New York State Court of Claims

New York State Court of Claims

GUZOV v. THE STATE OF NEW YORK, #2004-033-067, Claim No. 106357, Motion No. M-68204


Case Information

DEBRA GUZOV, individually and as the
Administrator of the ESTATE OF ROBERT RUBINO, deceased
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:
Law Office of Michael J. ReganBy: Michael J. Regan, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 29, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from the death of Robert Rubino, M.D. (hereinafter "decedent") as the result of an accident on February 25, 2002. Decedent was involved in a one car motor vehicle accident on Montauk Highway in front of 715 Montauk Highway, Bay Shore, New York.
Decedent lost control of his vehicle and came into contact with large rocks which were lining the above property adjacent and parallel to Montauk Highway. According to decedent's wife, Debra Guzov (hereinafter "claimant"), the defendant, the State of New York (hereinafter "State"), was negligent in its ownership, operation, and maintenance of the accident site.

This action is for wrongful death of decedent. Claimant moves this Court for partial summary judgment[1] as to the question of whether the boulders at the accident location are within the boundaries of Montauk Highway.[2]

The State opposes claimant's motion.

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).

After denial of the previous motion for summary judgment, claimant appealed to the Appellate Division, Second Department. In its decision the court said "the motion nevertheless was properly denied because the defendant submitted evidence sufficient to raise a triable issue of fact as to whether it owned and/or controlled the property alongside the road where the accident occurred (see generally Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404, 144 NE2d 387, 165 NYS2d 498; Mongiove v Alesci, 268 AD2d 510, 701 NYS2d 672)." (Guzov v State of New York, __ AD2d __, 776 NYS2d 821). The question before this Court is moot and shall be left for the trier of fact.

Based upon the foregoing, claimant's motion for partial summary judgment is denied.

June 29, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on claimant's notice of motion for partial summary judgment: Notice of Motion dated March 18, 2004 and filed March 19, 2004, with Memorandum of Law in Support of Claimant's Motion dated March 18, 2004, Affidavit of Bruce N. Murrell with annexed Exhibit A sworn to March 8, 2004, Affidavit of Donald G. DeKenipp with annexed Exhibits A-F sworn to March 12, 2004; Affirmation in Opposition of John M. Shields, Esq. dated April 5, 2004 and filed April 8, 2004; Reply Affidavit of Michael J. Regan, Esq. with annexed Exhibit H sworn to April 7, 2004 and filed April 8, 2004.
[2]The Court recently denied claimant's motion for partial summary judgment which asked the Court to find that the defendant owned, operated, controlled and maintained the site (decision and order M-66706, filed October 9, 2003).