New York State Court of Claims

New York State Court of Claims

SABILIA v. THE STATE OF NEW YORK, #2007-041-032, Claim No. 111957, Motion Nos. M-73059, M-73422


Synopsis


Summary judgment is granted as to defendant’s negligence in running over claimant with a pickup truck as claimant sunbathed at Jones Beach State Park and defendant’s motion to dismiss the claim for failing to state a total sum claimed is denied.


Case Information

UID:
2007-041-032
Claimant(s):
PETER SABILIA and STEPHANIE SABILIA
Claimant short name:
SABILIA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111957
Motion number(s):
M-73059, M-73422
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
LATOS LATOS & DiPIPPO, PCBy: Peter Latos, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
By: John L. Belford, IV, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 11, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimants move pursuant to CPLR § 3212 for summary judgment on the issue of liability, alleging that claimant Peter Sabilia (Sabilia) suffered injuries from being struck by defendant’s motor vehicle. Defendant moves to dismiss the claim for failing to state a total sum claimed as required by Court of Claims Act § 11 (b).


The claim states that Sabilia was injured on August 8, 2005, at approximately 10:09 a.m., as a result of being run over by a motor vehicle owned by the defendant and operated by John J. Fitzwilliam (Fitzwilliam). Sabilia was sunbathing on the beach at Jones Beach State Park when Fitzwilliam, an employee of the New York State Park Police, allegedly drove the defendant’s Dodge Ram pickup truck over Sabilia during a routine beach patrol. The claim demands money damages in the amount of $500,000.00.

Initially, the defendant’s motion to dismiss the claim for failing to state the total sum demanded is denied since the claim does in fact demand money damages of $500,000.00, thus satisfying the pleading requirements of Court of Claims Act § 11 (b).

The deposition testimony of Sabilia shows that he arrived at Jones Beach State Park at approximately 9:00 a.m. on August 8, 2005 to celebrate a friend’s birthday. Just prior to the accident, Sabilia was lying on a blanket listening to a relaxation tape, at a low volume, through headphones. As he lay on the beach, Sabilia could hear the chatter of people around him in addition to the sound of the ocean. His eyes were closed.

Sabilia heard a motor, lifted his head, and saw the pickup truck bearing down upon him. Although he attempted to move out of the way, the truck ran over Sabilia’s left shoulder and arm.

Fitzwilliam was on a routine patrol of the beach at the time of the accident. He was aware of a moderate number of people on the beach and observed people in the area where the accident took place. Fitzwilliam testified that prior to the accident he was looking ahead of his vehicle and “noticed people around.” He testified that he was traveling between three and five mph just before the accident.

Fitzwilliam further testified that immediately prior to the accident he noticed a large hole ahead of him and tried to avoid it. At his deposition, he did not recall the size or depth of the hole. When asked to describe the accident, Fitzwilliam stated as follows:
“We were driving down the beach, just patrolling as normal and I heard somebody yell. I stop the truck. I looked behind, I saw a gentleman stand up and he said you ran over my arm. It took seconds to think about it, because I didn’t -- you know, I didn’t remember seeing somebody there.”

Fitzwilliam admitted that he never saw Sabilia prior to the accident.

“A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. . . . If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment” (Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]; see Svoboda v Our Lady of Lourdes Memorial Hospital, Inc., 31 AD3d 877 [3d Dept 2006]).

The court’s role on a motion for summary judgment is issue finding, not issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002]; Schaufler v Mengel, Metzger, Barr & Company, LLP, 296 AD2d 742, 743 [3d Dept 2002]) and where a genuine issue of fact exists, the motion must be denied (Fleet Bank v Tiger Racquet Fitness and Exercise Center, Inc., 255 AD2d 793, 794 [3d Dept 1998]).

Sabilia offers unrebutted proof that he was lawfully using the beach, owned and maintained by defendant, in a manner surely intended by defendant, when the vehicle owned by defendant and operated by defendant’s employee, ran over him. Additionally, Fitzwilliam admits that he never saw Sabilia lying on the beach prior to the accident. “A driver is negligent if he or she has failed to see that which, through the proper use of senses, should have been seen” (Berner v Koegel, 31 AD3d 591, 592 [2d Dept 2006]; see Ferrara v Castro, 283 AD2d 392 [2d Dept 2001]).

“In opposition to a motion for summary judgment a party must assemble and lay bare affirmative proof to establish that genuine material issues of fact exist. Only the existence of a bona fide issue raised by evidentiary fact rather than one based on conclusory or irrelevant allegations, will be sufficient to defeat a motion for summary judgment where the movant has made out a prima facie basis for the granting of the motion” (Archambault v Martinez, 120 AD2d 632, 632-633 [2d Dept 1986]). Further, “mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” to defeat a motion for summary judgment (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

In opposing the claimants’ motion, defendant argues that a factual issue exists as to Sabilia’s “contributory negligence.” Specifically, defendant argues that by closing his eyes and wearing headphones, Sabilia had “shut out all external stimuli, impairing his ability to observe his surroundings.” This line of argument, involving a bather relaxing on a beach in the middle of summer, is, to put it mildly, not terribly persuasive.

It is difficult to conceive of a public place other than a beach where it would have been more reasonable and appropriate for Sabilia to have closed his eyes while lying on a blanket and listening to a relaxation tape via headphones. This is precisely why defendant operates Jones Beach State Park: So that people can spend a few hours relaxing and enjoying the beach without obligation to be on the lookout for carelessly operated motor vehicles.

Defendant also urges that Sabilia could have somehow done something more to avoid the approaching truck, but did not. Defendant’s reliance upon speculation, rather than producing evidentiary facts showing that Sabilia had the time and means to avoid being run over, is insufficient to raise a factual issue.

In sum, defendant’s conclusory assertions that Sabilia “could have taken some unspecified action to avoid the accident or that he somehow contributed to its cause” (White v Gooding, 21 AD3d 485 [2d Dept 2005]) raise no issues of fact concerning allocation of negligence.

The defendant’s motion to dismiss the claim is denied and claimants’ motion for summary judgment, to the extent it concerns establishment of defendant’s sole negligence in causing the accident, is granted.

July 11, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Claimants’ Notice of Motion, filed March 14, 2007;
  2. Affirmation of Peter Latos, dated March 12, 2007, with annexed exhibits;
  3. Affirmation in Opposition of John L. Belford, IV, dated May 2, 2007;
  4. Defendant’s Notice of Motion to Dismiss, filed May 10, 2007;
  5. Affirmation of John L. Belford, IV, dated May 8, 2007, with annexed exhibit;
  6. Affirmation in Opposition of Peter Latos, dated June 26, 2007, with annexed exhibits.