New York State Court of Claims

New York State Court of Claims
VERSACE v. THE STATE OF NEW YORK, # 2019-032-028, Claim No. 130424, Motion No. M-93359


Claimant's motion for summary judgment is denied.

Case information

UID: 2019-032-028
Claimant(s): KYLE VERSACE
Claimant short name: VERSACE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130424
Motion number(s): M-93359
Cross-motion number(s):
Claimant's attorney: O'Connor & Partners, PLLC
By: Joseph E. O'Connor, Esq.
Defendant's attorney: Hon. Letitia James, Attorney General
By: Glenn C. King, Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 1, 2019
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


The instant claim was filed on October 17, 2017, seeking damages for injuries sustained when claimant, who was operating a motorcycle, collided with a car driven by a State of New York employee. The accident occurred on September 28, 2017 at approximately 5:36 p.m. at the intersection of Leggs Mills Road and Sawkill-Ruby Road in the Town of Ulster, New York. Claimant now moves for summary judgment, and defendant opposes the motion.

Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 [1980]). The proponent of a motion for summary judgment must establish a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here, the claimants (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212 [b]).

Claimant argues that he is entitled to summary judgment and has submitted proof showing that defendant's employee, David Pollock, violated Vehicle and Traffic Law (VTL) 1143 when he collided with claimant's motorcycle, and therefore no question of material fact exists as to defendant's negligence. In support of his motion, claimant submitted deposition transcripts of both claimant and Mr. Pollock, as well as the Police Accident Report and pictures of the accident scene.(1)

On the date of the accident, claimant was traveling home from Kingston on Leggs Mills Road (O'Connor Aff. Exhibit E, p. 10). As he went to turn left onto Sawkill-Ruby Road, Mr. Pollock was stopped at a stop sign (id.). There was a large van in front of claimant, and claimant was approximately ten car lengths behind the van (id.). The van turned right onto Old Kings Highway (id. at 11). Claimant's intended path was to travel straight through the intersection and make a gradual turn to the left (id.). As claimant proceeded through the intersection, Mr. Pollock pulled out and collided with him (id. at 10). Claimant averred that Mr. Pollock failed to signal before making the left turn (Versace Aff. 3).

Mr. Pollock testified that, at the time of the accident, he was traveling southbound on Old Kings Road (O'Connor Aff. Exhibit F, p. 9). His intended path was to make a left turn and head easterly on Leggs Mills Road (id. at 11). He testified that he stopped at the stop sign located at the intersection of Leggs Mills Road and Old Kings Highway (id. at 12). He did not recall where his front bumper was with respect to the stop sign when he came to a stop (id. at 15-16). As Mr. Pollock was stopped at the intersection, he observed four vehicles approaching the intersection from his left side (id. at 17). He testified that a van "proceeded towards Old Kings Road, then took a right" (id. at 18). He did not see any vehicles approaching behind the van (id. at 20). He then began to make a left-hand turn onto Leggs Mills Road, at which point he collided with claimant's motorcycle (id.). Mr. Pollock's vehicle was on Leggs Mills Road before he saw the motorcycle (id. at 20). He testified that he "believe[d] [his vehicle] was in [his] lane of travel" (id. at 21). Mr. Pollock stated that he did not know which lane the motorcycle was in, but it was traveling in a westerly direction (id.). He believed that his entire car was in the eastbound lane of Leggs Mills Road when the collision occurred (id. at 24). He did not know whether any portion of his vehicle was in the westbound lane when the collision occurred (id.). He also did not know how far his car moved from the point of impact to where it was brought to rest on the side of the road (id. at 27).

It appears to the Court that claimant's reliance on VTL 1143 is misplaced. While it is true that a driver's violation of the VTL is prima facie evidence of negligence (Fillette v Lundberg, 150 AD3d 1574, 1575 [3d Dept. 2017]; Maisonet v Roman, 139 AD3d 121, 123 [1st Dept. 2016], appeal dismissed, 27 NY3d 1062 [2016]), claimant has not established that Mr. Pollock violated VTL 1143 before colliding with claimant's motorcycle. VTL 1143 states that "[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed" (Vehicle and Traffic Law 1143 [emphasis added]). Here, the evidence indicates that the collision occurred at the intersection of two roadways, therefore VTL 1143 is inapplicable.

Moreover, by comparing claimant's deposition testimony with Mr. Pollock's deposition testimony, a question of fact arises as to in which lane of Leggs Mills Road the collision occurred. The map of the general vicinity of the accident submitted as Exhibit A to defendant's affirmation in opposition to claimant's motion shows that Leggs Mills Road splits into two separate roadways. One roadway acts as a connector to Sawkill-Ruby Road and splits to the left if looking at the scene from an aerial view. The other roadway is Old Kings Highway, which splits to the right. Claimant testified that he intended to make a "gradual turn" left on Sawkill-Ruby Road as he was driving on Leggs Mills Road (O'Connor Aff. Exhibit E, p. 11). Mr. Pollock testified that he was stopped at Old Kings Highway and then made a left turn onto Leggs Mills Road (O'Connor Aff. Exhibit F, pp. 11, 20). The lane in which the collision took place, and which driver had the right of way, is not clear from the pictures of the scene of the accident (O'Connor Aff. Exhibit H), or from the deposition testimony of both claimant and Mr. Pollock. The Court notes that the pictures from the accident scene show that the double yellow lines separating the lanes on the roadway disappear at some point in the intersection where the collision occurred. Additionally, Mr. Pollock testified that his car was not in claimant's lane of travel when the collision occurred (O'Connor Aff. Exhibit F, p. 21), and there is no indication that Mr. Pollock was charged with violating any section of the Vehicle and Traffic Law. Thus, the Court cannot conclude based on the evidence presented on this motion that claimant has established a prima facie claim of negligence against defendant.

Based upon the foregoing, it is hereby

ORDERED that claimant's motion for summary judgment (M-93359) is DENIED. Claim number 130424 will proceed to a trial on liability on July 30-31, 2019. The parties shall appear for a pre-trial telephone conference on July 24, 2019 at 10:00 a.m.

May 1, 2019

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, dated January 3, 2019; and Affirmation, affirmed by Joseph E. O'Connor, Esq. on January 3, 2019, with Exhibits A through H annexed thereto.

2. Affidavit of Kyle Versace, sworn to on January 3, 2019.

3. Affirmation in Opposition to Claimant's Motion for Summary Judgment, affirmed by Glenn C. King, AAG on February 13, 2019, with Exhibits A through B annexed thereto.

1. Defendant argues that the Police Accident Report cannot be relied upon because (1) claimant has not shown that the officer who wrote the notes was a witness to the accident, and therefore any statements contained therein are hearsay and (2) the Police Accident Report is not authenticated as required by CPLR 4520. The Court agrees. The Police Accident Report is not certified as a business record and there is no indication that the police officer personally observed the accident (Wynn v Motor Vehicle Acc. Indemnification Corp., 137 AD3d 779, 780 [2d Dept. 2016]; Adobea v Junel, 114 AD3d 818, 820-821 [2d Dept. 2014]). Moreover, there is no indication from the Police Accident Report that the accident description was provided to the officer by a party to this action, thus the party admission exception does not apply (Scott v Kass, 48 AD3d 785, 785 [2d Dept. 2008]). Accordingly, the Police Accident Report is inadmissible to support claimant's summary judgment motion (Szymanski v Robinson, 234 AD2d 992, 992 [4th Dept. 1996]).