Defendant's summary judgment motion denied, material issues of fact remain.
|Claimant(s):||FRANK J. ELIO|
|Claimant short name:||ELIO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Claimant's attorney:||LAW OFFICES OF HARRY I. KATZ, P.C.
By: Harry I. Katz, Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By: John M. Healey, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 15, 2018|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on defendant's motion for summary judgment:
Notice of Motion, Attorney's Supporting Affirmation and Exhibits.........................1
Claimant's Affirmation in Opposition and Exhibit..................................................2
Defendant's Reply Affirmation and Exhibit.............................................................3
Claim No. 127975 alleges that on March 28, 2016 at approximately 10:45 p.m., claimant was driving a motor vehicle northbound on Lee Boulevard in Yorktown, County of Westchester, State of New York, when his vehicle was struck at the intersection by a westbound vehicle driven by Zachary Mackey on Route 6 (Defendant's Ex. A). At the time of the impact, claimant had a green traffic signal and Mackey had a red traffic signal. A Police Accident Report is attached to the claim. Claimant alleges that the accident was due to defendant's installation and maintenance of the westbound traffic signal that changed too rapidly from green to yellow to red.
Defendant moves for summary judgment arguing that the sole proximate cause of the accident was the negligence of the driver (Mackey) who proceeded through the westbound traffic signal and struck claimant's vehicle. Defendant also argues that there is an absence of proof that the westbound traffic signal malfunctioned at the time of the accident and that defendant had notice of any alleged malfunction prior to the accident. In support of its summary judgment motion, defendant includes the examination before trial transcripts of claimant (Ex. C), Mackey (Ex. E) and Maureen Kuinlan, PE, a civil engineer with the New York State Department of Transportation (NYSDOT) (Ex. D). Defendant also includes an affidavit of Kuinlan (Ex. F) and the affidavit of David P. Lock, a sign-crew supervisor with NYSDOT (Ex. G).
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 (see 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 ).
Here, the Court finds that there are material issues of fact which preclude granting summary judgment and require a trial where the Court may evaluate and weigh the credibility of the witnesses and the evidence presented. Significantly, there is an issue of fact as to whether the westbound traffic signal was functioning properly at the time of the accident and what, if any, impact the operation of the traffic signal had on the driver, Mackey. It is further noted that the time intervals of changing traffic signals is not within the ordinary knowledge of lay persons and requires expert testimony as to the standard and appropriate amount of time generally accepted in the industry for cycling traffic signals. It is also noted that Mackey did not plead guilty to proceeding through a red light; Mackey's traffic tickets for speeding and running a red light have not yet been resolved; and Mackey's testimony on this issue is inconclusive. Thus, contrary to defendant's arguments, defendant has not established that Mackey's conduct was the sole proximate cause of the accident and this issue must await resolution at trial.
The Court finds that defendant has failed to meet its burden of establishing entitlement to judgment as a matter of law on the issue of liability.
Accordingly, defendant's motion for summary judgment is DENIED.
February 15, 2018
White Plains, New York
Judge of the Court of Claims