MILBACK v. THE STATE OF NEW YORK, #2006-028-506, Claim No. 109003, Motion No.
The deposition testimony of a key witness failed to contain critical statements
that the same witness made in a subsequent affidavit submitted in opposition to
a motion for summary judgment. Because there was no flat, direct contradiction
between the statements, the Court must conclude that a question of material fact
has been raised, and summary judgment is denied.
CATHERINE A. MILBACK and DAVID J. MILBACK
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
RICHARD E. SISE
MENTER, RUDIN & TRIVELPIECE, P.C.
BY: Robert G. Bennett, Esq. andJames H. McGowan, Esq.
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joel L. Marmelstein, Esq.Assistant Attorney General
January 10, 2006
See also (multicaptioned
The following papers were read on Claimants' motion for summary judgment in
their favor on the issue of liability:
1. Notice of Motion and Supporting Affirmation of Robert G. Bennett, Esq.,
with annexed Affidavit of Catherine A. Milback and Exhibits
2. Affirmation in Opposition of Joel L. Marmelstein, AAG, with annexed
Affidavit of Brandy C. Bogardus and Exhibits
3. Reply Affirmation of Robert G. Bennett, Esq.
Filed papers: Claim; Answer
This claim arose on September 3, 2002, at Jacques Cartier State Park in
Morristown, New York. In her affidavit (Bennett Affirmation, attachment),
Claimant Catherine A. Milback
states that she
and her husband went to the Park's office (the toll booth) in order to register
for a camp site. While her husband was outside the building with Park
officials, she went into the office to pick up a brochure that a friend had
asked her to obtain.
After entering the building, I immediately saw an armoire type object with two
hinged cupboard-like doors. The doors were opened slightly and I could see the
brochure I was looking for on the inside of both doors. While opening the doors
to grab a brochure, I felt a large, heavy object strike the top of my head and I
was in excruciating pain.
(Milback Affidavit, ¶ 4). The object that fell on Claimant was a
television set that had been placed on the top of the brochure rack. Claimant
further alleges that after the accident she was advised by various Park
employees "that a maintenance worker had placed the television set on top of
boards which ran across the doors of the brochure rack" (id. ¶ 6).
This was done at the request of another Park employee who wished to watch
television while she worked (id. ¶ 6). Claimant said she had been
in the building only a few seconds prior to the incident and that she did not
see the television set on the top of the brochure rack.
Claimants now move for summary judgment in their favor on the ground that
Defendant's employees "have admitted creating a trap upon its premises" (Bennett
Affirmation, ¶ 26). These admissions are said to have been made during the
course of examinations before trial of Brandy C. Bogardus and Stephen L.
Brandy Bogardus testified that during the fall of 2002 she was employed by the
Park system as a "toll booth worker." Her primary assignment had been at Eel
Weir State Park (Bennett Affirmation, Exhibit H, p 7), where she had not been
able to watch television while she worked. At Jacques Cartier State Park, she
was assigned to toll booth duty only and anticipated being able to watch TV
because she knew there had been a television in that booth all summer. The
television she observed during the summer was placed on top of the brochure
rack. That set belonged to another employee, who took it with her when she left
at the end of the summer. Bogardus had watched the other television whenever
she had been assigned to Jacques Cartier earlier in the summer, and no one ever
told her that TV-watching was not permitted or complained about her watching it
(id. p 12). Because the other employee had taken that television with
her, Bogardus brought her own set when she reported to work on September 3,
2002. Her television was 19 or 20 inches in size and, she believed, slightly
larger than the one that had been there previously.
Bogardus testified that she carried the set into the building sometime between
9:00 a.m. and 10:30 a.m. and put it on the floor. At some point she also
connected it to a cable that led to the antenna located somewhere outside the
building (id. p 29). Another employee, Steve Carter, whom she believed
to be a maintenance worker, came to the toll booth later and offered to put the
television on top of the brochure rack, positioned as the earlier set had been
positioned. She believed that he used a board, taken from behind the desk, to
hold the television on top of the brochure rack (id. p 15); she was
"pretty sure" that the same board had been used previously to hold the other
television set. As to the exact location, Bogardus stated, "[t]he board was out
a couple inches from the T.V. which was over the brochure rack about two inches"
(id. p 17).
She was present in the toll booth, around 1:00 p.m., when the television fell
and struck Claimant. She testified that Claimant and another woman entered the
booth, while their male companions stayed outside "playing with the campers."
