New York State Court of Claims

New York State Court of Claims

MELKUN v. THE STATE OF NEW YORK, #2006-030-505, Claim No. 106432, Motion No. M-70831


Case Information

BENJAMIN F. MELKUN, JR., as Executor of the Estate of MARILYN R. MELKUN, Deceased
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:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
January 24, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 9 were read and considered on Defendant's motion

for summary judgment dismissing the Claim:

1-4 Notice of Motion; Attorney Affidavit by Michael T. Snyder, attorney for the Defendant and attached exhibits; Affidavit of John A Serth Jr. P.E. and attached exhibit; Memorandum of Law

  1. Affirmation in Opposition by Andrew L. Spitz, attorney for Claimant and attached exhibits
  1. Attorney Affidavit in Reply by Michael T. Snyder, Attorney for Defendant
7-8 Filed papers: Claim, Answer

This is a claim for the wrongful death and conscious pain and suffering of Marilyn R. Melkun, brought by her representative Benjamin F. Melkun, Jr., Claimant. Mr. Melkun alleges that on September 29, 2001 at approximately 3:10 p.m. on Route 343 in the area of the Harlem Valley Rail Trail (hereafter Rail Trail) and TR Mygatt Road in Amenia, New York a motor vehicle driven westbound on Route 343 by Margaret Lang collided with Marilyn R. Melkun, who was bicycling northeast along the trail, because of various alleged negligent acts or omissions by the Defendant's agents, in allowing a dangerous condition to exist at the location. In its Answer, in addition to general denials, Defendant asserts six (6) affirmative defenses. A Verified Bill of Particulars alleges various failures of design both on Route 343 and the Rail Trail in the area of TR Mygatt Road where the accident occurred including unsafe speed limits and lack of proper warnings.

In the field of highway safety planning, a municipality is immune from liability for negligence for acts involving discretion unless its plan or design was adopted without adequate study or lacked a reasonable basis. See Tomassi v Town of Union, 46 NY2d 91, 97 (1978); Weiss v Fote, 7 NY2d 579, 589, (1960), rearg denied 8 NY2d 934 (1960); James v New York State Bridge Authority, 295 AD2d 316 (2d Dept 2002). A governmental body may be held liable only when its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan. Friedman v State of New York, 67 NY2d 271, 284 (1986). Assuming that immunity does not apply, Claimant would nonetheless need to show that it was the State's omissions or acts that were a proximate cause of the decedent's accident. An underlying factual showing of how the accident occurred is impliedly required.

Defendant moves for summary judgment dismissing the claim, arguing that it has established that there are no triable issues of fact, and the State is entitled to immunity for highway planning decisions made with respect to the intersection of Route 343 and the Rail Trail based upon the submitted pleadings, deposition transcripts, discovery documents - including the police accident report - and the affidavit of John A. Serth, Jr., P.E., Defendant's expert engineer in the field of accident reconstruction and highway design. Additionally, Defendant contends that there is no nexus between any alleged defects or conditions and the happening of the accident. Claimant asserts that issues remain, among others, concerning the adequacy of any study and design and the duty to review an otherwise adequate plan in light of actual operation, inadequate signage and traffic control devices on both Route 343 and the Rail Trail, and comparative fault as between the State, other municipalities, the driver and the decedent.
Civil Practice Law and Rules §3212(b) provides in pertinent part:
. . . A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party . . . the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion.
Assuming a movant has made a prima facie showing of entitlement to judgment as a matter of law by proffering sufficient evidence to eliminate any genuine material issues of fact, the party in opposition to the motion for summary judgment must tender evidentiary proof in admissible form to establish the existence of material issues which require a trial. Winegrad v New York University Medical Center, 64 NY2d 851 (1985); Zuckerman v City of New York, 49 NY2d 557 (1980).

Generally, unsworn affidavits and the hearsay contents of police accident reports are not considered evidentiary proof in admissible form, with some exceptions. See Vaden v Rose, 4 AD3d 468, 469(2d Dept 2004); Donovan v West Indian American Day Carnival Assoc. Inc., 6 Misc 3d 1016(A) (Sup Ct, Kings County 2005). Indeed proof that might be inadmissible at trial may be considered in opposition to a motion for summary judgment under some circumstances. Phillips v Kantor & Co., 31 NY2d 307, 316 (1972); Guzman v Strab Construction Corp., 228 AD2d 645, 646 (2d Dept 1996); Zuilkowski v Sentry Ins. A Mutual Company, 114 AD2d 453, 454 (2d Dept 1985).

It goes without saying that the decedent cannot say what happened. No deposition by the driver of the car, Margaret Lang, has been presented by either Defendant or Claimant and both counsel indicate that she has never been deposed. While arguing that any statement purportedly made by Ms. Lang noted in the police accident report would be inadmissible hearsay, Claimant's counsel also indicates that it is the driver's attorneys who "have declined to produce her for deposition allegedly because of her medical condition, advanced age, and lack of any memory as to the accident . . ." [Affirmation by Andrew L. Spitz, Attorney for Claimant, ¶5].

