New York State Court of Claims

New York State Court of Claims

FAZZINGA v. THE STATE OF NEW YORK, #2009-010-009, Claim No. 110764, Motion No. M-76626


Synopsis


Defendant’s motion for summary judgment granted.

Case Information

UID:
2009-010-009
Claimant(s):
CAROLYN FAZZINGA as Executrix of the Estate of TIMOTHY MYLES FAZZINGA, and CAROLYN FAZZINGA as Parent and Natural Guardian of KATHLEEN FAZZINGA, TIMOTHY FAZZINGA, JR., and ROBERT FAZZINGA and Individually
1 1.The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
FAZZINGA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110764
Motion number(s):
M-76626
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
MEAGHER & MEAGHERBy: Jennifer C. Patrissi, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New York
By: Fabiani, Cohen & Hall, LLPAlexander J. Drago, Esq.
Third-party defendant’s attorney:

Signature date:
May 21, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on defendant’s motion for summary judgment:
Notice of Motion, Memorandum of Law and Exhibits............................................1

Claimants’ Reply.......................................................................................................2
Background
This is an action for the wrongful death of Timothy Miles Fazzinga, who was 40 years old, collapsed and died following completion of a 5K race held at State University of New York (SUNY) Purchase College on June 12, 2003. The event was sponsored by Pepsico, Inc. and organized by the Westchester Track Club (WTC) and the Westchester Road Runners Club, Inc. (WRRC). In 2004, claimants commenced an action in Supreme Court, Westchester County against WTC, WRRC and Pepsico for, inter alia, wrongful death due to defendants’ failure to have emergency medical personnel on site. Thereafter, claimants commenced this action in the Court of Claims against the State of New York. On May 24, 2006, the Supreme Court (Nicolai, J.) granted summary judgment to defendants on the grounds that Pepsico did not supervise or control the event, and the waiver and release signed by Fazzinga prior to the race was valid, thereby absolving WTC and WRRC of liability. The Appellate Division, Second Department, affirmed, Fazzinga v Westchester Track Club, 48 AD3d 410. The State now seeks summary judgment dismissing the claim in this Court. Based upon the Appellate Division decision, claimants take no position with respect to defendant’s motion.
Analysis
Consistent with the Appellate Division’s finding that the waiver signed by Fazzinga prior to the race (Defendant’s Ex. D) absolved WTC and WRRC of liability (Fazzinga v Westchester Track Club, supra at 411) and that, therefore, the claim against those parties warranted dismissal, so too here, this Court finds that the claim against the State warrants dismissal because the waiver absolves the State of any liability. Also, consistent with the Appellate Division’s finding that liability could not be had against Pepsico because it did not supervise or control the events at issue (id.), so too here, the claim warrants dismissal against the State because it did not supervise or control the events in issue.

Accordingly, summary judgment is GRANTED dismissing the claim.


May 21, 2009
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims