissing the claim:

Papers Numbered

Notice of Motion, Affirmation
and Exhibits Attached 1

Amended Notice of Motion,

Supplemental Affirmation and
Exhibits Attached 2

Affirmation in Opposition and
Exhibits Attached 3

Filed Papers: Claim, Answer

March 7, 2002
White Plains, New York

Judge of the Court of Claims

[1] We note that attached to the motion dated October 12, 2001, NYSTA attached the notice of intention and the claim.