New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2006-010-024, Claim No. 110647, Motion No. M-71799


Synopsis


Claimant’s motion for summary judgment on the issue of liability is granted. Claimant has demonstrated entitlement to judgment as a matter of law by presenting undisputed proof that defendant’s driver attempted to make a left turn directly into the path of claimant’s oncoming vehicle as claimant legally proceeded into the intersection with the right-of-way.

Case Information

UID:
2006-010-024
Claimant(s):
LUIS A. LOPEZ, JR.
1 1.The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
LOPEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110647
Motion number(s):
M-71799
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
SPIEGEL, BROWN, FICHERA & ACARD, LLPBy: Cynthia K. Fichera, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 2, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimant’s motion for summary judgment on the issue of liability:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits........................1

Attorney’s Affirmation in Opposition and Exhibits.................................................2

Attorney’s Reply Affirmation and Exhibits..............................................................3

This claim arises out of a motor vehicle accident that occurred at approximately 1:15 p.m. on February 14, 2005 at the intersection of Route 52 and Prospect Street in the Town of Fishkill. At that time, claimant was driving a Ford Escort station wagon westbound on Route 52 as he approached the intersection to his right. Route 52 had the right-of-way and Prospect Street was controlled by a stop sign.

Claimant has demonstrated entitlement to judgment as a matter of law on the issue of liability by presenting undisputed proof that defendant’s driver of a New York State Department of Correctional Services (DOCS) van proceeded into the intersection from Prospect Street almost immediately behind another DOCS van and attempted to make a left turn onto Route 52 and directly into the path of claimant’s oncoming vehicle as claimant legally proceeded into the intersection with the right-of-way (see Vehicle and Traffic Law § 1141; Berner v Koegel, ___ AD3d ___ [2d Dept. July 18, 2006]). Defendant’s driver, operating a vehicle on a street governed by a stop sign, was required to bring the van to a stop and remain stationary until it was clear to proceed across the intersection and to yield to vehicles on the intersection thoroughfare operating with the right-of-way (see Vehicle and Traffic Law §1142[a]; Friedberg v Citiwide Auto Leasing, Inc., 22 AD3d 522, 523). Defendant’s driver was bound to see the oncoming traffic through the proper use of his senses and defendant’s driver’s failure to yield constituted negligence as a matter of law. Claimant, who had the right-of-way, was entitled to anticipate that defendant would obey traffic laws which required him to yield (see Moreback v Mesquita, 17 AD3d 420).

In opposition to claimant’s prima facie showing, defendant failed to demonstrate the existence of a triable issue of fact as to whether claimant was comparatively negligent (see Gabler v Marly Bldg. Supply Corp., 27 AD3d 519). “The conclusory and speculative assertions concerning [claimant’s] speed and possible negligence were unsupported by competent evidence” (see Maloney v Niewender, 27 AD3d 426, 427; Ishak v Guzman, 12 AD3d 409 [conclusory assertions that claimant may have been able to take evasive action to avoid the accident were speculative and insufficient to raise an issue of fact]).

Consistent with appellate case law in the Second Department, “although the [claimant] is entitled to summary judgment on the issue of liability, that does not automatically include a determination that [he] sustained a serious injury within the definition of Insurance Law §5102[d] (see Zecca v Riccardelli, 293 AD2d 31 [2002])” (Canfield v Beach, 305 AD2d 440, 442). Moreover, in opposition to claimant’s motion for summary judgment on the issue of liability, defendant has not submitted any competent medical evidence sufficient to make a prima facie showing that claimant has not sustained a serious injury within the meaning of Insurance Law §5102(d) (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [showing required to establish claimant’s serious injury]; Gaddy v Eyler, 79 NY2d 955); nor has claimant moved for summary judgment on this issue (see Zecca v Riccardelli, 293 AD2d 31, 34 [the most practical conclusion is for claimant to move for summary judgment on both issues of liability and serious injury]; Perez v State of New York, 215 AD2d 740).

Accordingly, this Court finds that whether claimant has sustained a serious injury cannot be determined on the papers before this Court and such threshold issue, which is claimant’s burden to prove, must await determination by the Court at trial.

Claimant’s motion for summary judgment on the issue of liability is GRANTED and a trial on the issue of whether claimant sustained a serious injury within the meaning of Insurance Law §5102(d) and damages will be set down as soon as practicable.


August 2, 2006
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims