New York State Court of Claims

New York State Court of Claims

ACRITANI v. THE STATE OF NEW YORK, #2006-033-196, Claim No. 109349, Motion No. M-71180


Synopsis



Case Information

UID:
2006-033-196
Claimant(s):
STEVEN ACRITANI
Claimant short name:
ACRITANI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109349
Motion number(s):
M-71180
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Cartier, Bernstein, Auerbach & Dazzo, P.C.By: George T. Ostrowski, Jr., Esq.
Defendant’s attorney:
The Law Offices of Michael F.X. ManningBy: Jozef K. Goscilo, Esq.
Third-party defendant’s attorney:

Signature date:
September 27, 2006
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a claim for damages arising from the alleged personal injuries of Steven Acritani (hereinafter "claimant") sustained on August 22, 2003 as the result of a trip and fall on Route 24 in the Town of Southampton, New York.

Defendant moves for summary judgment to dismiss this matter pursuant to CPLR 3212[1]. Defendant argues that it did not have any notice of a possible dangerous condition, either actual or constructive. Defendant further supports his argument with testimony that barrels were put out every day as crews left the construction area.

In opposition, claimant argues that the defendant created a dangerous condition and failed to adequately warn the public about the dangerous condition.

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).

From the evidence presented to the Court, it is clear that significant issue of fact exist in regard to whether or not a dangerous condition existed and what safety precautions defendant took on the date of the accident. The only way to determine the outcome of this matter is to allow the parties to present their evidence at trial.

Based upon the foregoing, defendant’s motion to dismiss and for summary judgment is denied.


September 27, 2006
Hauppauge, New York

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




[1].The following papers have been read and considered on defendant’s motion: Notice of Motion dated January 12, 2006 and filed January 17, 2006; Affirmation of Jozef K. Goscilo, Esq. with annexed Exhibits A-Q dated January 12, 2006 and filed January 17, 2006; Affidavit of Thomas Connolly sworn to January 11, 2006 and filed January 17, 2006; Affidavit of Michael A. Petronzio sworn to December 22, 2005 and filed January 17, 2006; Affidavit of Thomas Connolly sworn to January 4, 2006 and filed January 17, 2006; Memorandum of Law of Jozef K. Goscilo, Esq. dated January 12, 2006 and received January 17, 2006; Affirmation in Opposition of George T. Ostrowski, Jr., Esq. dated April 5, 2006 and filed April 7, 2006; Reply Affirmation of Jozef K. Goscilo, Esq., dated May 8, 2006 and filed May 8, 2006.