Claimant's motion for an order precluding defendant from offering certain evidence at trial in claim alleging that claimant/pedestrian was negligently struck by defendant state police car is granted in part and denied in part: Defendant is precluded from offering evidence that claimant was involved in a prior pedestrian/vehicle accident where prior incident is not substantially similar to present claim and prejudicial effect of such evidence is outweighed by any probative value; next, defendant is not precluded from offering evidence as to the applicable speed limit at the accident location.
|Claimant short name:||WILSON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||FELDMAN, KLEIDMAN, COFFEY & SAPPE, LLP
By: Terry D. Horner, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Christina Calabrese, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 1, 2021|
|See also (multicaptioned case)|
This Amended Decision and Order supersedes the Court's earlier Decision and Order, filed March 30, 2021. The Court has received and considered claimant's Reply Affirmation (Horner Reply Affirmation), dated March 9, 2021.
Claimant moves for an order in limine:
"1. Precluding defendant from referring to or introducing any evidence at trial concerning the 2017 incident in which claimant's backpack was sideswiped by a car while he was walking on North Putt Corners Road;
2. Determining that the speed limit on North Road at the situs of the accident was 30 m.p.h. based on defendant's multiple admissions, and precluding defendant from arguing otherwise at trial; and
3. Precluding defendant from arguing or introducing any evidence at trial that the 30 m.p.h. speed limit on North Road was not 'enforceable.'"
Defendant opposes the claimant's motion.
The claim alleges that:
"[O]n August 14, 2018 at approximately 5:58 AM, when the claimant, Steven Wilson, a pedestrian, was proceeding northbound on North Road, near its intersection with State Route 9W, Town of Lloyd, County of Ulster and State of New York, [claimant] was struck by a vehicle driven by New York State Trooper James L. Distasi, who was driving southbound on North Road."
The claimant essentially argues that the state police car was proceeding at an unreasonable rate of speed under the prevailing roadway, weather and lighting conditions and that the driver of the car failed to keep a proper lookout for and avoid claimant, a pedestrian in the roadway.
Defendant's answer alleges, among other things, that claimant's injuries and damages "are attributable, in whole or in part, to the comparative negligence or culpable conduct of the claimant."
Rondout Elec., Inc. v Dover Union Free Sch. Dist. (304 AD2d 808, 810 [3d Dept 2003]) explains, with respect to a motion in limine, that:
"It is correct to say that an order, made in advance of trial, which merely determines the admissibility of evidence is an unappealable advisory ruling (see Chateau Rive Corp., v Enclave Dev. Assocs., 283 AD2d 537; Brennan v Mabey's Moving & Stor., 226 AD2d 938). Indeed, according to Blacks Law Dictionary, a motion in limine is defined as '[a] pre-trial request that certain inadmissible evidence not be referred to or offered at trial' (id. 7 th ed. at 1033)."
First, claimant seeks to preclude the introduction of evidence of a prior, October 27, 2017 incident involving claimant in which, according to claimant and a police accident report, claimant was "clipped" from behind on either claimant's left shoulder or backpack by the side mirror of a vehicle as claimant was walking with traffic on or near the shoulder of a roadway.
Here, the parties agree that at the time claimant was struck by the state police car he was crossing the roadway outside of a cross-walk at or near a curve in the road and further, the record shows that claimant was in, or near, the middle of the roadway (which contained no center lane or road edge markings) at the moment he was struck by the state police car.
The Court finds that the October 27, 2017 incident is not substantially similar to the circumstances of the present action, is not relevant to the Court's consideration of the claim and any probative value of receiving evidence of the October 27, 2017 incident is outweighed by its prejudicial nature.
Next, claimant requests, in essence, that with respect to the applicable speed limit at the accident location, the Court "ascertain what facts are not in dispute or are incontrovertible [and] make an order specifying such facts and they shall be deemed established for all purposes in the action" (CPLR 3212 [g]; see Siewert v Loudonville Elementary School, 210 AD2d 568 [3d Dept 1994]).
The record on the claimant's prior summary judgment motion demonstrated in sharp detail that the parties disagree as to the speed limit in effect on the roadway at the point of impact and further disagree as to the police car's actual rate of speed just prior to, and at, the point of impact.
Claimant's expert concluded, as relevant to this motion, as follows:
"Mr. DiStasi was traveling in excess of the speed limit, 40 mph in a 30 mph zone when impact occurred."
Defendant's expert concluded, as relevant to this motion, that:
"The best and most reliable speed of the DiStasi vehicle at impact is in the range of 30 miles per hour =/- 2 miles per hour."
"The posted speed limit for North Road is 30 mph. This speed becomes enforceable only 70 feet south of the impact point. In the absence of a posted speed limit the unposted speed limit is 55 mph."
With respect to the issues claimant seeks to have determined in his favor on this motion in limine, the Court previously found, after careful review of the record on the claimant's summary judgment motion, that the following issues of material fact, among others, exist:
"1. What was the applicable speed limit at the location of impact; and
2. What was the speed of defendant's vehicle at the time of impact."
Nothing the claimant has presented on his motion in limine changes the Court's prior determination. The applicable speed limit and claimant's actual speed at the point of impact are mixed questions of law and fact which the Court will determine at the trial of the claim.
Claimant's motion in limine is granted in part and denied in part as set forth above.
April 1, 2021
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's Notice of Motion, filed February 5, 2021;
2. Affirmation of Terry D. Horner, dated February 5, 2021;
3. Affirmation in Opposition of Christina Calabrese, dated March 3, 2021;
4. Reply Affirmation of Terry D. Horner, dated March 9, 2021.