Affidavit (In Opposition) 4
Memorandum of Law (Claimant) 5
Reply Affirmation, with Exhibits 6
The essential facts which form the basis of this claim are not in dispute. On
January 23, 1999, a motor vehicle accident occurred on New York State Route 34B
in the Town of Lansing. A tractor trailer slid into a ditch along the side of
the road and turned over on its side. The State Police investigated the
accident and requested wrecker trucks to pull the tractor trailer out of the
ditch. During the course of this operation, the State Police decided to close
Route 34B to thru traffic and all such traffic (both eastbound and westbound) on
Route 34B was diverted to Drake Road, a town road owned and maintained by the
Town of Lansing, which provides a direct connection between Route 34B and New
York State Route 34. All traffic on Route 34B was re-routed to Drake Road for
the entire time that it took to pull the tractor trailer from the ditch and
remove it from the accident scene, a process which took approximately two and
one-half hours. Drake Road, however, had a weight limit in effect at that time,
which prevented certain truck traffic on the road. Since Drake Road was made
available for all types of traffic for the period of time in which Route 34B was
closed, the Town alleges in its claim that the overweight vehicle traffic
directed onto Drake Road by the State Police caused damage to the road, for
which it seeks damages. The State asserts that it is immune from liability
pursuant to the "Emergency Rule" provisions of Vehicle and Traffic Law §
1602, and therefore seeks dismissal of the claim.
It is well settled that summary judgment is the procedural equivalent of a
trial (Andre v Pomeroy, 35 NY2d 361) and should be granted only when it
has been established that there is no triable issue (Moskowitz v Garlock,
23 AD2d 943). The role of the Court, therefore, on a motion for summary
judgment is not to resolve material issues of fact, but instead is to determine
whether any such issues exist (Sillman v Twentieth Century-Fox Film
Corp., 3 NY2d 395). If such material issues of fact exist, the motion for
summary judgment must be denied (Rotuba Extruders v Ceppos, 46 NY2d 223).
In other words, the issue is not whether claimant can ultimately establish
liability, but rather, whether there exists a substantial issue of fact
requiring a plenary trial (Scarpulla v County of Suffolk, 128 AD2d 603).
However, only bona fide issues of fact are sufficient to defeat an application
for summary judgment, and not issues "based on conclusory or irrelevant
allegations" (Rotuba Extruders v Ceppos, supra at 231).
Claimant contends that there are issues of fact which preclude summary
judgment. Specifically, claimant has alleged that there are questions of fact
as to whether it was necessary to close Route 34B to both eastbound and
westbound traffic in order to remove the tractor trailer from the ditch, and
whether there was an available alternate route for the diverted traffic other
than Drake Road.
Vehicle and Traffic Law § 1602(a), however, specifically provides a police
officer in emergency situations with the authority "temporarily to close any
street or part thereof to vehicular traffic, ... or to divert the traffic
thereof". The State Police were clearly acting within such statutory authority
when they closed Route 34B and directed traffic onto Drake Road, and such
discretionary acts cannot therefore provide a basis of liability.
Claimant also contends that even in situations where the "Emergency Rule"
provisions of Vehicle and Traffic Law § 1602 have been invoked, there is no
such provision which immunizes the State from liability for such actions.
Section 1602(b), however, specifically authorizes the State Police to "direct
traffic as conditions may require notwithstanding the provisions of this chapter
or of local laws, ordinances, orders, rules or regulations regulating traffic."
Since the State Police have been granted the specific statutory authority to
disregard local laws and traffic regulations while directing traffic in
emergency situations, it would be directly contrary to the legislative intent of
this section if the State could then be held liable in negligence for such
discretionary actions. Accordingly, under the facts as presented in this
claim, and pursuant to the "Emergency Rule" provisions of Vehicle and Traffic
Law § 1602, the Court finds that it does not have the authority to grant
the relief sought by claimant in this claim.
Therefore, it is
ORDERED, that Motion No. M-67142 is hereby GRANTED; and it is further
ORDERED, that Claim No. 103052 is hereby DISMISSED.