New York State Court of Claims

New York State Court of Claims

TERRAZAS v. STATE OF NEW YORK, #2008-018-624, Claim No. 111185, Motion Nos. M-74449, CM-74582


Synopsis


Claimant has failed to establish, as a matter of law, that defendant’s design and planning decisions for the Route 13 and Route 215 intersection and surrounding area are not subject to qualified immunity, nor that the State had notice of a dangerous condition requiring a review of its planning decisions. The admissible submissions establish critical factual discrepancies which cannot be resolved by motion.


Defendant’s cross-motion for summary judgment must also be denied. Defendant argues that even if the State does not have qualified immunity under Weiss v Fote, 7 NY2d 579, for its planning and design decisions, it is claimant’s burden to show that the State had actual or constructive notice of a dangerous condition. The State provides an affidavit of from the Regional Traffic Engineer for Region 3 which includes Cortland County. It states that there were no pedestrian or bicycle accidents for the five years prior to claimant’s accident. Defendant did not provide a proper foundation for the basis of the engineer’s position; nonetheless, even if the Court were to accept this information, the Court cannot rule, as a matter of law, that the State did not have notice. There were some prior accidents and pedestrian safety issues raised with the Department of Transportation (DOT) before claimant’s accident

Case Information

UID:
2008-018-624
Claimant(s):
ELIZABETH TERRAZAS
Claimant short name:
TERRAZAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111185
Motion number(s):
M-74449
Cross-motion number(s):
CM-74582
Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
SHAW LAW FIRMBy: William R. Shaw, Esquire
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: Edward F. McArdle, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 9, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant makes a motion for partial summary judgment. Defendant cross-moves for

summary judgment.

The claim seeks damages for claimant’s serious injuries as a result of being struck by a vehicle while crossing Tompkins Street, also known as New York State Route 13, in the City of Cortland on August 2, 2003. Claimant alleges the State was negligent in not providing a convenient crosswalk at the intersection of Route 13 and New York State Route 215 or installing a traffic light or stop sign at that location. The only existing crosswalk location was some distance from the intersection with Route 215.

Claimant submitted the following with her motion:

Defendant, in response to claimant’s motion and in support of its cross-motion for summary judgment, objects to the Court’s consideration of a number of claimant’s supporting documents on the ground that they are not in admissible form.

The Court shall address this issue first as it affects what the Court may consider in determining the substantive issue of summary judgment. On a motion for summary judgment, the movant has the burden to establish its right to judgment as a matter of law by proof in admissible form (Friends of Animals v Assoc. Fur Mfrs., 46 NY2d 1065, 1067-1068). Claimant, as a party seeking summary judgment, has the burden to come forward with proof in admissible form to make out a prima facie case showing her entitlement to judgment as a matter of law (Zuckerman v City of New York, 49 NY2d 557, 562). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Alvarez v Prospect Hosp., 68 NY2d 320, 324). In reviewing claimant’s submissions, the following are in admissible form in support of claimant’s motion:

The Court has accepted the report of John M. Curatolo with the submitted affidavits of Attorney William R. Shaw sworn to March 25, 2008, and John M. Curatolo sworn to March 21, 2008. Although they were submitted subsequent to the original motion, the delay was due to Mr. Curatolo’s military service in Jalalabad, Afghanistan, resulting in difficulty obtaining his notarized signature on the affidavit which describes his credentials and establishes the foundation for the admissibility of his report.

The deposition transcript of John D. Traphagen taken May 15, 2007, is unsigned without any proof that it was forwarded to Mr. Traphagen for his review (Pina v Flik Intl. Corp., 25 AD3d 772, 773). All other submissions from claimant were not presented in admissible form at the time claimant served and filed her motion for summary judgment. Although additional submissions were made in reply to defendant’s objections, deficiencies presented on a motion for summary judgment cannot be cured by reply documentation (Osborne v Zornberg, 16 AD3d 643, 645; Jackson-Cutler v Long, 2 AD3d 590; KXK Foods Corp. v Ta-Chiun Chou, 16 Misc 3d 1111[A]).

Based upon the admissible submissions, the Court finds that claimant has failed to establish, as a matter of law, that defendant’s design and planning decisions for the Route 13 and Route 215 intersection and surrounding area are not subject to qualified immunity, nor has claimant established that the State had notice of a dangerous condition requiring a review of its planning decisions.

Moreover, the admissible submissions establish critical factual discrepancies which cannot be resolved by motion. Claimant testified that she stopped on the curb to cross Tompkins Street (Route 13) to return to her apartment at roughly the same location that she had crossed earlier to go to the store. She described noticing a car on her right which was turning. Claimant testified that she looked down for a minute and then back up and both ways before she stepped off of the curb into the parking lane. She then saw a car coming on her left and she hurried to get out of the way to avoid being hit. Turning to her right, she saw an SUV coming toward her, she put her arm out and heard a strange noise that she described like a tape player being played backwards as she was being struck by the vehicle. Claimant was not walking in a crosswalk. She testified that she only saw the SUV approximately three seconds before she was struck.

