New York State Court of Claims

New York State Court of Claims
Cooper v. STATE OF NEW YORK, # 2010-018-110, Claim No. 116764, Motion No. M-77396


Summary judgment on behalf of Claimant is granted. Claimant has established a prima facie case of negligence (see Whitely v Lobue, 59 Misc 2d 755, revd 30 AD2d 552, revd and reinstated order of Special Term, 24 NY2d 896). The State is 100% liable for the death of the decedent.

Case information

UID: 2010-018-110
Claimant(s): MOSES COOPER, Individually and as Administrator of the Estate of KENNETH COOPER, Deceased
Claimant short name: Cooper
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116764
Motion number(s): M-77396
Cross-motion number(s):
Claimant's attorney: CELLINO & BARNES, P.C.
By: Richard P. Amico, Esquire
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Edward F. McArdle, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 23, 2010
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant brings this motion seeking partial summary judgment on the issue of liability. Defendant opposes the motion. The Court heard oral argument on the motion on December 9, 2009. At that time, the Court gave Defendant 60 days to pursue additional discovery. The Court received a letter from Defendant's counsel dated January 28, 2010, indicating no further discovery is needed.

In support of the motion, in addition to the pleadings and the Verified Bill of Particulars, Claimant has attached the following:

Defendant, in opposition, has submitted the affirmation of its attorney.

The claim arises from a fatal one-vehicle accident on February 21, 2008, in which Claimant's decedent was a passenger in a van owned by the New York State Department of Mental Retardation and Developmental Disabilities. The driver of the vehicle was Keith F. Nesbitt who was employed by the State of New York at the time. Steve G. Heffron, a resident of the State-owned group home was also a passenger in the van.

The facts are really undisputed. Mr. Nesbitt was driving a State-owned 2005 Chevrolet van with passengers, decedent and Steve Heffron. They were returning from a shopping outing to Wegmans and Tim Horton's around 7:41 p.m., on February 21, 2008. Mr. Nesbitt was driving northbound within the posted 55 mile-per-hour speed limit on Route 21 in the Town of Palmyra, Wayne County. Route 21 is a two-lane roadway with one northbound and southbound lane. At the location of the accident, there was a no-passing zone. It was dark at the time of the accident, the weather was clear and the pavement was dry. The vehicle went off the right shoulder of the roadway and struck a guide rail. The van then continued down the shoulder, crossing Goldsmith Road, an intersecting roadway, and proceeded to enter a ditch on the east side of Route 21. The van continued along the ditch before striking an earthen embankment, becoming airborne, and landing on its roof. The van spun around and, ultimately, came to rest on its wheels in a southerly direction. Mr. Nesbitt has no recollection of the accident, other than hearing the decedent scream. He recalls leaving Tim Horton's before the accident. His next recollection, other than the decedent's scream, is climbing out of the window of the van after the accident.

Mr. Nesbitt's shift started that day at 3:00 p.m., and he was scheduled to work until 11:00 p.m. Mr. Nesbitt testified he had slept as usual the night before the accident and had slept an hour or so before going into work that day. Mr. Nesbitt was familiar with the roadway - traveling it every day. Mr. Nesbitt testified that he was a diagnosed diabetic, but that his diabetes was under control and had not been a problem for over a year. He was on no medication, denied being tired at the time, and denied suffering from any blackouts, seizures, or dizziness. His blood test was negative for narcotics or alcohol. Mr. Nesbitt testified that after the accident, a medical examination revealed he had suffered no cardiac or epileptic episode. No tickets were issued to Mr. Nesbitt, although after the Department of Motor Vehicle Administrative Hearing, his driver's license was suspended for 31 days. After an investigation of the vehicle, no malfunctions or maintenance issues were revealed. No skid marks were noted on the roadway nor any gouges on the pavement. One single tire scuff mark was found on the pavement around Goldsmith Road, all other tire marks were off the paved roadway and showed sliding and rolling tires. The Administrative Law Judge found that Mr. Nesbitt made an unsafe lane change, but found no cause for the accident. Neither did the Wayne County Sheriff's Department determine a cause for the accident.

Defendant argues that Claimant is not entitled to summary judgment in that he has failed to set forth a prima facie case.

Summary judgment 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). To be successful on a motion for summary judgment, the proponent must present a prima facie showing of entitlement to judgment as a matter of law, then the other party must present evidentiary proof to establish the existence of a material fact which would require a trial (Zuckerman v City of New York, 49 NY2d 557; Sillman v Twentieth Century Fox Film Corp., 3 NY2d 395). It is a rare negligence case that is appropriate for summary judgment (Ugarriza v Schmieder, 46 NY2d 471). Even if all other facts are undisputed, the issue of proximate cause is usually a question of fact (Derdiarian v Felix Contr. Corp., 51 NY2d 308). Here Claimant's decedent is not available to testify; and as a result, Claimant is not held to as high a degree of proof, where facts are shown that permit an inference of negligence (Pierson v Dayton, 168 AD2d 173, 175). Mr. Nesbitt has no recollection of the accident and without any witness Claimant is forced to rely on circumstantial evidence. In a circumstantial case, where the actual cause of the accident may never be known, a claimant must show "sufficient facts from which the negligence of the defendant and the causation of the accident by that negligence can be reasonably inferred." (Babino v City of New York, 234 AD2d 241, 241-242; Thomas v New York City Tr. Auth., 194 AD2d 663, 664; also see e.g., Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d 203, 205). "'Circumstantial evidence is sufficient if it supports the inference of causation or of negligence even though it does not negate the existence of Remote [sic] possibilities that the injury was not caused by the defendant or that the defendant was not negligent. It is enough that he [claimant] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.'" (Spett v President Monroe Bldg. & Mfg. Corp., 19 NY2d at 205, quoting Dillon v Rockaway Beach Hosp., 284 NY 176, 179).

Here, the key facts are undisputed. Mr. Nesbitt was driving a vehicle at night without any identified defects on dry pavement during clear weather. Mr. Nesbitt suffered no apparent emergency medical condition. The roadway did not reflect any skidding, yet the State van left the travel lane of the roadway, struck the guide rail, continued on the shoulder - outside the travel lane - until it left the paved roadway, went into a ditch and struck an embankment. There is no explanation for this accident other than the inference of Mr. Nesbitt's negligence as a matter of law. Claimant has established a prima facie case of negligence (see Whitely v Lobue, 59 Misc 2d 755, revd 30 AD2d 552, revd and reinstated order of Special Term, 24 NY2d 896). Defendant has not come forward with any evidence or even suggestion that the cause of the accident was anything other than Mr. Nesbitt's negligence. Claimant's decedent, who was a passenger in the vehicle, had no comparative negligence.

Accordingly, Claimant's motion is GRANTED. The State is 100 percent liable for this accident on February 21, 2008. The Court will set this matter down for a conference to schedule a date for a trial on the issue of damages.

March 23, 2010

Syracuse, New York


Judge of the Court of Claims

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

1. Notice of Motion.

2. Affirmation of Richard P. Amico, Esquire, in support, with exhibits attached thereto.

3. Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General, in opposition.