New York State Court of Claims

New York State Court of Claims

BERETEH v. THE STATE OF NEW YORK, #2006-028-512, Claim No. 110359, Motion Nos. M-70281, CM-70475


Synopsis



Case Information

UID:
2006-028-512
Claimant(s):
ALIE BERETEH The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
BERETEH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110359
Motion number(s):
M-70281
Cross-motion number(s):
CM-70475
Judge:
RICHARD E. SISE
Claimant's attorney:
TALLER & WIZMAN, P.C.BY: Regis A. Gallet, Esq.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Diana Dykes, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 3, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In deciding the following series of motions, the Court has read and considered the following papers:
(1) Notice of Motion for Summary Judgment on the issue of liability dated June 6, 2005 and filed on June 9, 2005;

(2) Affirmation of Regis A. Gallet, Esq., in support of the motion, dated June 6, 2005 and filed on June 9, 2005, together with Exhibits "A-C";

(3) Notice of Cross-Motion to Dismiss, dated July 26, 2005 and filed on July 27, 2005;

(4) Affirmation in Support of Cross-Motion and in Opposition to the Motion of Assistant Attorney General Diana Dykes, Esq., dated July 26, 2005 and filed on July 27, 2005, together with Exhibits "A-C";

(5) Affirmation in Opposition to Cross-Motion of Regis A. Gallet, Esq., dated July 28, 2005 and filed on August 12, 2005, together with Exhibits "A" and "B";

(6) Reply Affirmation of Assistant Attorney General Diana Dykes, Esq., dated September 23, 2005 and filed on September 27, 2005, with Exhibit "A" annexed.

The Claim herein seeks damages for personal injuries resulting from a motor vehicle collision between an auto of the Claimant, Alie Bereteh, and one driven by Terrance Revella, an employee of the New York State Department of Environmental Conservation. The Claimant, Mr. Bereteh, alleges that the driver of the State vehicle disregarded a stop sign and collided with his vehicle (Notice of Motion, Exhibit "C").

In seeking summary judgment, the attorney for the Claimant argues that the Defendant's driver violated VTL §1142(a) and that the Claimant is entitled to summary judgment (Affirmation of Regis A. Gallet, Esq., pp 2-3).

In opposition to the Motion, the Defendant submitted the Affidavit of Terrance Revella, the driver of the State's vehicle, who states that he had stopped at the stop sign, proceeded through the intersection and was then hit by the Claimant's vehicle, which had crossed a solid double yellow line (Reply, Exhibit "A").

The rule governing motions for summary judgment is well established that the movant must make a prima facie showing of entitlement to judgment as a matter of law, eliminating any material issues of fact from the case (Winegrad v New York University Medical Center, 64 NY2d 851, 853). The function of the Court on such a motion is to determine if a material issue of fact exists, after examining the proof in a light most favorable to the opposing party (Iwaszkiewicz v Callanan Indus., Inc., 258 AD2d 776). If a material issue of fact is found, the Court should deny the motion (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395).

After reviewing the papers submitted in support of the motion and in opposition to it, the Court finds a material issue of fact exists as to causation. Accordingly, the Claimant's Motion for Summary Judgment is denied.

In cross-moving for dismissal, the State submits a two-prong assault on the Claim: (1) it fails to comply with Court of Claims Act §11, in that it fails to state the manner in which the Defendant was negligent, as well as failing to contain a specific description of the site of the accident (Affirmation of Diana Dykes, Esq. in Support of Cross-Motion and in Opposition to Claimant's Motion, pp 3-4 [unpaginated]); (2) that the Claimant has failed to allege that he suffered a "serious injury" as required by Rule 3016(g) of the Civil Practice Law and Rules (Affirmation of Diana Dykes, Esq. in Support of the Cross-Motion and in Opposition to Claimant's Motion, pp 5-6 [unpaginated]).

The Claimant contends that he has complied with the requirements of Section 11 in that he has stated the place where the accident occurred and the nature of the accident.

The purpose of Section 11 of the Court of Claims Act is to provide a sufficiently detailed description of the particulars of the Claim to enable the State to investigate and promptly ascertain the existence and extent of its liability (Sinski v State of New York, 265 AD2d 319). What is not required is absolute exactness, but rather a simple statement that will permit the State to assess its liability and prepare a defense (Heisler v State of New York, 78 AD2d 767; Harper v State of New York, 34 AD2d 865).

Here the Claim indicates that the accident occurred on October 15, 2004 at approximately 9:10 a.m. at West Thames Street and Battery Place. It further states the driver of the other vehicle was Terrance Revella, and that the vehicle had a New York license plate, #CSS 2963, and was driven in a negligent and reckless manner (Exhibit "A" annexed to Notice of Motion).

The Court finds that the statements are sufficient to give the State an opportunity to investigate the accident and the manner in which it occurred.[1] Further, there exists an issue of fact as to how the accident occurred. The State's reference to the Motor Vehicle Accident Report (Exhibit "C" annexed to the Notice of Cross-Motion) is not controlling on this issue since the maker of the report, P.O. J. Stewart, based the report upon the accident description given by Mr. Revella, its own driver. The factual sequence of the accident is described in a different manner by the Claimant.

Based upon the above, the branch of the Defendant's Cross-Motion seeking to dismiss for failure to comply with §11 of the Court of Claims Act is denied.

On the remaining issue, whether the Claim must be dismissed because the Claimant has failed to recite the talismanic phrase "serious injury", the Court chooses substance over form. The Claim provides that the Claimant suffered multiple bodily injuries which included injuries to his head, neck, back and knees, and that these injuries caused him to be absent from work. He also alleges that property damage to him was approximately $20,000 (Exhibit "A" annexed to the Notice of Motion). The State, in its papers, states conclusively: "[t]hese non-specifically alleged injuries do not constitute serious disability or impairment under the law" (Affirmation in Support of Cross-Motion and in opposition to Claimant's Motion, p 6 [unpaginated]). The papers do not challenge that these injuries occurred or that the damage to the car was not as alleged. The sole basis appears to be that the Claimant did not recite the statutory phrase.

Although the Court would have preferred to have had the phrase "serious injury" or have had a more complete description of the injuries contained within the Claim, it finds that the description provided falls within the parameter of serious personal injury. This conclusion has been further bolstered by the Affidavit of Claimant, wherein he alleges that he has suffered a "serious personal injury" which he contends is permanent (Exhibit "C" annexed to Notice of Motion) Sanders v Rickard, 51 AD2d 260; Schenk v State of New York, Ct Cl, unreported decision and order dated March 7, 2001, Corbett, J., Claim No. None, Motion No. M-60539.

Accordingly, the Cross-Motion to Dismiss is denied without prejudice to the Defendant to move for Summary Judgment after all discovery is complete or to dismiss at trial after the Claimant has presented his case.



February 3, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Claimant's Affidavit further amplifies the negligent act of the State's driver as having failed to stop at a stop sign (Exhibit "C" annexed to Notice of Motion).