New York State Court of Claims

New York State Court of Claims

LYNCH v. THE STATE OF NEW YORK, #2004-033-088, Claim No. 105839, Motion No. M-68664


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:
Elovich & AdellBy: Glenn L. Sabele, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Gail P. Pierce-Siponen, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 3, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from injuries to Cornelius Lynch (hereinafter "claimant") due to the alleged negligence of the State of New York (hereinafter "State"). The claim is based upon the State's failure to protect claimant in that the State negligently secured an accident site. The claim of Helen Lynch is derivative in nature.
The claim arose on October 19, 2001, at approximately 11:15 p.m. on the eastbound side of the Southern State Parkway near Exit 20N. Prior to this time, a motorist, Orimoloye Adeniran (hereinafter "Bode"), was driving eastbound on the Southern State Parkway. His vehicle was struck by another vehicle from behind and Bode's vehicle spun around and came to rest on the center median, resting against the guard rail and facing westbound. New York State Trooper Suzanne Guacci ("Tpr. Guacci") responded to the accident. Tpr. Guacci parked her vehicle on the center median west of Bode's vehicle facing eastbound. According to Tpr. Guacci, she kept her headlights on and turned on her roof lights and waggle lights. In addition to Bode, other civilians were standing on the center median. These people had witnessed the accident, pulled their vehicles onto the eastbound shoulder of the Southern State Parkway and then ran across to check on Bode.

Claimant worked for Ogden Brothers Towing and Collision (hereinafter "Ogden") at the time of the accident. Ogden had a contract with the State for towing vehicles on this portion of the Southern State Parkway ("Parkway"). Claimant heard the call about the accident on his police scanner and responded to the scene. Eventually, claimant pulled his tow truck in front of Bode's vehicle, facing westbound on the eastbound portion of the Parkway.

In response to a request from Tpr. Guacci, another trooper, Tpr. Burroughs responded to the accident scene. Initially, he parked his vehicle by Tpr. Guacci's vehicle on the center median. Out of concern for the safety of the civilians on the center median, Tpr. Burroughs transported the civilians to the eastbound shoulder of the Parkway.

During this time, the traffic on the Parkway was still passing. The speed limit on this road is 55 m.p.h. The witnesses have varying accounts of the traffic volume. Some of the witnesses describe it as light to normal, while others describe it as normal to heavy. Danielle Virgil (hereinafter "Virgil") was operating a motor vehicle in an eastbound direction on the Southern State Parkway. At or about the accident scene, the vehicle in front of Virgil applied its brakes. Virgil testified that she applied her brakes hard. She lost control of her vehicle, sending it toward the center median and hit the tow truck pushing into the guard rail. Claimant and Tpr. Guacci were injured as a result of this second accident.

Defendant moves for summary judgment[1]. The State makes two arguments to support its motion. First, Tpr. Guacci was exercising a governmental function and is immune from liability minus a special relationship with claimant which the State maintains did not exist. Further, defendant argues, any negligence by its employee was superceded by the intervening acts of Virgil. Claimant opposes defendant's motion. Claimant posits that a special relationship existed and therefore, the State can be held liable for negligence. It is claimant's position that Tpr. Guacci was in charge of the accident scene and capable of directing all action taking place. According to claimant, Tpr. Guacci was negligent in failing to place flares at the scene as required by the New York State Police Field Manual ("Manual"). Without Tpr. Guacci's negligence, according to claimant, Virgil's vehicle would have been forced to slow down and the accident would not have occurred. In addition, whether Virgil was an intervening proximate cause is a question of fact.

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 Misc 2d 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).

In the ownership of property, the State of New York serves two functions. The first role casts the State in a proprietary function and the other role is that of a government function (Miller v State of New York, 62 NY2d 506). The functions are not mutually exclusive. Instead, the functions are opposite ends of a continuum (See Miller).
A governmental entity's conduct may fall along a continuum of responsibility to individuals and society deriving from its governmental and proprietary functions. This begins with the simplest matters directly concerning a piece of property for which the entity acting as landlord has a certain duty of care, for example, the repair of steps or the maintenance of doors in an apartment building. The spectrum extends gradually out to more complex measures of safety and security for a greater area and populace, whereupon the actions increasingly, and at a certain point only, involve governmental functions, for example, the maintenance of general police and fire protection. Consequently, any issue relating to the safety or security of an individual claimant must be carefully scrutinized to determine the point along the continuum that the State's alleged negligent action falls into, either a proprietary or governmental category. Miller at 511 - 512.