Robin Alexander, the driver of the vehicle that was stopped on the corner of Owego Street (Route 215) and Tompkins Street (Route 13) waiting to make a right-hand turn, testified at the City Court trial. While stopped, she noticed a car coming toward her from her left and she noticed a young woman, claimant, getting ready to step onto Tompkins Street. Ms. Alexander testified that claimant had something like mail in her hands. She did not recall claimant looking both ways. She saw the car coming toward her vehicle and she saw claimant begin to walk out into the path of the oncoming car. Ms. Alexander thought that vehicle was going to hit claimant but it swerved to the right around claimant. As claimant proceeded across the road, Ms. Alexander saw the green truck come up the street and hit claimant.

Rosanne Kawak, another witness to the accident who testified during the City Court trial, was driving on Tompkins Street (Route 13) proceeding toward downtown. She testified that it was a beautiful day, she had her windows down, and the radio on when she noticed a girl to her right walking on the sidewalk and proceeding to slowly cross the street. Ms. Kawak did not know for sure whether claimant stopped at the curb before she began to cross the street but recalled that claimant was looking down, as if she was she was reading something like mail or a paper.

Ms. Kawak testified that there was no traffic in front of her in her lane, although there was one car coming toward her in the opposite lane. Claimant just proceeded in a straight line without looking, crossing Ms. Kawak’s lane proceeding to the yellow line. Ms. Kawak testified that she thought to herself that the other car was going to hit claimant and she contemplated blowing her horn, but she was afraid she would scare claimant. As claimant was hit there was a loud thud and she went up in the air.

Whether claimant looked both ways before crossing the street, whether there was a car coming to her immediate left that had to swerve to avoid her, or whether claimant had time to walk across that lane before being stuck by Mr. Traphagen’s vehicle are relevant factual issues critical to assessing proximate cause. Ms. Kawak’s testimony regarding where she was and how she avoided claimant after claimant was hit adds other factual issues that must be decided at trial.

Because these issues exist, the defendant’s proximate cause argument on its cross-motion for summary judgment must fail as well.

It is not the place of the Court on a motion for summary judgment to determine which witness’s account is accurate (see Knepka v Tallman, 278 AD2d 811; Furlong v Storch, 132 AD2d 866, 868). Summary judgment, as is often said, is a drastic remedy which should only be granted where there are no issues of fact and the claim can be decided as a matter of law (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395). Where there is any doubt as to the existence of factual issues the motion should be denied (Id. at 404; Halbina v Brege, 41 AD3d 1218, 1219).

Defendant’s cross-motion for summary judgment must also be denied. Defendant argues that even if the State does not have qualified immunity under Weiss v Fote, 7 NY2d 579, for its planning and design decisions, it is claimant’s burden to show that the State had actual or constructive notice of a dangerous condition. The State provides the affidavit of Diana Graser, Regional Traffic Engineer for Region 3, which includes Cortland County. Ms. Graser provides that there were no pedestrian or bicycle accidents for the five years prior to claimant’s accident. Defendant did not provide a proper foundation for the basis of Ms. Graser’s position; nonetheless, even if the Court were to accept this information, the Court cannot rule, as a matter of law, that the State did not have notice. There were some prior accidents and pedestrian safety issues raised with the Department of Transportation (DOT) before claimant’s accident (see Lawrence Levine Report and foundational affidavit of Lawrence Levine sworn to on March 21, 2008; and Shaw Affidavit, sworn to on March 25, 2008, Exhibit F, Letter of John E. Fietze, P.E., dated July 14, 2003).

Whether these accidents or inquiries are close enough or similar enough to the issues at bar to have placed the State on notice of a dangerous condition remains to be determined at a trial (see e.g., Kerns v State of New York, 226 AD2d 1046 [accidents over 10 years sufficient to place defendant on notice]; c.f. Ritter v State of New York, 74 Misc 2d 80, 89 [on other accident too remote in time]).

Based upon the foregoing, claimant’s motion is denied and defendant’s cross-motion is also denied.






June 9, 2008
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding these motions:


Motion No. M-74449


1. Notice of Motion

2. Affidavit of William R. Shaw, Esquire, sworn to January 17, 2008.


3. Memorandum of Law: Claimant’s motion for partial summary judgment.

4. December 12, 2003 trial transcript from Cortland City Court in People v Elizabeth Terrazas.

5. Claimant’s testimony from the General Municipal Law § 50-h hearing on May 14, 2004.

6. Deposition transcript of Elizabeth H. Proctor Terrazas in the action Terrazas v Traphagen taken May 15, 2007.
7. Report of John M. Curatolo with the submitted affidavits of William R. Shaw, Esq., sworn to March 25, 2008, and John M. Curatolo sworn to March 21, 2008.

8. Lawrence Levine Report and foundational affidavit of Lawrence Levine sworn to on March 21, 2008.

9. Letter of John E. Fietze, P.E., dated July 14, 2003


10. Folder containing photographs in support of claimant’s motion.


Cross-Motion No. CM-74582

11. Notice of Cross-Motion.

12. Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, dated February 26, 2008, in opposition to claimant’s motion for summary judgment and in support of defendant’s cross-motion with exhibits attached thereto.

13. Defendant’s Memorandum of Law opposing claimant’s motion for summary

judgment and in support of defendant’s cross-motion for summary judgment.

14. Claimant’s Memorandum of Law in opposition to defendant’s motion for summary judgment and to supplement claimant’s motion for partial summary judgment.


15. Affidavit of William R. Shaw, Esq., in opposition to defendant’s motion

for summary judgment, sworn to March 25, 2008, with exhibits attached

thereto.