Summary judgment granted to claimant passenger motor vehicle accident
|Claimant(s):||JASON BLANCO, a minor by his father and legal guardian, JOSE OSCAR GARCIA|
|Claimant short name:||BLANCO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The Court has, sua sponte, amended the caption to reflect the only proper party defendant.|
|Claimant's attorney:||CANNON & ACOSTA, LLP
By: Roger Acosta, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
Attorney General for the State of New York
By: Albert E. Masry, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 8, 2019|
|See also (multicaptioned case)|
The following papers numbered 1-3 were read and considered by the Court on claimant's motion for, inter alia, summary judgment:
Notice of Motion, Attorney's Supporting Affirmation, Attorney's Affirmation of Good Faith and Exhibits...........................................................................................1
Attorney's Affirmation in Opposition.........................................................................2
Claimant's Reply Affirmation and Exhibit...............................................................3
This claim arises out of a motor vehicle accident that occurred on October 28, 2016 at 1:23 p.m. when a van operated by the New York State Office of Children and Family Services (NYS Services) was proceeding northbound in the left lane of the Taconic State Parkway and left the roadway, struck a tree and came to rest on the center median. Claimant, Jason Blanco, was a 16-year-old rear-seat passenger in the van who was under the care of NYS Services at the time of the accident and was not wearing a seatbelt. There was a video camera mounted inside the van operated by the State employee which recorded the events that unfolded inside the van leading up to and including the accident. Claimant sustained serious physical injuries as a result of the accident.
Claimant moves for summary judgment on the issue of liability and includes his deposition transcript (Claimant's Reply, Ex. A), the bill of particulars (Claimant's Ex. A), the Police Accident Report (id.) and a copy of the video recording taken from the inside of the State vehicle depicting the driver, the front-seat passenger and claimant, as the accident occurred (Ex. C). Defendant opposes claimant's motion for summary judgment on two grounds. One, defendant argues that to the extent that the police accident report contains any description as to how the accident occurred, such information is inadmissible hearsay and therefore cannot be considered by the Court on claimant's motion for summary judgment. Two, defendant argues that the video does not depict the roadway and therefore it is insufficient to show that defendant was negligent in causing the accident (Attorney's Affirmation, ¶¶ 4-6).
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 (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 ). "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 claimant has met his burden of establishing entitlement to summary judgment on the issue of liability (see Pane v Cisilino, 144 AD3d 567 [1st Dept 2016] [summary judgment awarded to passenger in one-car motor-vehicle accident]). Defendant's opposition papers, which consists only of an Attorney's Affirmation in Opposition and not an affidavit of someone with knowledge of a non-negligent explanation for the accident, failed to raise any material issues of fact warranting a trial on the issue of liability (see Al-Nashash v Soutra Limousine Inc., 115 AD3d 534 [1st Dept 2014] [attorney's affirmation, without an affidavit of someone with knowledge of a non-negligent explanation for the accident did not raise an issue of fact]). The Court has also considered defendant's arguments in opposition to claimant's motion for summary judgment and finds them to be unavailing. First, with regard to the police accident report, the Court has not considered any information contained in the police accident report regarding how the accident occurred. Two, with regard to the video, defendant's argument regarding the absence of any depiction of the roadway in the video is of no moment as defendant does not allege that the roadway condition was a contributing cause of the accident.
Accordingly, claimant's motion for summary judgment finding defendant 100 percent liable for the accident is GRANTED.(2)
A trial on the issue of damages will be scheduled as soon as practicable.
April 8, 2019
White Plains, New York
Judge of the Court of Claims
2. In light of the Court's determination on the issue of liability, claimant's application for an order precluding the driver and the front-seat passenger from testifying at the liability trial is rendered moot. Claimant's failure to wear a seatbelt will be considered at the damages trial regarding the effect, if any, to the damages he sustained.