New York State Court of Claims

New York State Court of Claims

BARRETT v. STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY, #2003-015-354, Claim No. 103421, Motion No. M-67003


Motion for leave to renew and/or reargue prior summary judgment motion dismissing the claim is denied. No excuse offered for claimant's failure to offer affidavit of meteorologist during initial motion and even if such affidavit were considered the result would be the same since the Court based its prior decision on lack of notice of a dangerous condition and did not credit opinion of defendant's meteorologist.

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:
Peltz & WalkerAlexander Peltz, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 30, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The claimants' motion pursuant to CPLR 2221 for leave to renew and reargue a prior motion (M-66175) which granted the defendants' motion for summary judgment dismissing the claim is denied. The underlying claim seeks to recover damages for personal injuries sustained by James A. Barrett, Jr. and Stephen M.S. Gordon who were passengers in a 1986 Volkswagen Golf driven by Sanchez Reddicks on the New York State Thruway in the Town of New Baltimore at approximately 2:10 a.m. on January 31, 2000. The Reddicks vehicle was traveling in the left of two northbound lanes of the New York State Thruway near milepost marker 125.9 when it was struck from behind by a tractor trailer operated by Miguel Carela. Carela reported he did not see the Reddicks vehicle prior to the collision due to heavy snow. The force of the impact crushed the rear of the Reddicks vehicle including the passenger compartment in which claimant James A. Barrett was seated resulting in catastrophic personal injuries.

Claimant Stephen Gordon, a front seat passenger, sustained less severe injuries for which he seeks compensation.

By decision and order dated May 8, 2003 (filed May 14, 2003) the Court granted defendants' summary judgment motion and dismissed the claim finding the claimants had failed to establish a material issue of fact concerning actual or constructive prior notice by the Thruway Authority of a dangerous condition existing at or near the site of claimants' accident.

The claimants now move pursuant to CPLR 2221 for an order granting leave to renew and/or reargue the prior motion for summary judgment. A motion to reargue is governed by CPLR 2221 (d) which provides:
(d) A motion for leave to reargue:

1. shall be identified specifically as such;

2. shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion; and

3. shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry. This rule shall not apply to motions to reargue a decision made by the appellate division or the court of appeals.
After careful review and consideration of defense counsel's supporting affidavit and attached exhibits it appears that the Court neither misapplied existing law nor misapprehended the facts presented by the movant on the earlier motion. Accordingly, the claimants' motion to reargue is denied.

The claimants have also moved to renew the prior motion and in conjunction therewith have offered the affidavit of meteorologist Michael G. Cejka sworn to June 13, 2003, his unsworn, undated report (Exhibit 5), along with certified meteorological records of the National Climatic Data Center (Exhibit 4). Motions to renew a prior motion are governed by CPLR 2221 (e) which provides:
(e) A motion for leave to renew:

1. shall be identified specifically as such;

2. shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination; and

3. shall contain reasonable justification for the failure to present such facts on the prior motion.

The Legislature amended Rule 2221 in 1999 to add, inter alia, mandatory language requiring that a movant set forth a reasonable justification for its failure to submit on the prior motion the new facts upon which the motion for leave to renew is based (Greene v New York City Hous. Auth., 283 AD2d 458; Ulster Sav. Bank v Goldman, 183 Misc 2d 893). The effect of the 1999 amendment was to place in the statute the proposition previously established by case law that "[i]n order to prevail on a motion to renew, the movant must demonstrate 'both new facts to support the motion and a justifiable excuse for not initially placing such facts before [the] . . . Court' [Wagman v Village of Catskill, 213 AD2d 775, 775-776; see Matter of Gilson v National Union Fire Ins. Co., supra, at 898; Matter of Barnes v State of New York, 159 AD2d 753, lv dismissed 76 NY2d 935]" (N.A.S. Partnership v Kligerman, 271 AD2d 922, 923). It has been recognized more than once that "[r]enewal is by no means guaranteed and 'is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation' " (Matter of Barnes v State of New York, supra, at 754, quoting Matter of Beiny, 132 AD2d 190, 210, lv dismissed 71 NY2d 994; see also N.A.S. Partnership v Kligerman, supra).

Here, claimants' counsel's only excuse for not offering either the affidavit of Cejka or the climatic data on the prior motion was that he was unaware of the existence of hourly Doppler radar images for the State of New York at the time he opposed the initial motion. While the Court appreciates counsel's candor it finds that the excuse proffered does not constitute a reasonable justification for the failure to present the subject proof on the prior motion (see, Cole-Hatchard v Grand Union, 270 AD2d 447; Dawkins v Long Is. R.R., 302 AD2d 349).

Moreover, even if the Court in the exercise of its discretion were to consider the newly submitted affidavit, report and climatic data their consideration would not change the prior determination. A review of the Court's May 8, 2003 decision and order reveals that in arriving at its determination on the initial motion the Court was not persuaded by the contention of the defendants' meteorologist (Phillip D. Falconer) that the two drivers did not encounter whiteout conditions at or near milepost marker 125.9 in the early morning hours of January 31, 2000. In fact, the Court specifically declined "to find as a matter of law that whiteout conditions did not exist at or near milepost marker 125.9 at the time of the subject accident" (Exhibit 1, page 8).

The lynchpin in the Court's decision was the lack of proof of defendants' actual or constructive notice of the whiteout conditions prior to the accident. Neither the climatic data now offered nor the February 29, 2000 report of Dean Kennedy (Exhibit 2) proves such notice nor demonstrate the presence of a material issue of fact in that regard. Since the new facts, even viewed liberally, would not change the Court's determination, claimants' motion to renew is hereby denied (see, CPLR 2221 [e][2]).

Furthermore, claimants offered no proof on the original motion and offer no proof here to support the claim that the State knew or should have known of the whiteout conditions allegedly encountered by the claimants and the tractor trailer driver that morning. Even the most liberal reading of the Kennedy report, including the statement that "State Police advised me that there was very heavy snow with near whiteout conditions at the time of the accident" [emphasis added], does not support claimants' position that the State had prior knowledge of the condition. As related in this Court's earlier decision and order, Sergeant Cullen testified that he did not recollect near whiteout conditions, Trooper Swann recalled neither the accident nor the attendant weather conditions, and Kennedy did not remember the source of his information. The Kennedy report therefore fails to raise a material issue of fact precluding summary judgment.

Claimants' motion to renew and/or reargue is, in all respects, denied.

September 30, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated June 13, 2003;
  2. Affirmation of Alexander Peltz dated June 12, 2003 with exhibits;
  3. Affidavit of Michael G. Cejka sworn to June 13, 2003 with exhibits;
  4. Affidavit of Michael C. Rizzo sworn to July 23, 2003 with exhibits;
  5. Affidavit of Alexander Peltz sworn to August 5, 2003.