New York State Court of Claims

New York State Court of Claims

GOLDSTEIN v. THE STATE OF NEW YORK, #2006-030-570, Claim No. 109183, Motion No. M-71645


Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
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:
September 7, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 6 were read and considered on Defendant’s motion for summary judgment dismissing the claim:
1,2 Notice of Motion; Affirmation in Support by Vincent P. Pozzuto, Attorney for Defendant and attached exhibits

  1. Affirmation in Opposition by Steven C. Rauchberg, Attorney for Claimant and attached exhibits
  1. Reply Affirmation by Vincent P. Pozzuto and attached exhibits
5,6 Filed papers: Claim, Answer

This claim arises out of a car accident occurring on the Horace Harding Expressway at or near its intersection with Douglaston Parkway on January 27, 2003. Barbara Goldstein was a passenger in a motor vehicle driven by Irene Davis involved in a head-on collision with another motor vehicle. She alleges she was injured due to the State’s negligence in failing to, among other things, properly design and label detour signs and otherwise re-route traffic near a construction site, and to otherwise maintain, repair and/or design the highway and construction areas on the expressway.
Summary Judgment

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). While it is not the best practice, the use of an attorney’s affirmation appending pertinent deposition testimony, documentary evidence, and a verified pleading reciting material facts, is not a fatal procedural flaw in a presentation. Alvarez v Prospect Hospital, 68 NY2d 320, 325 (1986).[2]

As an initial matter, the Court will treat the motion as adequately supported.

In this case, however, all that has been established by the voluminous presentations of both the Defendant and the Claimant is that there are triable issues of fact requiring resolution at a plenary trial. The deposition testimony of the driver - the evidence primarily relied on by Defendant - is not conclusive of any issues regarding the State’s liability, or of the related issue of the driver’s comparative fault. Although certainly the driver’s apparent misunderstanding that she was traveling on a one-way road will be important, how that misunderstanding arose may well be chargeable to the State at a fully developed trial. Notably, in Perry v Kazolias, 302 AD2d 575, 576 (2d Dept 2003), a case relied on by Defendant, the driver’s familiarity with the road and excessive speed were viewed as “. . . sever[ing] . . . any connection between the Town’s alleged negligence and the happening of the accident (citations omitted) . . . since . . . [the driver] was familiar with the roadway and the approaching 90-degree turn, the absence of additional warning signs could not be a proximate cause of the accident . . . (citations omitted).” See also Rose v State of New York, 19 AD3d 680 (2d Dept 2005). While apparently the driver had some familiarity with the area, familiarity alone does not conclude the matter. Given that this was a construction site involving lane shifts and reductions, whatever familiar configuration the roads possessed may have been lost.

Accordingly, Defendant’s motion for summary judgment [M-71645] and for dismissal of the within claim is hereby denied. Trial of the matter on the issue of liability will go forward as scheduled.

September 7, 2006
White Plains, New York

Judge of the Court of Claims

[2].“A fair reading of the attorney’s affirmation, the hospital records and the defendant’s deposition testimony compel the conclusion that no material triable issues of fact exist as to the claims of malpractice asserted against the defendant in the amended complaint as amplified by the bill of particulars. The fact that defendant’s supporting proof was placed before the court by way of an attorney’s affirmation annexing deposition testimony and other proof, rather than affidavits of fact on personal knowledge, is not fatal to the motion . . . (citations omitted).”