New York State Court of Claims

New York State Court of Claims

WHALEN v. THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2002-031-001, Claim No. 94524, Motion No. M-63529


Claimant failed to set forth evidence of a State act or omission causally related to Claimant's MVA. Defendants' motion for Summary Judgement granted.

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:
Defendant's attorney:
HON ELIOT SPITZER, Attorney General
BY: RICHARD B. FRIEDFERTIG, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On November 21, 2001, the following papers were read on Defendants' Motion for summary judgment, and to compel the deposition testimony of Claimant Richard Whalen: Defendants' Notice of Motion dated May 18, 2001 1

Affidavit of Paul Volcy, Esq., sworn to May 18, 2001 and

Annexed Exhibits 2

Defendants' Memorandum of Law dated May 18, 2001 3

Opposition Affidavit of Robert H. Perk, Esq., sworn to July 3, 2001 4

Affidavit of Diane Whalen, sworn to July 2, 2001 5

Supplemental Affidavit of Leslie Stroth, Esq., sworn to August 24, 2001 6

Affidavit of Joseph Leshinskie, Jr., sworn to July 12, 2001 7

Filed Papers: (Claim & Answer) 8

This is Defendants' motion for summary judgment. Alternatively, Defendants seek to compel the deposition testimony of claimant Richard Whalen, whose claim is derivative in nature. Unless otherwise specified, "Claimant" refers to Diane Whalen.

At approximately 12:40 A. M. on May 19, 1996, Claimant, a passenger in a car driven by her friend Cynthia Young, was injured in a two car accident at the intersection of Austin and Niagara Streets in Buffalo. In their claim filed August 12, 1996, Claimants allege that the second vehicle involved in the accident, a pick-up truck driven by Michael Moser, had approached the intersection from the nearby Austin Street exit ramp of Interstate 190 ("I-190"). Claimants assert that the design and maintenance of the exit ramp and the traffic control devices which controlled it were insufficient and defective.

Claimant and Ms. Young had been at Casey's Grille, a nearby bar and grill, for approximately 7 hours prior to the accident. Ms. Young testified at her deposition that, at the time of the accident, she was giving Claimant a ride home because Claimant was intoxicated. Upon leaving Casey's Grille, the Young car turned south onto Niagara Street and proceeded a short distance (approximately three car lengths) to the intersection, which is controlled by a traffic light.

Claimant alleges that she and Ms. Young stopped in the eastern-most, southbound lane of Niagara Street which is dedicated for vehicles turning left onto Austin Street. While waiting for the light to turn green in their favor, they were struck by the Moser pick-up truck. Claimant asserts that she saw the lights of the Moser vehicle on her right immediately before the collision and that she was sure that, at the point of collision, the Young vehicle had not made a left hand turn onto Austin Street. Based upon this, she believes that the Moser vehicle entered the intersection from Austin Street. Austin Street dead ends some distance west of the intersection and the I-190 exit ramp. Based upon this, Claimant assumes that the Moser vehicle must have entered Austin Street from the I-190 exit ramp.

Defendants assert that summary judgment is appropriate because: 1) the Moser vehicle was not in fact coming from the I-190 exit ramp; and 2) apart from conclusory allegations, Claimants have come forward with no evidence of negligence on the part of the State of New York.

Defendants argue that the testimony of the parties and the witnesses demonstrates that the Moser vehicle was not coming off the I-190 exit ramp, but rather had been traveling north on Niagara Street. Defendants point out that the driver of the pick-up truck, Michael Moser, stated that he was traveling north on Niagara Street and that the Young vehicle turned left in front of him just before the impact. Mr. Moser's testimony in this regard is consistent with that of the driver of the vehicle Claimant was in, Ms. Cynthia Young. Ms. Young testified that she stopped for the light at the intersection, that the light turned green, and that she started to make a left hand turn when the collision occurred. Defendants suggest that Claimant's observation of the Moser vehicle lights on her right just before impact may have been while Young was attempting to make her left turn. Therefore, Defendants contend that Claimant's testimony in this regard is not in conflict with Mr. Moser's testimony.

Claimants oppose the motion, asserting that a factual dispute concerning the direction the Moser vehicle traveled prior to the accident precludes summary judgment at this time. Claimants also assert that two passengers in the Moser vehicle and another eyewitness, Mr. Joseph Leshinskie, Jr., have yet to be deposed. For these reasons, Claimants maintain that the motion is premature.

