New York State Court of Claims

New York State Court of Claims
LANZAFAME v. NEW YORK STATE THRUWAY AUTHORITY, # 2018-018-934, Claim No. 125133, Motion No. M-91874


Claimant granted summary judgment based upon doctrine of res ipsa loquitur. Claimant did not have to establish a "serious injury" where accident did not arise out of use or operation of motor vehicle.

Case information

UID: 2018-018-934
Claimant short name: LANZAFAME
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 125133
Motion number(s): M-91874
Cross-motion number(s):
Claimant's attorney: SUGARMAN LAW FIRM, LLP
By: Robert P. Dwyer, Esquire
Defendant's attorney: HON. BARBARA D. UNDERWOOD
Acting Attorney General of the State of New York
By: Bonnie Gail Levy, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 15, 2018
City: Syracuse
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves for summary judgment on the issue of liability relying upon the doctrine of res ipsa loquitur. Defendant opposes the motion arguing there are questions of fact which require a trial.

Claimant served a claim on Defendant on October 17, 2014 and filed it with the Clerk of the Court on October 20, 2014. Defendant interposed a verified answer on November 28, 2014. Discovery has been completed. This action has been bifurcated and the liability trial is scheduled for September 5, 2018. This motion is timely (CPLR 3212 [a]).

Claimant submits with her motion her own deposition testimony and the testimony of State employee, James Millbower. Defendant also relies on these depositions and Claimant's other exhibits in opposition.

On July 26, 2014, Claimant was exiting the New York State Thruway (Thruway) at the Weedsport Exit (Exit 40) at approximately 5:00 p.m. James Millbower, an employee of the New York State Thruway Authority since 1989, began his shift as a toll booth collector that day at 3:00 p.m. He was working the booth with another employee, Jordan Powers. Around 5:00 p.m., Ms. Powers took a break. Mr. Millbower described the toll booth as having three doors: a full size door on the Thruway entry side, and two half doors with movable upper glass partitions, one on the Thruway entry side and one on the Thruway exit side. The half doors effectively become full doors when the glass is closed. Mr. Millbower testified that the half doors have a latch with a pull-up post to open the door; the latch is just below where a typical door handle would be. Mr Millbower did not recall what door he used to enter or what door Ms. Powers used to exit the toll booth. In fact, in his deposition,(1) he indicated that he had no independent recollection of the accident, but relied on his tour of duty report(2) made a few days later. Although he couldn't recall whether the half door was latched at all before the incident, he did testify that the half door was not "securely" latched. He reasoned that if it had been securely latched it would not have opened. Instead, when Mr. Millbower leaned on the toll booth door to give Claimant her change, the door opened and Mr. Millbower began to tumble out. He grabbed Claimant's arm to steady himself.

At her deposition,(3) Claimant recalled that she was reaching out to hand Mr. Millbower the Thruway ticket when he fell out of the booth. He grabbed her left arm with both hands to catch himself. Claimant's seatbelt prevented her from being pulled out of the vehicle. She recalled him saying he forgot to lock the door. Mr. Millbower insisted in his deposition that as his tour of duty report reflects,(4) he was handing Claimant her change when he fell out of the booth and came in contact with her arm. His tour of duty report reflects his recollection that "[he] leaned against the bottom of the dutch [sic] door. The dutch [sic] door was not latched securely and I fell towards the customer. I put out my hand and it landed on her arm (left)."(5) There is no dispute that Mr. Millbower fell out of the booth making contact with Claimant's arm. Claimant testified that after the incident her left hand tingled a bit and then she had some pain in her neck and arm. She went to the emergency room two days later, was given medication, and referred to the Spine and Wellness Clinic where she had been previously treated. Thereafter, Claimant spoke with a New York State Trooper about the incident and was advised to contact the Thruway Authority, which she did. Mr. Millbower testified that his supervisor requested that he complete a second tour of duty report for the July 26 incident on July 30.(6) His original tour of duty report did not reference the event.

