New York State Court of Claims

New York State Court of Claims

MILBACK v. THE STATE OF NEW YORK, #2006-028-506, Claim No. 109003, Motion No. M-69932


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.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
BY: Robert G. Bennett, Esq. andJames H. McGowan, Esq.
Defendant's attorney:
BY: Joel L. Marmelstein, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 10, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


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[1] 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. Carter.

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 summer.

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 cabinet.
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,[2] 2) whether 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. ¶ 5).
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 accident.

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 [1997]; 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 [1974]).

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
Albany, New York

Judge of the Court of Claims

[1] 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.
[2] 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 shifts (see 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 ajar.