New York State Court of Claims

New York State Court of Claims
ZUCZENKO v. THE NEW YORK STATE THRUWAY AUTHORITY THE STATE OF NEW YORK, # 2018-054-115, Claim No. 118540, Motion No. M-91467


Defendants' motion for summary judgment granted, defendants have shown that a finding that defendants' alleged negligence was a proximate cause of the accident would be based entirely upon speculation.

Case information

UID: 2018-054-115
Claimant short name: ZUCZENKO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 118540
Motion number(s): M-91467
Cross-motion number(s):
Claimant's attorney: PAZER, EPSTEIN, JAFFE & FEIN, PC
By: Matthew J. Fein, Esq.
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Attorney General for the State of New York
By: John M. Healey, Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 20, 2018
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers numbered 1-3 were read and considered by the Court on defendants' motion for summary judgment:

Notice of Motion, Attorney's Supporting Affirmation and Exhibits........................1

Affirmation in Opposition and Exhibits...................................................................2

Reply Affirmation and Exhibit..................................................................................3

This claim arises out of an accident that occurred at 7:40 a.m. on June 26, 2009 at the Sloatsburg Service Area/Travel Plaza located on the New York State Thruway between Exits 15 and 16 in Rockland County. Claimant's 77-year-old mother, Teresa Grabowska, was walking on the pedestrian crossway from the parking garage to the building in the rest area when a vehicle, driven by Marie A. Fede, struck Zuczenko causing her severe injuries resulting in her death.

Defendants move for summary judgment dismissing the claim arguing that it would be purely speculative to find any negligence attributable to defendants to be a proximate cause of the accident. Claimants oppose the motion arguing that there are genuine issues of material fact precluding an award of summary judgment in defendants' favor.

In support of the motion, defendants rely upon the deposition testimony of the driver of the vehicle, Marie A. Fede (Exhibit H)(1) and the deposition testimony of Louis Cristallo, Assistant Traffic Supervisor employed by the New York State Thruway Authority (NYSTA) who investigated the accident (Ex. D).

Fede testified that she was familiar with the service area as she had previously worked there six days a week for two years (Ex. H, p 8). On the day of the accident, Fede drove her two nieces to work at the service area. They exited Fede's car and walked into the building where they worked (id. at 6). Fede then drove off at a speed of "maybe five [mph]" when she heard a noise near her side mirror (id. at 10-11). Fede did not know what had happened (id. at 10). An unidentified person waved for Fede to stop her vehicle because she had struck claimant's decedent (id.). Fede had never observed claimant's decedent prior to the accident (id.). Fede was told by another unidentified witness that claimant's decedent was bending over to pick up something and that, as she stood up, she hit Fede's side mirror (id. 10-11). Fede was aware that people walked to and from the building to the parking garage; therefore she was looking for pedestrians prior to the accident (id. at 11, 29, 50).

The NYSTA's investigation of the accident by Cristallo reported that the accident scene was examined for any factors that may have contributed to the cause of the accident and that no abnormalities were found such as pot holes, debris or other obstacles (Ex. D, pp 19-20, 23, 64-65).

In support of claimants' opposition to defendants' summary judgment motion, claimants submit the affidavit of Robert T. Hintersteiner, P.E. (Claimant's Ex. A). Hintersteiner opined that defendants' negligence was apparent in defendants' failure to alert drivers of the presence of pedestrians by having properly painted and maintained pedestrian crosswalk markings, appropriate pedestrian crossing signs, speed control bumps, curbing, and a step down to the crosswalk (Claimant's Ex. A).

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 [1974]). 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 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "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, the Court finds that defendants have met their burden of establishing entitlement to summary judgment dismissing the claim. Specifically, defendants have shown that a finding that defendants' alleged negligence was a proximate cause of the accident would be based entirely upon speculation (see Lopez v County of Nassau, 137 AD3d 1227, 1228 [2d Dept 2016] [summary judgment awarded to county; any finding that alleged negligence was a proximate cause of accident would be based entirely on speculation]).

The Court further finds that claimants' opposition does not raise any material issues of fact. Specifically, Hintersteiner's opinions that defendants' negligence failed to alert motorists to pedestrians were conclusory and not based upon the facts as testified to by Fede (see Gattone v Conlan, 299 AD2d 394 [2d Dept 2002] [summary judgment awarded to town; driver's admitted awareness of condition eliminated town's failure to post warning signs as a proximate cause of accident and rendered opinion of claimant's expert irrelevant]). Significantly, Fede testified that she was familiar with the accident site because she had worked at the service area six days a week for two years (Ex. H, p 8). Fede was aware that, at the site of the accident, people walked to and from the parking garage (id. at 10-11, 29, 50). Prior to the accident, Fede was traveling at a speed of "maybe five" mph and was watching for pedestrians. Thus, Fede "had all the warning, all the notice" that the markings, signs, speed control devices and design details referred to by claimants' expert "would have afforded" Fede (see Noller v Peralta, 94 AD3d 830, 832 [2d Dept 2012] quoting Applebee v State of New York, 308 NY 502, 508 [1955]). Therefore, there is no basis for finding that the absence of those markings, signs, speed control devices and design details caused the driver to do anything other than she would have done had they been present (id.; Feeney v Holeman, 73 AD3d 848, 849 [2d Dept 2010] [summary judgment awarded to town; absence of warning signs or strobe light at intersection could not be a proximate cause of the accident where offending driver was familiar with the intersection where the accident occurred]; Gilberto v Town of Plattekill, 279 AD2d 863, 864 [3d Dept 2001] [town awarded summary judgment; absence of warning sign or other traffic control device or markings may be excluded as a cause of the accident if the offending driver's awareness of the conditions prescribed the same course of action as the warning sign would have or if the driver, due to familiarity with location, actually had the danger in mind upon approach to the location]).

Accordingly, defendant

s' motion for summary judgment dismissing the claim is GRANTED.

November 20, 2018

White Plains, New York


Judge of the Court of Claims

1. The Court rejects claimants' argument that the Fede's deposition transcript is not admissible because it is not signed by Fede. Defense counsel affirmed that he submitted the deposition transcript to Fede for her review and signature and a copy of the transmittal letter dated July 6, 2017 was sent to claimant

s' counsel (Defendant's Reply, Ex. I). While the transcript has not been signed, it has not been challenged as inaccurate. Under these circumstances, the transcript may be used as if it were signed (CPLR 3116 [a]); Thomas v Hampton Express, 208 AD2d 824, 825 [2d Dept 1994]; Zalot v Zieba, 81 AD3d 935, 936 [2d Dept 2011]).