New York State Court of Claims

New York State Court of Claims

O’Hara v. STATE OF NEW YORK, #2009-018-054, Claim No. 114751, Motion No. M-76804


Case Information

ERIN O’HARA and TIMOTHY P. O’HARA, as Parents and Natural Guardians of CAITLYN O’HARA, an Infant Under the Age of Fourteen Years
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
RIEHLMAN, SHAFER & SHAFERBy: Jane G. Kuppermann, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Edward F. McArdle, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 1, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants bring a motion for partial summary judgment on the issue of liability.

Defendant opposes the motion.

The claim alleges that on September 4, 2004, at approximately 3:00 p.m., Timothy O’Hara was on the campus of the State University of New York at Oswego (SUNY Oswego) carrying the Infant Claimant when he stepped off of the curb at the corner of Hewitt Union Drive and his foot became caught in a hole in the curb. He fell with his daughter and the Infant Claimant was seriously injured as a result.

Many of the facts relating to the claim, as evidenced by Claimants’ submissions, specifically the deposition transcripts, are not disputed. It is clear that Timothy and Erin O’Hara took their two daughters to the SUNY Oswego campus that day to show them the school. They stopped at the bookstore at Hewitt Union Hall first to purchase Erin O’Hara’s books and then took their purchases back to their car in a parking lot. Thereafter, they walked back toward campus toward Cooper Drive. Erin O’Hara was holding their youngest daughter, Breannan, who was 1½ years and walking approximately 10 feet behind her husband. Timothy O’Hara picked up his daughter, Caitlyn, who was 5 years old at the time. Timothy then fell with Caitlyn. Caitlyn started to cry or wail as Erin O’ Hara had never heard her do before. Her husband, Timothy, told her he twisted his ankle. They left the campus and took Caitlyn to the Emergency Room of University Hospital where she was diagnosed with having suffered a concussion and two skull fractures.

There are, however, some issues regarding the circumstances immediately leading up to Timothy O’Hara’s fall which are also apparent from Claimants’ submissions. Erin O’Hara testified that as she was walking holding Breannan behind Timothy holding Caitlyn, they were looking up watching Canadian geese which were flying overhead, and then were looking toward the campus. She then saw Timothy fall, although she could not describe specifically how he fell.

Timothy O’Hara’s testimony indicates that when the family was walking toward Cooper Drive he stopped while holding Caitlyn to look for traffic. It was clear so he proceeded when his left foot got caught and twisted and he fell to the pavement with his daughter.

Attached to Claimants’ moving papers (Exhibit H) is a copy of the SUNY Oswego Report of Accident or Injury (other than a Motor Vehicle Accident). The narrative addendum, written by then Officer K. Byrne,[1] indicates that Timothy O’Hara stated that he stepped off the curb, twisting his left ankle and fell into Cooper Drive landing on his daughter. It further reflects that “he [was] unsure if he stepped off of the curb with his left foot, twisting same ankle, or stepped off of the curb with his right foot, twisting his left ankle as he fell into the roadway.”[2] Timothy O’ Hara sent a follow-up letter to the SUNY Oswego Police Department dated November 2, 2004, indicating that the accident report should have reflected that he told the officer that the condition of the curb caused his fall and that his foot got caught in the broken part of the curb. Officer Thompson testified by deposition and indicated that Timothy O’Hara never mentioned to her that his foot got caught causing him to fall. She testified that she would have noted if he had made such a comment because it was an important part of the investigation.[3]

On a motion for summary judgment, the movant has the burden to establish a 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). It is not the place of the Court on a motion for summary judgment to determine which witness’s account is accurate or to assess credibility (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). Here, there are questions of fact and issues of apportionment of fault which preclude granting summary judgment.

December 1, 2009
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

1. Notice of Motion

  1. Affidavit of Jane G. Kuppermann, Esquire, sworn to June 5, 2009, in support with exhibits attached thereto.
3. Affidavit of Erin O’Hara, in support, sworn to June 5, 2009.

4. Affidavit of Timothy P. O’Hara, in support, sworn to June 5, 2009, with exhibit attached thereto.

5. Affidavit of John P. Coniglio, Ph.D., CSP, CHMM, RPIH, CHCM, COHC, in support, sworn to June 9, 2009.

6. Memorandum of Law in support.

7. Affirmation of Edward F. McArdle, Esquire, in opposition, with exhibits attached thereto.

8. Memorandum of Law in opposition.

[1].Officer Byrne is now known as Kelly Marie Thompson.
[2]. Claimants’ motion papers Exhibit H, page 3, first paragraph.
[3]. See Exhibit E, page 31, line 20 through page 34 line 4.