New York State Court of Claims

New York State Court of Claims

DeLEON v. THE STATE OF NEW YORK, #2004-033-061, Claim No. 105848, Motion No. M-67724


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):

James J. Lack
Claimant's attorney:
Edelman, Krasin & Jaye, P.C.By: Pollack, Pollack, Isaac & DeCicco, Esqs. (Brian J. Isaac, Esq.)
Defendant's attorney:
White, Quinlan & Staley, LLPBy: Joanne Emily Bell, Esq.
Third-party defendant's attorney:

Signature date:
June 24, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from the injuries sustained by John DeLeon (hereinafter "claimant") as the result of the alleged negligence of the defendant , the State of New York, in failing to adequately provide a safe work zone pursuant to Labor Law §§200 and 241(6).

Defendant moves for summary judgment on the issue of liability and asks the Court to dismiss the claim[1].

Claimant was employed as a laborer engaged in a construction project on the Long Island Expressway (hereinafter LIE), which is owned and maintained by the defendant. The accident happened on the LIE in the County of Nassau, State of New York, approximately 300 feet east of New Hyde Park Road, at approximately 11:20 p.m. on November 12, 2001. The work area was the eastbound lanes of the LIE, east of the New Hyde Park exit ramp and west of the Shelter Rock Road entrance ramp. This area was closed to eastbound and westbound traffic. According to the parties, the eastbound lanes were closed to eastbound traffic by two devices. The first were reflectorized barrels which directed all traffic to exit at New Hyde Park Road. The second device was a safety net stretched across the roadway which contained a strong wire to stop any cars from proceeding in an easterly direction. The wire is attached to posts on both sides of the road. There were no devices east of the work area on the eastbound lanes to prevent westbound traffic from driving the wrong way on the eastbound lanes. At the time of the accident, claimant was working on a light pole which was illuminating the work area. Claimant was struck by a vehicle heading westbound in the eastbound lanes. The vehicle had gotten onto the LIE headed in the wrong direction[2].

The defendant moves this Court for summary judgment and asks that the claim be dismissed based upon the deposition testimony of the claimant as well as its own witnesses and the expert affidavit of James Bryden.

In opposition to the motion, claimant presents an expert affidavit from Nicholas Bellizzi, an engineer. Claimant's expert disagrees with defendant's expert on the need to secure the trailing end of the construction zone. In addition, the experts disagree as to the interpretation of 12 NYCRR §23-1.29, which states that a construction zone should be completely barricaded.

In its reply, the State of New York asks that claimant's expert be disregarded and precluded. Defendant bases this request upon the Court's order dated September 9, 2003. On that date, the Court held a conference and disclosure of experts was discussed extensively. The Court set the date of December 27, 2003 for both sides to give the other notice as to any expert disclosure. Defendant states that claimant failed to give any notice of the use of Nicholas Bellizzi as an expert prior to December 27, 2003. The Court, in its discretion, will allow the claimant's use of the expert for purposes of this summary judgment motion only. Prior to trial, defendant can renew its application to preclude claimant's expert. Upon renewal of defendant's application, claimant will be afforded an opportunity to establish good cause for its late disclosure.

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. 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 movant 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). 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). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp.,77 NY2d 525).

From the evidence before the Court, it is clear that the opinions of the experts conflict. It is unclear, on their face, as to which expert's favor the scales tip. The parties must put their proof through the test of cross-examination at trial in order to answer this question. When presented with conflicting opinions of experts, it is the duty of the trier of fact to weigh the testimony of the experts (Gleeson-Casey v Otis Elevator Co., 268 AD2d 406).

Based upon the foregoing, defendant's motion for summary judgment is denied. The parties shall contact the Court to schedule a trial date as soon as possible.

June 24, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on defendant's notice of motion : Notice of Motion dated November 25, 2003 and filed December 1, 2003; Affirmation in Support of Joanne Emily Bell, Esq. with annexed Exhibits A-M dated November 25, 2003 and filed December 1, 2003; Affidavit in Support of James E. Bryden sworn to November 24, 2003 and filed December 1, 2003; Affirmation in Opposition of Brian J. Isaac, Esq. with annexed Exhibit A dated January 19, 2004 and filed January 21, 2004; Affidavit of Nicholas Bellizzi sworn to January 20, 2004 and filed January 21, 2004; Reply Affirmation of Joanne Emily Bell, Esq. with annexed Exhibits N-O dated February 9, 2004 and filed February 10, 2004; Further Affidavit in Support of James E. Bryden sworn to February 5, 2004 and filed February 10, 2004.
[2]The driver was later charged with vehicular assault and driving while intoxicated.