New York State Court of Claims

New York State Court of Claims

DAVIDSON v. THE STATE OF NEW YORK, #2008-031-005, Claim No. 108822, Motion Nos. M-73664, M-73515


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

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-73664, M-73515
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 summary judgment:
  1. Defendant’s Notice of Motion (M-73515), filed June 5, 2007;
2) Affirmation of James L. Gelormini, Esq., dated June 4, 2007, with attached exhibits;
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 exhibits;
6) Affidavit of Lawrence Mobilio, sworn to February 21, 2007, with attached exhibits;
7) Affidavit of J. Jeffrey Dunlap, sworn to June 29, 2007, with attached exhibits;
8) Affidavit of David Krenzer, sworn to February 22, 2007;
  1. 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[1]; 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 908).

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 1086).

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 heck.

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?

A. No.

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).[1] To the 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 the accident.

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.

February 4, 2008
Rochester, New York

Judge of the Court of Claims

[1].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 mentioned above.