DAVIDSON v. THE STATE OF NEW YORK, #2008-031-005, Claim No. 108822, Motion Nos.
Claimant was injured in an automobile accident when the driver of the car in
which he was traveling allegedly lost control on snow and ice, left his lane of
travel and collided with another car. Claimant alleges that Defendant was
negligent for failing to install a snow fence along the stretch of road where
the accident occurred. Defendant, whose submission indicates that it had
neither notice of the alleged defective condition, nor permission from the owner
of the adjacent property to put up a snow fence, has met its burden of
demonstrating that it is entitled to summary judgment as a matter of law. Claim
dismissed. Defendant’s motion to compel discovery is denied as moot
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
RENÉE FORGENSI MINARIK
CHARLES T. NOCE, ESQ.
HON. ANDREW M. CUOMO
New York State Attorney
BY: JAMES L. GELORMINI,
ESQ.Assistant Attorney General
February 4, 2008
See also (multicaptioned
The following papers, numbered 1 through 14, were read on motion by Defendant
for an order compelling discovery and on a second motion by Defendant for
Defendant’s Notice of Motion (M-73515), filed June 5, 2007;
2) Affirmation of James L. Gelormini, Esq., dated June 4, 2007, with attached
3) Affidavit of Charles T. Noce, Esq., sworn to June 12, 2007;
4) Defendant’s Notice of Motion (M-73664), filed July 3, 2007;
5) Affirmation of James L. Gelormini, Esq., dated July 2, 2007, with attached
6) Affidavit of Lawrence Mobilio, sworn to February 21, 2007, with attached
7) Affidavit of J. Jeffrey Dunlap, sworn to June 29, 2007, with attached
8) Affidavit of David Krenzer, sworn to February 22, 2007;
Defendant’s Memorandum of Law, dated July 2, 2007;
10) Affidavit of Charles T. Noce, Esq., sworn to August 7, 2007;
11) Claimant’s Memorandum of Law, dated August 7, 2007.
12) Reply Affirmation of James L. Gelormini, Esq., dated August 14, 2007;
13) Reply Affidavit of Lawrence Mobilio, sworn to August 9, 2007;
14) Defendant’s Memorandum of Law dated August 14, 2007. BACKGROUND
On the evening of December 8, 2002, Claimant was injured in an automobile
accident while a passenger in a car driven by his friend, Jason Gingello. At
the time of the accident, Claimant and his friend were traveling north on State
Route 383 (Scottsville Road) in the Town of Chili, and were approximately
one-half mile north of Morgan Road. Neither Claimant nor Mr. Gingello have any
recollection of the accident or what caused it. Prior to the accident, Claimant
and his friend had patronized an “adult” establishment and consumed
alcohol. The driver of the vehicle, Mr. Gingello, later pled guilty to driving
while his ability was impaired, failure to keep right, and failure to stay in
his lane (Vehicle and Traffic Law §§ 1192; 1120[a]; and 1128[a]).
A toxicology report of Mr. Gingello’s blood taken after the accident
indicated the presence of both alcohol and cannabis. Mr. Gingello testified
that he possibly used marijuana on the day of the accident.
According to the claim, the accident was the result of Claimant’s vehicle
sliding on ice and snow that had drifted into its lane of travel due to
Defendant’s failure to erect a snow fence along the property which fronted
the road. Both parties agree that a contract for snow and ice control between
Defendant and the Town of Chili required the Town to contact the owner of the
property in question and try to obtain permission to put up a snow fence.
The property in question is a farm, comprised of two lots. It appears from the
record before me that, had the snow fence been erected, it would have encroached
on both lots. The first is owned by Thomas Krenzer and his wife, Anna Krenzer.
Mr. Krenzer had retired prior to the time in question and, though he and Anna
were still the record owners of their property, Thomas had passed on management
of the property and farming operations to his son, David Krenzer. David Krenzer
not only managed the farm for his father, but was the owner of the second parcel
of property that made up the farm, and over which Claimant asserts a snow fence
should have been erected. As it had done in past years, the Town contacted
David Krenzer with regard to obtaining permission to install the snow fence. In
some years, he had granted permission. In 2002, however, for reasons relating
to the harvesting of his crops, David Krenzer denied the Town access to the land
to install the snow fence.
Claimant commenced this action, asserting the Defendant’s failure to
contact the actual owner of the property, identified only as Thomas Krenzer,
constituted negligence which led to the snow fence not being erected and that
this failure was the proximate cause of Claimant’s accident.
With its first motion (M-73515), Defendant seeks to compel discovery from
Claimant. With its second motion (M-73664), Defendant seeks summary judgment
dismissing the claim in its entirety. As it is dispositive, I will first
address Defendant’s motion for summary judgment.
In any application for summary judgment, the moving party bears a heavy burden
in establishing that he or she is entitled to judgment as a matter of law,
tendering sufficient evidence to demonstrate the absence of any material issues
of fact (Andre v Pomeroy, 35 NY2d 361; Winegrad v New York Univ. Med.
Center, 64 NY2d 851, 853).
To make out a prima facie cause of action for negligence, such as is alleged
here, a Claimant must demonstrate the following: “1) the existence of a
duty on defendant’s part as to plaintiff [Claimant]; 2) a breach of this
duty; and 3) that such breach was a substantial cause of the resulting
injury” (Merino v New York City Tr. Auth., 218 AD2d 451, 457).
