|Claimant short name:||QUINN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Kenneth J. Ready & Associates
By: Steven T. Lane, Esq.
|Defendant's attorney:||Camacho Mauro Mulholland, LLP
By: Andrea Sacco Camacho, Esq.
|Third-party defendant's attorney:|
|Signature date:||April 19, 2010|
|See also (multicaptioned case)|
This is a claim for personal injuries by Michael Quinn (hereinafter "claimant")(1) due to the alleged negligence of the State of New York (hereinafter "defendant"). Claimant was riding his bike on the bike path adjacent to the Wantagh State Parkway. Claimant fell to the ground where a pile of gravel was spread across the bike path. The accident occurred on September 27, 2006, in Wantagh, New York.
Defendant moves this Court for summary judgment on the issue of liability(2) . Defendant argues claimant cannot show defendant: had actual or constructive notice of the condition or created the condition. In addition, defendant argues the condition was open and obvious and claimant assumed the risk of bike riding.
In opposition to the motion, claimant argues he was not provided with the foreman's daily reports which this Court ordered to be turned over to claimant on October 6, 2009. Claimant argues it is premature to grant summary judgment without all discovery being given to claimant.
Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).
From the evidence presented, it is clear significant issue of fact exist. Defendant, in its Reply Affirmation, states the foreman's daily reports have been turned over at this point and they indicate nothing that will help claimant. This Court will allow claimant to decide if the evidence is relevant to its case or not. Defendant makes this bald assertion without providing a copy as a supporting exhibit. Defendant also does not contest the timing as to when the reports were provided. As discovery was still outstanding at the time of the making of this motion, the motion must be denied (Baron v Incorporated Village of Freeport, 143 AD2d 792).
Based upon the foregoing, defendant's motion for summary judgment is denied.
April 19, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. Defense counsel repeatedly uses the improper term "plaintiff". The Court will refer to claimant by the proper term, as did claimant himself.
2. The following papers have been read and considered on defendant's motion: Notice of Motion dated December 18, 2009 and filed December 21, 2009; Affirmation in Support of Andrea S. Camacho, Esq. with annexed Exhibits A-I dated December 18, 2009 and filed December 21, 2009; Memorandum of Law in Support of State of New York's Motion for Summary Judgment of Andrea Sacco Camacho, Esq. dated December 18, 2009 and received December 21, 2009; Affirmation in Opposition of Steven T. Lane Esq. with annexed Exhibits A-G dated January 19, 2010 and filed January 25, 2010; Reply Affirmation in Support of Motion for Summary Judgment of Andrea S. Camacho, Esq. dated January 26, 2010 and filed January 26, 2010.