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 [1957]). The movant has the burden on the motion to establish with proof in admissible form, that judgment should be granted as a matter of law (Jacobsen v New York City Health & Hosps. Corp., 22 NY3d 824, 833 [2014]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]). This is a heavy burden since the evidence submitted must be viewed in the light most favorable to the non-moving party giving that party the benefit of any favorable inference (Jacobsen, 22 NY3d at 833; Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]). It is only after movant has met the burden, that the burden then shifts to the opposing party to present evidentiary proof to establish the existence of a material fact requiring a trial (Jacobsen, 22 NY3d at 833; Zuckerman v City of New York, 49 NY2d 557 [1980]).

Here, there are only two factual discrepancies. Claimant and Mr. Millbower each have a differing recollection about whether the incident occurred while Mr Millbower was taking the ticket from Claimant or giving Claimant change, as well as the extent of contact Mr. Millbower made with Claimant's arm. The first issue is not material to the issue of liability and the second is best determined at the damages trial.

In support of her motion, based upon the undisputed facts, Claimant relies upon the doctrine of res ipsa loquitur to argue that the doctrine permits the Court in this case to draw an inference of Defendant's negligence. The application of the res ipsa loquitur doctrine requires three elements be established:

1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence;

2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and

3) it must not have been due to any voluntary action or contribution on the part of the plaintiff (7) (Morejon v Rais Constr. Co., 7 NY3d 203, 209 [2006]).

If these three elements are established, an inference of negligence may be drawn, shifting the burden to Defendant to come forward with evidence to rebut the inference of negligence and show triable issues of fact exist to defeat summary judgment.

Claimant argues that if Mr. Millbower had inspected the latch on the half door in the toll booth and, if it had been securely latched, it would not have opened. Absent negligence, and without any evidence that Mr. Millbower inspected the latch or that the latch was securely fastened, Claimant contends the door would not have opened when Mr. Millbower leaned on it causing him to tumble out injuring Claimant's arm. Claimant established, without dispute, that no one other than an employee of Defendant had control over the toll booth door or the latch. Since Defendant concedes the last requirement for application of the res ipsa loquitur doctrine, Claimant alleges that she has met her burden to show she is entitled to summary judgment.

In opposition, Defendant argues that Claimant has not shown that this occurrence is one which does not ordinarily happen absent negligence. Claimant submits no evidence that the door was required to be latched - a failure to follow rules of procedure, or that Mr. Millbower was required to insure that the booth door was latched securely and did not. It is just as likely that the door did not latch securely because of a failure to maintain the lock properly, a faulty lock, or mere happenstance, which Defendant contends presents questions of fact and makes application of the res ipsa doctrine an issue that must be determined at a trial. Defendant notes that the law does not make the Thruway Authority an insurer, liable for any injury, without showing it was negligent. Defendant also argues there are questions of what if any of Claimant's injuries were proximately caused by Mr. Millbower's contact with her arm, and Claimant has not shown her injury is a serious injury as defined by the Insurance Law.

The res ipsa loquitur doctrine allows the fact finder, when the specific cause of an accident is unknown or not fully known, to consider circumstantial evidence to draw an inference of the defendant's negligence (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]; Bonura v KWK Assoc., 2 AD3d 207 [1st Dept 2003]). The doctrine permits the inference of negligence "solely from the happening of the accident upon the theory that 'certain occurrences contain within themselves sufficient basis for an inference of negligence.' " (Id., quoting Foltis, Inc. v City of New York, 287 NY 108, 116 [1941]). It is an evidentiary doctrine that allows the fact finder to reasonably draw upon common past experience to conclude that the adverse event generally would not occur absent negligent conduct (Kambat v St. Francis Hosp., 89 NY2d 489, 495 [1997]; DeWitt Props. v City of New York, 44 NY2d 417, 426 [1978]; Abbott v Page Airways, 23 NY2d 502, 512 [1969]; see also Prosser & Keaton, Torts, 39 at 247 [5th ed. 1984]; Restatement [Second] of Torts: Res Ipsa Loquitur 328 D, comment d).

As an evidentiary doctrine permitting but not requiring an inference of negligence, application of the doctrine is typically in the province of the fact finder during trial (Morejon v Rais Construction Co., 7 NY3d 203, 209 [2006]). However, the Court of Appeals has held that the doctrine can be used on a summary judgment motion in the exceptional case where no facts are left for determination, and the circumstantial evidence is so convincing that "the inference of defendant's negligence is inescapable." (Id.; Barney-Yeboah v Metro-North Commuter R.R., 25 NY3d 945 [2015]).