The statement in the police accident report by the driver of the car to the effect that she was familiar with the intersection of Route 343 and the Rail Trail, slowed down at the intersection and, seeing no one approaching on the Rail Trail, proceeded forward, is not an admission against interest, but it is a statement by someone who, for all intents and purposes is now equally unavailable to Claimant and Defendant. The police accident report also refers to a statement made by a 13 year old girl who was bicycling behind the decedent. There is no indication that she - or the grandparents with whom she was bicycling - were ever deposed, nor is any rationale given as to why no deposition has been offered by either side of these apparently additional witnesses to at least a part of the events leading up to the accident.

Notably, in the expert affidavits proffered by both parties, the respective expert relies in part on the same police accident report to form his opinion. [See Affidavit by John A. Serth, Jr. P.E., ¶2; Affidavit by Robert Genna, ¶5]. Thus for the purpose of the summary judgment motion, the police accident report will be treated nominally as admissible evidence.

With respect to the balance of Defendant's submission, however, Defendant's initial burden is still not met.

Glen Boucher, a regional highway work permit coordinator for the New York State Department of Transportation (hereafter DOT) testified at an examination before trial that he had visited the site prior to approval of a permit, and made modifications to proposed plans to ensure that there would be compliance with State requirements. [Affidavit by Michael T. Snyder, Exhibit F]. His testimony somewhat begs - but does not conclude - the question as to whether there was adequate study of this intersection prior to implementation of the plan. Although the deposition testimony of John Cummins, an assistant resident engineer for the DOT, is appended to the motion, it is not addressed in the moving papers. [Ibid. Exhibit G]. Mr. Cummins was involved in, among other things apparently, the inspection of road construction and improvement projects in the applicable region, and explained at his deposition that part of the responsibilities of his crew would include patrolling for potholes along Route 343, repairing guide rails, if any, and assuring that signs were where they were supposed to be. [Id.].

Presumably appending the depositions of these witnesses, with nominal or no explanation, is in support of Defendant's position that qualified immunity applies. The best that can be said from a review of these depositions is that the DOT was involved in some part of the decision making process, but without more this does not eliminate all issues concerning the adequacy of the study - if the actions described by the witnesses constitute "study" - whether the plans have a reasonable basis, or whether plans were reviewed thereafter in light of actual use. Where affidavits or other evidence are contradictory, or support conflicting inferences, or raise credibility issues, summary judgment should not be granted. Lacagnino v Gonzalez, 306 AD2d 250 (2d Dept 2003).

Finally, the affidavit by Defendant's expert does not establish entitlement to judgment dismissing the claim as a matter of law. [Affidavit of John A. Serth, Jr., P.E.]. In addition to an inspection of the accident site on September 19, 2005, Defendant's expert recites other information he reviewed, including the police accident report, the pleadings, Claimant's expert disclosure, photographs of the accident scene, deposition transcripts of Glen Boucher, John Cummins, Francine DiGrandi from the County of Dutchess, Julia Bouffard from the Town of Amenia, Richard Hermans, from the Harlem Valley Rail Trail Association, photographs depicting Route 323 (sic) and the Harlem Valley Rail Trail, copies of DOT photo logs depicting Route 343 in the area where the accident occurred, and work permit documents from the DOT and the Dutchess County Department of Public Works and renders his opinion. Again, although reference is made to what materials he reviewed in his affidavit, without a nexus between the factual elements and the opinions he then renders, the opinions are merely conclusory and insufficient to establish a prima facie case for dismissal of the claim as a matter of law.

As noted by Counsel for Claimant, if the initial showing on a motion for summary judgment is insufficient, then even if papers submitted in opposition are inadequate the motion for summary judgment should be denied. The Court does not, therefore, reach issues surrounding the applicability of the so-called Noseworthy doctrine, although same may be implicated at trial. See Noseworthy v City of New York, 298 NY 76 (1948); but see Agius v State of New York, 50 AD2d 1049, 1050 (3d Dept 1975)[1]

Accordingly, Defendant's motion for summary judgment [M-70831] is in all respects denied, as the State has failed to meet its burden of showing by evidentiary proof in admissible form that the cause of action has no merit. Based only upon the presentation made by Defendant, there are triable issues of fact requiring a plenary trial.

January 24, 2006
White Plains, New York

Judge of the Court of Claims

[1] "Speculation, guess and surmise, however, may not be substituted for competent evidence, and where, as here, there are several possible causes of an accident, one or more of which a defendant is not responsible for, a plaintiff cannot recover without proving that the injury was sustained wholly or in part by a cause for which the defendant was responsible (Stuart-Bullock v State of New York, 38 AD2d 626, aff'd 33 NY2d 418, and cases cited therein). In order to be entitled to recovery, the claimant must establish negligence and proximate cause . . . "