LYNCH v. THE STATE OF NEW YORK, #2004-033-088, Claim No. 105839, Motion No.
CORNELIUS LYNCH, JR. and HELEN LYNCH
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JAMES J. LACK
Elovich & AdellBy: Glenn L. Sabele, Esq.
Eliot Spitzer, New York State Attorney GeneralBy: Gail P. Pierce-Siponen, Assistant Attorney General
December 3, 2004
See also (multicaptioned
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
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
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
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
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
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 -
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
, 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.
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of
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.
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.