In regard to its proprietary function, "the State " ‘must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk' " (Basso v Miller, 40 NY2d 233, 241, quoting Smith v Arbaugh's Rest., 469 F2d 97, 100)" (Preston v State of New York, 59 NY2d 997, 998). The State's proprietary function subjects it to the same rules of liability as apply to a private citizen.

On the other end of the continuum, is the State's governmental function. The State "remains immune from negligence claims arising out of governmental functions such as police protection unless a special relationship with a person creates a specific duty to protect, and that person relies on performance of that duty" (Price v New York City Housing Authority, 92 NY2d 553, 557 - 558).

In Pelaez v Seide, 2 NY3d 186, 199-200, the Court of Appeals stated
[a] special relationship can be formed in three ways: (1) when the municipality violates a statutory duty enacted for the benefit of a particular class of persons; (2) when it voluntarily assumes a duty that generates justifiable reliance by the person who benefits from the duty; or (3) when the municipality assumes positive direction or control in the face of a known, blatant and dangerous safety violation (see [Garrett v Holiday Inns, Inc., 58 NY2d 253], 261-262). None apply here.

In the instant case, claimant argues that it is the second situation in which a special relationship can be found between the claimant and defendant. The elements of this type of relationship are found in Cuffy v City of New York, 69 NY2d 255, 260:
(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking (see, Shinder v State of New York, 62 NY2d 945, 946; see also, Sorichetti v City of New York, supra, p 469; cf. Nallan v Helmsley-Spear, Inc., 50 NY2d 507).

In arguing against a special relationship, defendant argues that Tpr. Guacci had no contact with claimant at any time while he was at the scene. Claimant, as well as some witnesses, say that Tpr. Guacci stopped traffic for claimant on the Southern State Parkway in order for him to turn his truck around to hook up to Bode's vehicle. Defendant also argues that Tpr. Guacci never requested claimant's presence at the scene prior to his appearance there.

Defendant's arguments against a special relationship are without merit, even assuming the truth of defendant's arguments. Tpr. Guacci was in charge of the accident scene. Therefore, she was responsible for the safety of all present. Claimant's company had the contract for towing on this portion of the Southern State Parkway. The fact that he heard the call and was able to appear without being specifically requested is irrelevant. Also irrelevant, is defendant's position that Tpr. Guacci and claimant never spoke.

The finding of a special relationship does not mean that there is an automatic finding of negligence and liability on defendant. From the evidence before the Court, defendant has merely failed to demonstrate that it is entitled to summary judgment. Questions of fact remain as to whether, according to the Manual, it was possible for Tpr. Guacci to place flares prior to the accident[2], whether she was negligent in not placing flares, and/or closing a lane of traffic. The Court also finds that the question of whether Virgil's intervening act was an superseding act (Derdiarian v Felix Contracting Corp., 51 NY2d 308).

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

December 3, 2004
Hauppauge, New York

Judge of the Court of Claims

[1]The following papers have been read and considered on defendant's motion: Notice of Motion for Summary Judgment dated June 21, 2004 and filed June 23, 2004; Affirmation in Support of Gail P. Pierce-Siponen, Esq. with annexed Exhibits A-P dated June 21, 2004 and filed June 23, 2004; Memorandum of Law in Support of Motion for Summary Judgment of Gail P. Pierce-Siponen, Esq. dated June 21, 2004 and received June 23, 2004; Undated Affirmation in Opposition of Glenn L. Sabele, Esq. with annexed Exhibits A-C filed August 6, 2004; Reply Affirmation of Gail P. Pierce-Siponen, Esq. with annexed Exhibits A-B dated September 7, 2004 and filed September 9, 2004; Undated Sur-Reply of Glenn L. Sabele, Esq. filed September 20, 2004.
[2]In reviewing the depositions and affidavits provided, there are wide discrepancies as to how much time elapses from Tpr. Guacci's arrival at the scene to the accident with Virgil's vehicle.