New York State Court of Claims

New York State Court of Claims

RADELL v. STATE OF NEW YORK, #2009-018-055, Claim No. 112802, Motion No. M-77035


Synopsis



Case Information

UID:
2009-018-055
Claimant(s):
GARY RADELL
1 1.The Court has amended the caption sua sponte to reflect the State of New York as the only proper Defendant.
Claimant short name:
RADELL
Footnote (claimant name) :

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

Third-party defendant(s):

Claim number(s):
112802
Motion number(s):
M-77035
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
JOHN A. LoFARO, ESQUIRE
Defendant’s attorney:
LIPPMAN O’CONNORBY: GERARD E. O’CONNOR, ESQUIRE
Third-party defendant’s attorney:

Signature date:
December 7, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion for summary judgment dismissing the claim. Claimant has


not submitted any response to this motion.

The claim arises from injuries Claimant sustained on September 20, 2005. Claimant was employed as a maintenance mechanic for Andretta Associates. His duties included changing oil, scheduling repairs, and welding front-end loaders, backhoes, air compressors, and skid steers. Despite Claimant’s job title and regular duties from April 2005 until the date of the accident, he was charged with operating a large farm tractor and bat wing mower, mowing the sides of Routes 81, 481 and 690. His employer was, according to his testimony, charged with mowing each area four times per season pursuant to the contract.

On September 20, 2005, Claimant was on the fourth cycle mowing in a westerly direction in an area adjacent to Route 690 westbound near the Bridge Street exit. He had mowed the same area three other times. The grass, at that time, was approximately eight inches high in this area. Between 10:30 and 11:00 a.m., Claimant had been mowing for approximately 3½ to 4 hours when he drove into a depression in front of a culvert pipe. The right front tire and then the back tire went down into the hole, and the front tire bounced up. The spring suspension seat on the tractor bounced or jerked him causing injury. Claimant stopped the tractor and got off. Another worker came to him to see if he was okay. Claimant finished mowing the area and called his boss because his back was hurting. He was out of work from September 20 through December 2005, and diagnosed with a herniated disc and a bulging disc.

The State contracted with Scott Lawn Yard, Inc., for Interstates I-81, I-481 and I-690 for mowing, sweeping, and litter removal. Scott Lawn Yard, Inc., then subcontracted with Andretta Associates to complete the work (see Exhibit E). As part of the contract between Scott Lawn Yard, Inc., with the State, Article 3 provides:

The Contractor agrees that before making its proposal it carefully
examined the contract documents, together with the site of the proposed work, as well as its surrounding territory, and is informed regarding all of the conditions affecting the work to be done and labor and materials to be furnished for the completion of this contract, including the existence of poles, wires, pipes and other facilities and structures of municipal and other public service corporations on, over or under the site, except latent conditions that meet the requirements of Section 109-16, and that its information was secured by personal and other investigation and research.


Claimant testified that neither he nor anyone else, to his knowledge, inspected the areas he mowed. No modifications were made to the culvert between the third and fourth mowing of this area.

Defendant argues that the area Claimant was mowing was outside of the normal driving area, the culvert was properly designed in accordance with applicable standards at the time it was constructed, and Claimant or his employer had the obligation to investigate the areas they were mowing before they were mowed to familiarize themselves with the various facilities and structures in the area. It is Defendant’s position that the State breached no duty to the Claimant.

Defendant, as the party seeking summary judgment, has the burden to make a prima facie showing of entitlement to summary judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). Once a prima facie showing has been made, the burden then shifts to the opposing party to produce proof in admissible form to establish material issues of fact which require a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Here, Defendant has set forth sufficient proof to establish it breached no duty owed to Claimant as a matter of law. The State’s obligation as a property owner is to maintain its property in a reasonably safe condition for its intended use (Basso v Miller, 40 NY2d 233; Walters v County of Rensselaer, 282 AD2d 944, 945). There is no indication how this hole or depression in front of the culvert was created, whether the State created it or it was the result of erosion or other consequence. Nor is there any indication that the State had any notice of this condition. The contract under which Claimant performed his duties specified that it was the obligation of the contractor (Scott) to investigate the area where the work would be performed. No investigation was done. Claimant himself had mowed this precise area three previous times, cutting the grass to roughly two inches. If the depression existed during those prior cuttings, Claimant apparently had the good fortune to have had the tractor wheels miss that precise location. Nonetheless, the existence of such a hole or depression at this location does not by itself establish a breach of the State’s duty, and Claimant has not otherwise come forward with any proof that this was a foreseeable risk or that the State had notice of a dangerous condition. Since Claimant has presented no opposition, Defendant’s motion must be GRANTED, and Claim No. 112802 is DISMISSED.


December 7, 2009
Syracuse, New York

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


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

1. Notice of Motion.

2. Affidavit of Gerard E. O’Connor, Esquire, sworn to July 28, 2009, in support, with exhibits attached thereto.

3. No opposition was received from Claimant.