New York State Court of Claims

New York State Court of Claims

STACK v. THE STATE OF NEW YORK, #2005-029-484, Claim No. 105589, Motion Nos. M-69677, CM-69739


Synopsis


Pursuant to CPLR 3212 (a), claimant moves and the State cross-moves for summary judgment on the issue of liability.


Claimant's motion for summary judgment as to liability is denied since claimant has not established that the guy wire which hit her car came loose from the subject tree. However, pursuant to CPLR 3212 (g), the Court finds that the following facts have been established for all purposes in this action: 1) that the subject tree was dead and constituted a dangerous condition of which the State had actual notice; 2) the State failed to take reasonable corrective measures; 3) that a guy wire was attached to a tree on the State right-of-way in violation of the State's specifications; and 4) the State failed to ensure that contractors did not attached guy wires to trees or promptly order their removal.

Case Information

UID:
2005-029-484
Claimant(s):
BARBARA STACK
Claimant short name:
STACK
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105589
Motion number(s):
M-69677
Cross-motion number(s):
CM-69739
Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Law Office of Thaniel J. Beinert & AssociatesBy: Marc A. Merolesi, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 12, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Pursuant to CPLR 3212 (a), claimant moves and the State cross-moves for summary judgment on the issue of liability.

On June 15, 2000, at approximately 8:30 p.m., claimant was driving eastbound on Route 94 about 3/10 of a mile east of Horton Road in the Town of Blooming Grove in Orange County when out of the corner of her eye she saw a wire[1] coming toward her from above. The wire struck on the hood of the car and became wrapped around the front right fender causing the two front tires to lift off the ground. The car became entangled with the wire, which was attached to a pole. As the wire became taunt, the car was lifted about ten feet into the air. Claimant asserts that the wire then snapped and the car crashed resulting in property damage to the car and personal injuries to her (see Stack's Affidavit in Support). It is asserted that the wire was attached to a decaying tree located in the State right-of-way adjacent to the roadway (Merolesi's Affirmation in Support, Paragraph 3; Stack's Affidavit in Support, Paragraph 14).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853, supra).

Negligence cases do not usually lend themselves to summary judgement (Ugarriza v Schmieder, 46 NY2d 471, 474). However, even in negligence cases, summary judgment must be granted where the claimant's prima facie proof is so convincing that the inference of negligence is inescapable if not rebutted by other evidence (Smith v Moore, 227 AD2d 854; Horowitz v Kevah Konner, Inc., 67 AD2d 38).

It is well settled that the State has a duty to maintain its roadways in a reasonably safe condition and that duty extends to trees adjacent to the roadway which could reasonably be expected to result in injury or damage to the users of the roadways (see Harris v Village of East Hills, 41 NY2d 446; Guido v State of New York, 248 AD2d 592). The duty to "properly inspect and correct [the potential danger] by trimming or removal is essential to proper maintenance" of trees by the State (Edgett v State of New York, 7 AD2d 570, 574). Liability, however, does not attach unless the State had actual or constructive notice of the potentially dangerous condition and then failed to take reasonable measure to correct the condition (see Leach v Town of Yorktown, 251 AD2d 630).

In support, claimant has submitted the affidavit of Irving Steenrod (Exhibit A attached to Motion) who has lived in his home located on Route 94 for the last 48 years. Mr. Steenrod avers:

"A few years prior to the accident, which is the subject of this action, my wife and I were in our house and our power went out. Upon investigation I noticed that a large part of the tree in front of my property had broken and fallen off into the street. I remember that it was a Sunday afternoon or early evening, approximately around the time of the celebration of the Washingtonville Centennial...I remember [the Town Supervisor] calling to report that a section of the tree had fallen into the highway.

The State sent a crew to clean up the debris and I recall that they responded right away. I remember the crew pushed aside the parts of the tree that had broken off into the ditch on the side of the road. The next day they sent a crew to clean up all of the downed sections of the tree and to trim off excess parts of the dead tree that were not affecting the guide wire. I remember speaking to a Mr. Rose from the State who was in charge of the crew the State sent to clean up. Mr. Rose had informed me that he was going to notify Orange and Rockland. Mr. Rose also informed me that they could not remove the remaining portions of the dead tree due to the fact that the Orange and Rockland had a guide wire attached to it (id. Paragraphs 4 and 5).


Mr. Steenrod avers that the utility company was notified and a crew was sent to restore power to his home, however, the guide wire was never removed from the dead tree, nor did the State remove the dead tree from in front of his property (id. Paragraphs 6 and 7).

Claimant also submitted a copy of Section 01500 of the New York State Design and Construction Master Specifications Paragraph 1.06 (H) (Exhibit C attached to Motion) which provides, in relevant part, that guy wires should not be attached to trees. While these specifications do not have the force of law, they are persuasive as to what the State considers improper or dangerous.

Based upon this record, the Court finds that claimant has established a prima facie showing that the subject tree was dead and constituted a dangerous condition of which the State had actual notice and failed to take reasonable corrective measures (see Guido v State of New York, 248 AD2d 592, supra; see also Rinaldi v State of New York, 49 AD2d 361). The Court further finds that claimant has established a prima facie showing that a guy wire was attached to a tree on the State right-of-way in violation of the State's specifications and that the State failed to ensure that contractors were not attaching guy wires to trees or to promptly order their removal when discovered. However, claimant has offered no evidence that the guy wire that struck her car is the same guy wire that was attached to the dead tree. In his affidavit, Mr. Steenrod states "I have come to learn that on or about June 15, 2000, the guide wire came loose and was entangled in Ms. Stack's vehicle" (Exhibit A attached to Motion, Paragraph 8), however, Mr. Steenrod does not appear to have personal knowledge regarding this fact (Republic Nat. Bank of New York v Luis Winston, Inc., 107 AD2d 581; CPLR 3212 [b]).

In support of its cross-motion for summary judgment and in opposition to claimant's motion, the State submitted an affirmation from counsel and affidavits from two Department of Transportation employees. The Court finds that none of these documents rebut the facts established by claimant (see Smith v Moore, 227 AD2d 854; see also Notice v Regent Hotel Corp., 76 AD2d 820) nor do they make a prima facie showing of entitlement to judgement as a matter of law. Therefore, the cross-motion is denied.

Based upon the foregoing, claimant's motion for summary judgment as to liability is denied since claimant has not established that the guy wire which hit her car came loose from the subject tree. However, pursuant to CPLR 3212 (g), the Court finds that the following facts have been established for all purposes in this action: 1) that the subject tree was dead and constituted a dangerous condition of which the State had actual notice; 2) the State failed to take reasonable corrective measures; 3) that a guy wire was attached to a tree on the State right-of-way in violation of the State's specifications; and 4) the State failed to ensure that contractors did not attached guy wires to trees or promptly order their removal.

The parties are directed to contact the Court within 30 days of the date of the filing of this decision and order to schedule a conference for the purpose of establishing a date for the trial of the only remaining fact issue regarding liability.

The following papers were read and considered by the Court on claimant's motion for summary judgment as to liability and the State's cross-motion for summary judgment:

Papers Numbered


Notice of Motion, Affidavit in Support,
Affirmation in Support and Exhibits attached 1


Notice of Cross-Motion, Affirmation
and Affidavits 2

Affirmation in Opposition and Exhibits attached 3


Filed Papers: Claim and Answer




April 12, 2005
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1] In the submitted documents, this "wire" was referred to variously as "wire", "guide wire" and "guy wire".