With regard to duty, the State has a nondelegable duty to adequately design,
construct and maintain its roadways in a reasonably safe condition (see
Friedman v State of New York, 67 NY2d 271). However, “any public
roadway, no matter how careful its design and construction, can be made
safer” and a municipality is not “an insurer of the safety of its
highways” (Tomassi v Town of Union, 46 NY2d 91, 97 - 98). So long
as the highway or street may be said to be reasonably safe for people who obey
the rules of the road, the duty of the State is satisfied (see Tomassi,
supra, at 97).
Here, Claimant asserts that Defendant had a duty to erect a snow fence on the
adjoining landowners’ property. According to Claimant, this duty was not
satisfied by requesting permission from David Krenzer (the owners’ son),
despite the fact that David Krenzer managed and was responsible for the farm and
owned the second parcel of property over which the snow fence was allegedly to
have been erected. There has been much made of the Snow and Ice Control
Agreement between the Town of Chili and the State. I have heard argument from
Claimant’s counsel on how the Town’s attempts to install the snow
fence were inadequate because it contacted the manager of the farm, instead of
the true title owner of the property.
I fail to see, however, and it has not been demonstrated, how the terms of the
contract are relevant in this matter. The State’s duty of care is
nondelegable. It existed without the contract. The contract neither created
nor terminated any duty owing from Defendant to Claimant. Accordingly, it does
nothing to alter the standard of care necessary in this instance. Whether or
not the contract required the Town of Chili to put up snow fence does not affect
one way or the other any duty the State owed to the traveling public, including
Claimant. The contract certainly does not, as Claimant seems to suggest, create
a duty running to Claimant to erect a snow fence where one was otherwise not
required (see e.g. Stiver v Good & Fair Carting & Moving, Inc.,
9 NY3d 253).
The simple fact is that a snow fence, though perhaps desirable, was not
required by any statute, rule or regulation. The fact that the Department of
Transportation’s guidelines suggest that snow fencing might enhance snow
management efforts does not magically create a legal standard. And, although
violation of a guideline can be some evidence of negligence “provided such
violation is a proximate cause of [the] accident,” no such causal link has
been established (Mickle v New York State Thruway Auth., 182 Misc 2d
967, 973 n 5).
There simply is nothing in the record which demonstrates that Defendant was
required to erect a snow fence in the location of Claimant’s accident.
Even if there were such a requirement, I find that the Town’s attempt to
obtain permission from David Krenzer, who took over management of the farm upon
his father’s retirement, was appropriate, especially in light of the fact
that David Krenzer did own a portion of the property in question and had been
the contact for such purposes (and had, on most occasions, permitted the snow
fencing) in prior years.
With regard to Defendant’s duty to keep the roadway in reasonably safe
condition, I note that Claimant identifies no other alleged shortcoming, nor
does he allege any type of notice to Defendant of a dangerous condition or
defect. Claimant’s failure to even allege, let alone offer evidence of
notice of a dangerous condition at the location of the accident, is fatal to his
cause of action (Hart v State of New York, 43 AD3d 524; Johnson v
State of New York, 265 AD2d 652; Freund v State of New York, 137 AD2d
Further, I find that Defendant has adequately demonstrated that its duties were
met on the night in question. Through the Affidavit of Lawrence Mobilio,
Defendant has demonstrated (and Claimant does not dispute) that the roadway in
question was plowed and salted in both lanes of travel at least twice, possibly
three times, on the evening in question, the last occurring at most three hours
before Claimant’s accident. Accordingly, I find that Defendant exercised
reasonable diligence in carrying out its maintenance responsibilities on the
night of the accident (see Valentino v State of New York, 62 AD2d
Moreover, the driver of the second vehicle in the accident, Kathleen Salerno,
is the only eyewitness with a recollection of the accident. She testified at
her deposition that she saw the Gingello vehicle coming at her heading north,
but in the southbound lane of travel.
“Q. And did you see those headlights in the northbound (sic) lane?
A. Yes, They were like coming right at me. I said right out loud, what the
Q. And you say they were coming at you?
A. In my lane, yes.
Q. Did you ever see those headlights in the northbound lane? In other words,
the lane the vehicle was supposed to be traveling in?
Q. And they were always in the southbound ---
A. Yeah. That’s why I was confused.”
Accordingly, in addition to finding no indication of negligence on the part of
Defendant, I find no evidence that snow or ice played any part in the accident.
Based upon the record, I find that the sole proximate cause of the accident was
the negligence of the driver of Claimant’s car, Mr. Jason Gingello
(see Johnson v State of New York
, 27 AD3d 1061; Sprague v State
of New York
, 35 AD3d 843, 844).
extent that Claimant’s experts, Mr. Thomas C. Onions (Claimant’s
Exhibit G), Mr. Ronald Tabler (Claimant’s Exhibit T) and Mr. Kevin
Williams (Claimant’s Exhibit U) opine otherwise, I find that their
opinions are entirely speculative and unsupported by facts in evidence (Barry
v Chelsea Yacht Club of Chelsea on Hudson
, 15 AD3d 323).
Though it is arguably unnecessary to proceed further, I do note that I find a
question of fact exists which cannot be resolved on this record (and this,
accordingly, was the impetus for Defendant’s other motion, to compel
disclosure) relating to whether or not a storm was in progress at the time of
Based upon the foregoing, it is
ORDERED, that Defendant’s motion for summary judgment (M-73664) is
granted and the claim is hereby dismissed in its entirety. Defendant’s
motion to compel disclosure (M-73515) is denied as moot.
Rochester, New York
HON. RENÉE FORGENSI MINARIK
of the Court of Claims
.I note that Claimant’s argument that
Defendant’s alleged negligence was the sole proximate cause of the
accident is undercut by the fact that Claimant settled his lawsuit against Mr.
Gingello for $405,000.00, as well as by Mr. Gingello’s convictions