With regard to this later argument, I note that the claim was filed more than five years ago and that Claimants have filed notes of issue on two different occasions. Each note of issue was subsequently vacated at the request of Defendants, albeit without objection from Claimants. Additionally, all parties were subject to the previous scheduling orders in this matter. The original order required all discovery and depositions to be completed on or before December 31, 1997. This order was extended once to October 31, 1999, and then again to June 6, 2000. There have been no further requests for extensions. In any event, as discussed below, Mr. Leshinskie's observations are now known. As far as the other two witnesses to the accident, Claimants' hope that what they might say might raise a question of fact is too speculative to rebut Defendants' prima facie showing that they are entitled to summary judgment.

There is, to some extent, conflicting testimony regarding the route taken by the Moser vehicle just prior to the accident. Claimants allege that the Moser vehicle, traveling west from Austin Street and on her right, ran the stop light and collided with her vehicle. The testimony of Josephine Dubois, an employee of Casey's Grille, to some extent, supports this position. Although Ms. Dubois could not see the traffic light, and saw the vehicles only just before impact, she believes that the Moser vehicle came from Austin Street. As stated above, Defendants maintain that the Moser vehicle was heading north on Niagara Street and that Cynthia Young failed to yield the right of way and turned left in front of Mr. Moser. Defendants note that Cynthia Young received a traffic citation for turning left in front of the Moser vehicle.

Claimants also argue that certain photographs, which depict the damage sustained by each vehicle in the accident, support their theory that the Moser vehicle had been east-bound on Austin Street just prior to the accident. I find that the photographs, without more information, are decidedly ambiguous in this regard. They support the theory that the Young vehicle turned left in front of the north-bound Moser vehicle just as well as they support the theory that the Moser vehicle approached the Young vehicle from the west, or passenger, side.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. (see, CPLR 3212; 7 Weinstein- Korn-Miller, NY Civ Prac ¶ 3212.01; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065; Zuckerman v City of New York, 49 NY2d 557). In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if the moving party provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc2d 93, aff'd 26 AD2d 729).

However, even assuming, as I must, Claimants' contention that the Moser vehicle came from Austin Street, there is no evidence to support the inference that the Moser vehicle also came from the I-190 exit ramp immediately prior to the accident. Though Claimants can argue as to the direction from which the Moser vehicle approached the intersection, this is not the issue. Defendants can only be liable if Claimants can show that the Moser vehicle came from the I-190 exit ramp and that the ramp, as it relates to the intersection, was not properly designed, signed or maintained. Neither Claimant nor any other witness saw the Moser vehicle exit the I-190 ramp. Moser himself says he was not coming from the ramp. Significantly, in a supplemental affidavit submitted by Defendants, non-party witness Joseph Leshinskie, Jr. (one of the missing witnesses identified in Claimant's opposition papers) states that he witnessed the accident and that the Moser vehicle was not traveling east on Austin Street, but north on Niagara Street just prior to the accident. While one can argue that perhaps the Moser vehicle was closer to the ramp than Moser and Leshinskie say, Claimants have failed to come forward with evidence to rebut Defendants' submission. Claimants have no evidence which places the Moser vehicle on the I-190 exit ramp prior to the accident.

Claimants have also failed to demonstrate any nexus between the design and maintenance of the exit ramp and the accident. Even if one were to assume that the Moser vehicle had in fact come from the I-190 exit ramp, Claimants have come forward with no evidence as to how the design, maintenance, or signage of the ramp was causally related to the accident. "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. On the other hand, to defeat a motion for summary judgment the opposing party must ‘show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd [b])" (Friends of Animals v Associated Fur Mfrs., supra). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). "[M]ere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient" to defeat the motion (Zuckerman v City of New York, supra; Amatulli v Delhi Constr. Corp., 77 NY2d 525).

I find that Defendants have demonstrated that no genuine issue of fact exists as to whether a State act or omission was causally related to the Claimant's accident. Claimants have failed to adequately rebut Defendants' proof. While the accident was most unfortunate and apparently not the result of negligence on Claimant's part, Claimants' failure to come forward with evidence supporting their action against the State requires that the claim be dismissed.

Based upon the foregoing it is:

ORDERED, that Defendants' motion for summary judgment dismissing the Claim in this matter is granted, the alternative relief requested by Defendants is denied as moot, and the Clerk is directed to close the file.

January 28, 2002
Rochester, New York

Judge of the Court of Claims