The door of a toll booth swinging open and causing the toll collector to tumble out making contact with the stopped driver is an unusual occurrence which would only happen if there was some negligent conduct. The door and the latch which secures it was solely in the control of the defendant's employees, and Claimant played no active role in the incident. Under these circumstances, Claimant has met her burden on a summary judgment motion.

Although Defendant cogently argues that the door could have sprung open because of other problems - faulty latch, breaking of the latch - Defendant has not provided any evidence that any of these other reasons actually occurred and, in this case, the undisputed facts establish that any of the possible causes point to Defendant's negligence (Abbott, 23 NY2d at 513). Moreover, Claimant need not conclusively eliminate all other possible causes of the injury, Claimant must only provide evidence to support the three requirements which provide a rational basis to conclude that 'it is more likely than not' that the injury was caused by Defendant's negligence (Kambat, 89 NY2d at 494). Claimant has met that burden.

The evidence presented establishes that Claimant suffered an injury as a result of Defendant's employee grabbing her arm to steady himself, to what extent Claimant's current injuries are proximately related to Defendant's negligence, is an issue to be determined at the damages trial (DiCesare v Glasgow, 295 AD2d 1007 [4th Dept 2002]). For purposes of this motion, the Claimant need only show that the Defendant's negligence proximately caused the occurrence. What injury or damage was proximately caused, especially when there is a pre-existing condition which may have been exacerbated by the event, is a matter to be determined during the damages trial (Oakes v Patel, 20 NY3d 633 [2013]).

Defendant further contends that the instrumentality which caused the injury, specifically Mr. Millbower, was not in the exclusive control of the Defendant. The instrumentality that caused the injury was the unsecured latch which set the unfortunate series of events in motion. Mr. Millbower, as an employee of Defendant, was acting within the scope of his employment at the time of the incident accident, was in the control of the State, and the State is vicariously liable for his actions (compare Rosales-Rosario v Brookdale Univ. Hosp. & Med. Ctr., 1 AD3d 496 [2d Dept 2003] [anesthetized patient awoke from procedure with burn on her leg, after defendant's employees had performed unrelated examination, court found proper application of doctrine of res ipsa loquitur where defendant's employees were in control of procedures and equipment used]). The doctrine of res ipsa loquitur only requires the exclusive control to be such that defendant would be responsible for any negligence connected with the cause of the accident (Dermatossian, 67 NY2d at 227). In this instance, there is no question that this was the case.

Defendant's argument that Claimant has not established a "serious injury" as defined in the Insurance Law, the Court finds misplaced here. Although Claimant was in an vehicle at the time she was injured and her automobile insurer paid for some of her expenses, that does not necessarily implicate the Insurance Law. In fact, the Court of Appeals addressed this very issue in Cividanes v City of NewYork, 20 NY3d 925 [2012] where plaintiff stepped in a hole and fell while exiting a bus. Where the "use or operation of the bus was neither a proximate cause nor the instrumentality that produced plaintiff's injury, Insurance Law 5104 (a) did not apply." Also on point and cited in Cividanes, is Walton v Lumberman's Mut. Cas-Co., 88 NY2d 211 [1996], where the Court stated no-fault liability is not implicated when the injury cannot be considered an accident related to the use of the motor vehicle (Walton, 88 NY2d at 215-216).

Accordingly, based upon the evidence submitted, Claimant's motion is GRANTED. The Court will schedule a trial on the issue of damages as soon as practicable.


May 15, 2018

Syracuse, New York


Judge of the Court of Claims

The Court has considered the following in deciding this motion:

1) Notice of Motion.

2) Affidavit of Robert P. Dwyer, Esquire, sworn to February 22, 2018, in support, with exhibits attached thereto.

3) Claimant's Supporting Memorandum of Law dated February 22, 2018.

4) Affirmation of Bonnie Gail Levy, in opposition.

5) Reply Affidavit of Robert P. Dwyer, Esquire, sworn to April 2, 2018, in support.

1. Exhibit E (all references to exhibits are those submitted by Claimant and are relied upon by Defendant).

2. Exhibit G.

3. Exhibit D.

4. Exhibit G.

5. Exhibit G.

6. Mr. Millbower said he completes a report every day he works.

7. Defendant concedes the Claimant did not contribute to this accident.