New York State Court of Claims

New York State Court of Claims
O’KEEFFE v. THE STATE OF NEW YORK, #2006-010-007, Claim No. 109135, Motion Nos. M-70815, CM-71032
Synopsis

Claimant’s motion to strike defendant’s third affirmative defense and defendant’s motion for summary judgment are denied.
Case Information
UID:
2006-010-007
Claimant(s):
WILLIAM O’KEEFFE
Claimant short name:
O’KEEFFE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109135
Motion number(s):
M-70815
Cross-motion number(s):
CM-71032
Judge:
Terry Jane Ruderman
Claimant’s attorney:
CLARK, GAGLIARDI & MILLER, P.C.
By: Sarah J. Eagen, Esq.John Rand, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 22, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:
AFFIRMED 40 AD3D 607 2D DEPT 5/1/07
See also (multicaptioned case)
2006-010-008


Decision

Claim Nos. 109135 (O’Keeffe v State of New York) and 110753 (Lancer v State of New York) arise out of the same motor vehicle accident and have been joined for trial. Accordingly, the motions and cross-motion before this Court regarding these claims shall be heard jointly.
The following papers numbered 1-5 were read and considered by the Court on claimant’s Motion No. M-70815 (O’Keeffe) and defendant’s Cross-Motion No. CM-71032 (O’Keeffe/Lancer):
Notice of Motion, Supporting Affidavit and Exhibits..............................................1
Notice of Cross-Motion, Supporting Affirmation and Exhibits.................................2
Affidavit in Reply.....................................................................................................3
Affidavit in Opposition to Cross-Motion and Exhibits.............................................4
Reply Affirmation and Exhibit..................................................................................5
The following papers numbered 1-2
[1]
were read and considered by the Court on claimant’s Motion No. M-71031 (Lancer) and defendant’s Cross-Motion No. CM-71032 (O’Keeffe/Lancer):
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1
Affirmation in Opposition.........................................................................................2
The dispositive issue on the motions and cross-motion before this Court is whether, at the time of the accident, defendant’s snowplow operator was “actually engaged in work on a highway” so as to be covered by Vehicle and Traffic Law §1103(b), which would require a showing of recklessness to establish liability of defendant.
Upon consideration of all the papers and exhibits before this Court, including review of the compact disc recording of the accident, and oral argument having been heard, the Court makes the following findings. Motion No. M-70815 (O’Keeffe) to strike defendant’s third affirmative defense and Motion No. M-71031 (Lancer) to strike defendant’s fourth affirmative defense are DENIED.
With regard to defendant’s cross-motion for summary judgment (CM-71032, O’Keeffe/Lancer), the Court finds that there are material issues of fact on the critical issue of whether, at the time of the accident, defendant’s snowplow operator was merely traveling to and from a work site or was in fact actually engaged in patrolling his assigned route. Accordingly, defendant’s cross-motion for summary judgment is DENIED and resolution of this issue must await trial.

March 22, 2006
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims



[1] In addition to the papers submitted on the cross-motion and listed under the O’Keeffe motion.