Claimant began the checking-in process first, which normally takes five to ten
minutes. As the second woman was registering, Claimant walked outside, talked
to her husband and then came back in. Claimant then went toward the brochure
rack, and Bogardus said "please don't touch that" just as doors opened up
(id. p 20), causing the television to wobble and fall down. She recalled
that the television was turned on but said that if the sound had been turned on,
it was not very high. After Claimant was struck, Bogardus and another employee
who had just entered the building rushed over, helped her to sit down, and
called the rescue squad and their supervisor. Bogardus was immediately
dismissed. She stated that in addition to maintenance worker Carter, two other
employees, Bob and Meryl, had seen the television in place that morning.
Stephen L. Carter testified at his deposition that he is a seasonal employee of
the State of New York, typically working from mid-April until the end of October
as a Park Worker Aide (Bennett Affirmation, Exhibit I). His duties include
maintenance, ground maintenance, servicing equipment, mowing, weeding,
conducting water tests and general cleaning. September 3rd was the first day
that he had worked at Jacques Cartier State Park during the day shift that
He went by the toll booth and saw Brandy Bogardus, whom he knew from Eel Weir
State Park, sometime before noon, at which time she asked him to help her put
her television on the top of the brochure cabinet. At the time of her request,
he stated, the television was in the back of her car. He retrieved it from the
car, carried it into the toll booth, and put it on top of the brochure cabinet.
It was a 19-inch color television, and at first it would not stay up on the
She then went and got a board and placed it underneath the T.V. set on the front
side of the screen and opened the brochure cabinet doors part way and the T.V.
set stayed up there.
(id. p 12). Clarifying the arrangement, Carter confirmed that the
television set was on top of the board and the board was set on top of the
brochure rack doors. Carter said that he commented to Bogardus that she should
"make sure no one opens up those doors" (id. p 13). He went to lunch and then
to other duties and did not learn about the accident until later in the
afternoon when he returned to the toll booth. Once he learned of the accident,
Carter went to Claimant's camp site to inquire about her well-being and "told
her I felt partially responsible because I was the one that put the T.V. set up
there" (id. p 16). Carter had no recollection of any previous toll booth
workers watching television while they worked (id. pp 21-22).
According to counsel for Claimants, "[t]he State's actions here constitute the
very definition of the word negligence," and Claimant's own actions could not be
at fault because she did not see the television set and, in any event, "was
using the brochure rack in the exact manner and purpose for which it was
intended, to wit: to provide brochures and other literature to Park patrons"
(Bennett Affirmation, ¶¶ 26, 27).
In opposition to the motion, defense counsel contends that there are questions
of material fact that remain unresolved, effectively precluding summary judgment
at this juncture. These questions of fact are as follows: 1) whether other
employees had mounted another television set on the brochure cabinet in the same
fashion earlier in the year,
Bogardus put up a warning note about the presence of the television set, and 3)
whether Claimant had seen the television set in its location prior to opening
the cabinet door.
In support of its position, Defendant has submitted an affidavit from Brandy
Bogardus that contains information that was not provided at her earlier
deposition. In this affidavit, Bogardus indicates that "there are certain facts
that were not sufficiently discussed [at the deposition] which, I am told, are
now relevant" (Marmelstein Affirmation attachment, ¶ 3). She now states
that as soon as the television set was placed atop the brochure cabinet,
I prepared a sign. It was done on an index card that measured either 5 inches
by 5 inches or 4 inches by 6 inches. The sign was hand printed in black magic
marker. I wrote in bold letters, "DO NOT OPEN OR MOVE". I attached the sign by
scotch tape to the edge of one of the folding doors at eye level. I am 5 feet 6
or 7 inches tall. I believe Mrs. Milback is approximately 5 feet 4 inches tall.
The sign faced outward. It was clearly visible. It was in place when Mrs.
Milback came to the toll booth and at the time of the accident (id.
In addition, she now states that during Claimant's first trip into the toll
booth "I recall her watching the television set and the soap opera being
presented" and that, also during that first visit, Claimant had started to look
at some pamphlets in the rack and Bogardus said, "careful - T.V. on top"
(id. ¶ 6).
The statements contained in the Bogardus affidavit, if credited, would be
sufficient to raise a material question of fact as to the role that Claimant's
own negligence played in causing her injuries. Because Bogardus made no mention
during her deposition of either preparing a warning sign or of Claimant's
attention to a soap opera playing on the television set, the statements are to
be considered together with her deposition in weighing her credibility. In
addition, at the deposition Bogardus said that her verbal caution to Claimant
occurred immediately before the television fell, not during Claimant's first
trip inside the toll booth.
