Memorandum of Law (In Opposition) 7
Affirmation in Reply, with Exhibits 8
Affidavit in Reply of George A. Turner 9
Sur-Reply Affirmation 10
Affirmation in Response to Sur-Reply, with Exhibits 11
Correspondence from Claimant's Attorney, dated October 16, 2003 12
Correspondence from Defendant's Attorney dated October 21, 2003 13
In his claim, claimant seeks damages for personal injuries allegedly suffered
by him in a multiple vehicle accident which occurred on February 2, 2001. On
that date, claimant, an inmate in the custody of the New York State Department
of Correctional Services, was a passenger in a bus transporting claimant and
other inmates between correctional facilities. In addition to the driver of
this vehicle, one George A. Turner, there were a total of 16 inmates aboard the
bus, together with one sergeant and two correction officers. The bus was
proceeding northbound on Interstate Route 81 in Jefferson County, on its way to
Watertown Correctional Facility, when the accident occurred. At the time of the
accident, it was snowing heavily, and there was limited visibility on the
highway. The roadway was snow covered and slippery.
Claimant alleges that the defendant was negligent in its operation of the bus
which caused, or contributed to, the accident and claimant's resulting injuries.
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). Additionally, the Court
notes that summary judgment is seldom appropriate in a negligence action (see,
Andre v Pomeroy, supra).
In its motion for summary judgment seeking dismissal of this claim, defendant
contends that at the time of this accident, the bus which was occupied by
claimant had already stopped on the highway when it was thereafter struck from
behind by another vehicle, and that there is no indication of any negligence in
the operation of the bus by its driver.
In support of its motion, defendant has submitted the affidavit of George A.
Turner, the operator of the bus involved in the accident. In his affidavit, Mr.
Turner states that as he was driving north on Route 81, he observed a truck,
which was proceeding ahead of him, brake by activating its brake lights. Mr.
Turner stated that he then applied his brakes, the bus traveled approximately 20
to 50 feet, and then came to a complete stop. After the bus had come to a stop,
Mr. Turner stated that the bus was struck from behind once, causing it to be
pushed forward, and that it then came to rest without coming into contact with
any other object.
In addition to this affidavit, and as additional support for its request for
summary judgment, defendant has also submitted a newspaper account of the
accident (see Exhibit L to Items 1-4) the police accident report
(Exhibit H), a supplemental accident report (Exhibit J) and a Department of
Correctional Services "Unusual Incident Report" (Exhibit K), all of which
contain references that the bus was stopped on the roadway and that it was
rear-ended by a tractor-trailer. Defendant therefore contends that the
affidavit of Mr. Turner, together with these records, reports, and newspaper
accounts, establish that the bus was properly and safely stopped before it was
struck from behind, and that there is no proof suggesting that Mr. Turner was
negligent in his operation of the vehicle.
In response, the affidavit of claimant has been submitted (see Item 6), in
which he states that just prior to the accident, the bus driver and correction
officers were "fooling around" and that the bus driver "was not paying attention
to the road". He further claims that the bus had not come to a stop before it
was struck from behind by another vehicle.
In response thereto, defendant has submitted a further affidavit from Mr.
Turner (see Item 9) in which he emphatically denies any accusations of
"fooling around" or inattentiveness.
Defendant apparently takes the position that this Court should credit the
affidavits of Mr. Turner (supported by newspaper accounts, accident
reports, and the internal investigation by the Department of Correctional
Services), disregard claimant's affidavit, and dismiss this claim.
However, as previously stated, summary judgment should not be granted if
triable issues of fact exist (Moskowitz v Garlock, supra).
