New York State Court of Claims

New York State Court of Claims

ALEXANDER v. THE STATE OF NEW YORK, #2006-033-192, Claim No. 110152, Motion Nos. M-71080, M-71121, M-71820


Synopsis



Case Information

UID:
2006-033-192
Claimant(s):
KEITH ALEXANDER and MONICA ALEXANDER
Claimant short name:
ALEXANDER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110152
Motion number(s):
M-71080, M-71121, M-71820
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
John L. Juliano, P.C.By: Jonathan C. Juliano, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 29, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim arises from injuries sustained on May 20, 2004, by Keith Alexander (hereinafter "claimant") as the result of his vehicle being struck by a falling light pole while driving in the center lane of the Long Island Expressway (hereinafter “LIE”) in the Town of Islip, New York. The claim of Monica Alexander is derivative in nature.

Claimant moves (M-71080)[1] and defendant moves (M-71121)[2] for summary judgment of this matter. Claimant has also moved to amend his Bill of Particulars (M-71820)[3].

Defendant’s vehicle (a mower) was actively engaged in mowing the grass area adjacent to the LIE. In addition to the mower, another employee was at the scene in a backup truck to guard the mower against traffic. According to the testimony of John Cotty, the employee doing the mowing, he approached the pole, picked up the wing mower, put the safety bar on the wing and then drove past the light pole (claimant’s Exhibit 2, M-71080). As Mr. Cotty drove past the pole, the wing mower came into contact with the light pole. Mr. Cotty testified at his deposition that the mower shifted as it went past the pole. He stated at one point that he must have bumped the pole as he went by. Mr. Cotty gave a witness statement a few days after the accident (claimant’s Exhibit 3, M-71080). In the statement, Mr. Cotty states that as the mower shifted the safety bar unhooked and the wing mower came down and bumped the pole. After the mower came into contact with the light pole, it fell. The pole came down on claimant’s vehicle, which was in the middle lane of the LIE.

Claimant moves for summary judgment. Claimant contends that the material facts are not in dispute. Claimant argues that defendant’s behavior is clearly negligent and thus, defendant is liable for claimant’s injury.

Defendant moves for summary judgment. Defendant presents the Court with two arguments. First, defendant argues that since the vehicle was engaged in work adjacent to the highway, the standard claimant must prove is recklessness not negligence. Second, defendant argues that claimant’s injuries do not meet the threshold requirement of the Insurance Law.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

The first question to be settled is the standard which must be applied. If the standard is negligence then claimant’s motion for summary judgment must be granted. If the standard is recklessness, then the Court must examine defendant’s actions.

NYS Vehicle and Traffic Law §1103 (b) states
Unless specifically made applicable, the provisions of this title, except the provisions of sections eleven hundred ninety-two through eleven hundred ninety-six of this chapter, shall not apply to persons, teams, motor vehicles, and other equipment while actually engaged in work on a highway nor shall the provisions of subsection (a) of section twelve hundred two apply to hazard vehicles while actually engaged in hazardous operation on or adjacent to a highway but shall apply to such persons and vehicles when traveling to or from such hazardous operation. The foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons nor shall the foregoing provisions protect such persons or teams or such operators of motor vehicles or other equipment from the consequences of their reckless disregard for the safety of others.

Claimant takes a novel approach to §1103(b) by arguing the statute sets up an ordinary negligence standard as well as the reckless standard. Claimant relies on the language “[t]he foregoing provisions of this subdivision shall not relieve any person, or team or any operator of a motor vehicle or other equipment while actually engaged in work on a highway from the duty to proceed at all times during all phases of such work with due regard for the safety of all persons. . .” (emphasis added). The argument is unique but ignores the remainder of the sentence which explains that “due regard” which is owed is not to be reckless for the safety of others. (See Riley v County of Broome and Wilson v State of New York, 95 NY2d 455; Kearns v Piatt, 277 AD2d 677; Gawelko v State of New York, 184 Misc 2d 581). Thus, the standard which is to be applied to defendant’s behavior is that of recklessness.

In examining the testimony and the evidence presented by the parties, it is clear that there is no material fact still in question. Claimant for his part knows nothing other than he was driving down the road when a light pole fell on his car. Defendant’s testimony is also undisputed. Mr. Cotty was mowing the area adjacent to the highway. As he approached the light pole, the witness engaged a safety bar which became unhooked due to uneven ground. The wing mower then came into contact with the light pole which fell.

The Court finds defendant took due care to secure the wing mower as he approached the light pole with the safety of others in mind. Unfortunately, the wing mower came unhooked and caused the light pole to fall. Defendant may have been negligent in how he secured the safety bar but that does not raise this case to the standard of care needed to find defendant liable. Defendant was not reckless in his actions.

Based upon the foregoing claimant’s motion for summary judgment is denied and defendant’s motion for summary judgment is granted. The Court denies as moot M-71820.

The claim is dismissed and the Clerk of the Court is directed to close the file.


June 29, 2006
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims



[1].The following papers have been read and considered on claimants’ motion: Notice of Motion dated December 13, 2005 and filed December 19, 2005; Affidavit in Support of Keith Alexander sworn to December 16, 2005 and filed December 19, 2005; Affirmation in Support of Jonathan C. Juliano, Esq. with annexed Exhibits 1-4 dated December 13, 2005 and filed December 19, 2005; Motion Brief in Support of Jonathan L. Juliano, Esq. dated December 13, 2005 and received December 19, 2005; Reply Affirmation of John M. Shields, Esq. dated February 13, 2006 and filed February 17, 2006.
[2].The following papers have been read and considered on defendant’s motion: Notice of Motion to Dismiss dated December 28, 2005 and filed January 3, 2006; Affirmation in Opposition to Claimant’s Motion and in Support of Defendant’s Motion of John M. Shields, Esq. with annexed Exhibits A-C dated December 28, 2005 and filed January 3, 2006; Affirmation in Opposition to Defendant’s Cross-Motion of Jonathan C. Juliano, Esq. with annexed Exhibits 1-4 dated February 1, 2006 and filed February 6, 2006; Motion Brief in Opposition to Defendant’s Cross-Motion of Jonathan L. Juliano, Esq. dated February 1, 2006 and received February 6, 2006.
[3].The following papers have been read and considered on claimants’ motion: Notice of Motion dated June 1, 2006 and filed June 5, 2006.