The two accounts – one given in sworn testimony at an examination before
trial and the other in a sworn affidavit obtained by counsel – are so
inconsistent that one is tempted to consider them contradictory. If so,
Claimants contend, the later statements are insufficient to prevent summary
judgment: "[A]n affidavit submitted in opposition to a summary judgment motion
which contradicts prior sworn testimony creates only a feigned issue of fact,
and is insufficient to defeat a properly supported motion for summary judgment"
(Bennett Reply Affirmation, ¶ 16).
The cases cited in support of that proposition are distinguishable from the
present situation, however. In Harty v Lenci (294 AD2d 296 [1st Dept
2002]), the primary ground for holding that the defendant hospital was entitled
to summary judgment in its favor was that expert opinion from the plaintiff's
own medical expert established that she had suffered permanent injuries a
significant period of time before she had any contact with the hospital. The
issue about which there was contradictory testimony, whether the plaintiff had
spoken with a hospital official before noon on the day she received treatment,
related to a secondary, cumulative reason for the decision and, in addition,
involved a direct and total contradiction with the plaintiff's earlier testimony
that she had not spoken to any hospital official early in the day.
Kistoo v City of New York (195 AD2d 403 [1st Dept 1993]) also involved a
flat, direct contradiction of earlier testimony. At the deposition, the
plaintiff had testified that she first observed her assailant when she entered
the building and saw him standing near the elevators. In her subsequent
affidavit, she stated that she observed him as he entered the building. The
trial court had determined that that inconsistency raised a question of material
fact, but the appellate court reversed, holding that the lower court "improperly
relied on plaintiff's self-serving affidavit, which directly contradicted her
prior deposition testimony."
It also appears that a similar direct contradiction was involved in
Krakowska v Niksa (298 AD2d 561 [2d Dept 2002]), where the trial court's
determination that there was an unresolved issue of material fact was based on
statements that contradicted the plaintiff's deposition testimony and were made
for the first time in an affidavit in "an attempt to raise a feigned factual
issue designed to avoid the consequences of dismissal."
In the instant situation, although Bogardus' deposition testimony is
logically inconsistent with her subsequent affidavit, there is no similar
flat, direct contradiction. She never stated in the earlier examination that
she didn't put up a warning sign, or that she never saw Claimant watching a soap
opera on the television set, or that she had given a verbal warning to Claimant
during her first visit to the toll booth as well as immediately before the
Since the facts about which there must be some doubt are critically relevant to
the issue of whether Claimant's conduct contributed to her injuries, the drastic
remedy of summary judgment would be inappropriate at this juncture. Deciding
that issue will essentially come down to a determination of Bogardus'
credibility. Except in the most rare circumstances where testimony or
statements are "patently false and incredible as a matter of law" (see e.g.
Sexstone v Amato, 8 AD3d 1116 [4th Dept 2004]; Curanovic v New York Cent.
Mut. Fire Ins. Co., 307 AD2d 435 [3d Dept 2003]), determinations of
credibility are not properly made upon a motion for summary judgment
(Ferrante v American Lung Assn., 90 NY2d 623, 631 ; Scott v Long
Is. Power Auth., 294 AD2d 348 [2d Dept 2002]; G.L.G. Contr. Corp. v Aetna
Cas. & Sur. Co., 215 AD2d 821 [3d Dept 1995]). "On a motion for summary
judgment the court is not to determine credibility, but whether there exists a
factual issue, or if arguably there is a genuine issue of fact" (S. J.
Capelin Associates, Inc. v Globe Mfg. Corp., 34 NY2d 338 ).
In the instant case, the Court is unable to say that the statements in
Bogardus' affidavit are incredible as a matter of law, only that her failure to
include that information in her earlier deposition is questionable. That being
the case, Claimants' motion for summary judgment in their favor on the issue of
liability must be DENIED.
January 10, 2006
HON. RICHARD E. SISE
Judge of the Court of Claims
The claim of David J. Milback is derivative
in nature and, unless otherwise indicated or required by context, the term
"Claimant" shall refer to Catherine A. Milback.
In the Court's view, this is not in
significant dispute. All witnesses in a position to know acknowledge that it
was common practice for toll booth workers to watch television during their
Bogardus deposition [Bennett Affirmation, Exhibit H]; Meryl
Greene deposition, p 29 [Marmelstein Affirmation, Exhibit A], and Richard
Fitzsimmons deposition, pp 21-22 [id
. Exhibit B]). Furthermore, at least
four State employees were aware of the location of the television set on the day
Claimant was injured and there appears to be no dispute that it was placed on a
board on the top of the brochure cabinet with the cabinet doors partially