Claimant, in his affidavit, has certainly raised such material issues with
regard to the actions of Mr. Turner in his operation of the bus, and whether
such actions, if established, caused or contributed to the accident. Simply
stated, it appears that an issue as to the credibility of witnesses exists,
based upon the contradictory affidavits submitted herein. It is not a proper
role for the Court to determine such issues as credibility in a motion for
summary judgment. Such issues are best resolved after the Court has had an
opportunity to assess the testimony of each witness, and their demeanor, at
Furthermore, the additional documents submitted by defendant in support of its
motion do not contain sufficient evidentiary proof in admissible form so as to
enable the Court to award summary judgment at this stage of the proceedings.
None of the submitted documents (i.e., police accident reports, the Unusual
Incident Report, or the newspaper account) were prepared by individuals who
witnessed the accident, and therefore they cannot form the basis for granting
summary judgment. (See, Goldstein v Town of Liberty, 189 AD2d 989;
Platovsky v City of New York, 275 AD2d 699).
Therefore, in viewing the facts in a light most favorable to claimant, the
Court finds that triable issues of fact do exist which preclude summary
Additionally, the Court notes that in his response to this motion claimant has
also asserted liability predicated not only on the alleged negligent operation
of the bus by Mr. Turner, but also by the fact that claimant was not provided
with a seat belt during his transport. Since the Court has already decided
herein to deny defendant's motion for summary judgment, it would not typically
address matters of an evidentiary nature. In this instance, however, counsel
for the parties have fully and arduously addressed the question as to whether
the lack of seat belt usage in this particular instance should be admissible at
a future trial on liability. Due to its potential significance, this issue will
therefore be addressed at this time.
Claimant has asserted liability against the State due to its failure to provide
any seat belts or other safety restraints for claimant during his transport on
this bus. Claimant contends that the failure to provide such restraints may be
considered by the Court in its determination as to whether the State exercised
reasonable care in the transport of this inmate. Claimant relies on Vehicle and
Traffic Law § 383(1)(c), which requires motor vehicles to have one
seat belt for each passenger seat position. Claimant argues that the failure to
provide seat belts for the inmates on this bus, as required by § 383(1)(c),
is probative evidence that the State was negligent in providing for the safety
of these inmates during transport and that such evidence should be before the
Court when it makes its determination on negligence, under common law
Defendant, however, relies upon Vehicle and Traffic Law § 1229-c, which
proscribes penalties for the failure to use seat belts when required by statute.
Pursuant to § 1229-c(9), taxis, liveries, and buses (other than school
buses) are exempt from the penalties provided in this section. It is
defendant's position that since passengers in these types of vehicles are not
required to use seat belts, these vehicles are therefore exempt from the
requirement under § 383 that safety belts must be provided for each
passenger seat position in these vehicles. In fact, it has been specifically
stated that "[t]he safety seat belt law does not apply to taxis and buses other
than school buses." (Carrieri, Practice Commentaries, McKinney's Cons Laws of
NY, Book 62A, V&T Law § 375, at 413).
Defendant further relies upon Vehicle and Traffic Law § 1229-c(8), which
specifically provides that noncompliance with the provisions of § 1229-c is
not admissible as evidence in any civil action with regard to the issue of
It is well settled that a plaintiff's failure to use a seat belt is
inadmissible in determining the issue of liability under common law negligence
(Spier v Barker, 35 NY2d 444). Additionally, § 1229-c(8)
clearly prohibits any evidence of noncompliance to be introduced on the
issue of liability, where such use is required under § 1229-c (Hamilton
v Purser, 162 AD2d 91; Baker v Keller, 241 AD2d 947).
Since the Legislature has specifically prohibited any evidence of seat
belt non-use in any civil action with regard to the issue of liability in
situations where seat belt use is required under § 1229-c, it is
inconceivable that evidence of non-use could then be admissible to establish
negligence in cases where, as here, seat belt usage is not mandated.
Accordingly, this Court finds that since seat belts are specifically not
required on buses, evidence of such non-use cannot be admissible in any trial of
this claim as to liability.
Therefore, it is
ORDERED, that Motion No. M-66320 seeking an order of summary judgment
dismissing the claim, is hereby denied, as provided for herein.