Summary judgment denied in a motorcycle accident claim.
|Claimant(s):||In the Matter of the Claim of IVO K. IVANOV DALIA IVANOV|
|Claimant short name:||IVANOV|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||LAW OFFICE OF PAUL GARGIULO, P.C.
By: Paul Gargiulo, Esq.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: Dian Kerr McCullough, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 15, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-4 were read and considered by the Court on the State's motion for summary judgment on the issue of liability:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1
Attorney's Affirmation in Opposition and Exhibits.................................................2
Attorney's Reply Affirmation...................................................................................3
Attorney's Sur-Reply and Exhibit............................................................................4
This claim arises out of an accident that occurred on May 24, 2015 at 10:30 a.m. when Ivo K. Ivanov, hereinafter claimant,(1) was driving his motorcycle northbound on New York State Route 124 in the Town of Pound Ridge, County of Westchester, New York. As claimant approached mile marker 3.6 on Route 124, he proceeded into a blind curve which had a posted speed limit of 30 mph and a curve ahead sign. Daniel Sacherewitz was parked on the shoulder of Route 124 facing northbound. Sacherewitz entered the roadway and made an illegal U-turn from the northbound side of Route 124 onto the southbound side of Route 124. Sacherewitz intended to position his vehicle at the rear entrance to the Ward Pound Ridge Reservation, which is owned and operated by the County of Westchester. As Sacherewitz was proceeding into the U-turn, but prior to crossing the double-yellow line separating the northbound and southbound lanes of Route 124, Sacherewitz observed in his rearview mirror claimant's motorcycle "going down" toward the pavement (Defendant's Ex. E, p 60). In an attempt to avoid being struck in the rear by claimant and his motorcycle, Sacherewitz accelerated into the U-turn. Claimant was unable to stop his motorcycle before losing control. Claimant fell over the motorcycle handlebars and the motorcycle struck the rear tire of Sacherewitz's vehicle. Sacherewitz was issued a citation for making a U-turn at a prohibited curve or grade in violation of Vehicle and Traffic Law § 1161.
Claimants allege that the State is liable for the accident because the State failed to address the allegedly dangerous condition of vehicles parked "immediately and abruptly" beyond the curve of the State roadway (Claim, ¶ 5). Specifically, claimants argue that the State failed to install "No Parking" signs and to trim the vegetation and tree growth where the cars were parked (id.).
The State moves for summary judgment on the issue of liability arguing that: the State is afforded immunity with regard to its highway design and signage; the State did not have notice of a dangerous condition because there had been no prior similar accidents at that location; and that the sole proximate cause of the accident was the illegal U-turn made by Sacherewitz. The State did not address claimants' allegation of the State's negligent maintenance in failing to trim the vegetation and tree growth where the cars were parked.
Claimants oppose the motion and argue that the State had notice of a foreseeably dangerous condition regarding vehicles parked on the northbound side of Route 124 and failed to address the condition by posting "No Parking" signs and properly maintaining the vegetation and tree growth in the area (id.).
Summary judgment is a drastic remedy which should not be granted unless it is made clear by the proponent of the application that there are no genuine issues of material fact (see Andre v Pomeroy, 35 NY2d 361, 364 ). Moreover, summary judgment is "rarely granted in negligence cases since the very question of whether a defendant's conduct amounts to negligence is inherently a question for the trier of fact in all but the most egregious instances" (Johannsdottir v Kohn, 90 AD2d 842 [2d Dept 1982]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ). "Failure to make such [a] prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers"(Alvarez, 68 NY2d at 324; see Winegrad, 64 NY2d at 853).
Upon careful consideration of the papers submitted by the parties, the Court finds that the State has failed to meet its burden of making a prima facie showing of entitlement to judgment as a matter of law on the issue of liability. Rather, the Court finds that there are genuine issues of material fact requiring a trial which include, but are not limited to: the speed, angle and distance that the Sacherewitz's vehicle traveled from its parked position and into the northbound lane of Route 124 before beginning the illegal U-turn; the extent and amount of vegetation that allegedly obstructed claimant's view as he approached the curve; and whether the State had notice that vehicles parked on the northbound side of Route 124 posed a foreseeably dangerous condition.
Accordingly, defendant's motion for summary judgment dismissing the claim is hereby DENIED.
November 15, 2018
White Plains, New York
Judge of the Court of Claims
1. The claim of Dalia Ivanov, claimant's wife, is derative.