Claimants' motion for summary judgment on the issues of negligence and serious injury as defined by Insurance Law 5102 (d) is granted. Vehicle in which claimant was a passenger was rear-ended at a high speed by a NYS Trooper, who later pled guilty to reckless driving in violation of Vehicle and Traffic Law 1212.
|Claimant(s):||GEORGE COLE and LINDA COLE, his spouse|
|Claimant short name:||COLE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The original claim lists State of New York, State of New York Executive Department and New York State Police as defendants. The New York State Executive Department and New York State Police are agencies of the State without the capacity to sue or be sued. The caption of the proposed claim has been amended sua sponte to reflect the only proper defendant.|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||LIPSITZ GREEN SCIME CAMBRIA, LLP
BY: Gregory P. Krull, Esq.
Michael P. Stuermer, Esq.
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Carlton K. Brownell, III, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 28, 2020|
|See also (multicaptioned case)|
Claimants George Cole and Linda Cole filed claim no. 133678 on September 23, 2019 alleging that on July 15, 2019 claimant George Cole (Claimant) was a passenger in a 2019 Dodge Caravan and was seriously injured when a 2016 Dodge police cruiser operated by New York State Trooper Stephen C. Barker (Trooper Barker) collided with the rear of the vehicle in which Claimant was an occupant. The accident took place on the New York State Thruway (I-90) approximately five miles east of Exit 59. An answer was served by the State of New York denying the allegations in the claim on October 25, 2019. The claimants move for summary judgment on the issues of negligence and serious injury as defined by Insurance Law § 5102 (d).
On July 15, 2019 at approximately 1:08 p.m., a 2019 Dodge Caravan driven by Harry Gibbons and owned by EAN Holdings LLC was traveling westbound on the I-90 in the Town of Sheridan, New York. Mr. Gibbons was traveling to Jamestown, New York with four co-workers, including Claimant. The driver and occupants of the van were employed by Enterprise Rent-A-Car and were traveling in the course of their employment.
The Police Accident Report (Exhibit D) dated July 24, 2019 and prepared by New York State Police Sargeant Jeffrey A. Ebmeyer (Sgt. Ebmeyer) states that Claimant was a passenger in the van and both the van driven by Gibbons and Trooper Barker's police cruiser were traveling in a westbound direction on the New York State Thruway (I-90) in the Town of Sheridan, New York approximately five miles east of Exit 59 (Dunkirk/Fredonia exit). Sgt. Ebmeyer stated that on the day of the accident the weather was clear and the roadway was straight, level and dry. He also stated that the van had slowed due to traffic ahead slowing down and that Trooper Barker failed to observe the van slowing down and struck the rear of the van. In his report, Sgt. Ebmeyer listed "Driver Inattention/Distraction" for the Barker vehicle as the only listed "Apparent Contributing Factors" that caused this accident.
The NYS Police Troop A Collision Reconstruction Report dated December 9, 2019 and prepared by NYS Police Investigator Kyle D. Folts (Inspector Folts) stated that the westbound lanes were relatively straight and level and the weather conditions at the time of the subject accident were clear. Inspector Folts stated in this report that Trooper Barker, who was driving the police vehicle in the course of his employment, collided with the rear of the van that had been slowing for traffic ahead in the left lane. Investigator Folts calculated that Trooper Barker's vehicle was going 81 mph at the time he applied his brake less than five seconds prior to impact and struck the van at a speed of 73 mph. Investigator Folts concluded his report by stating that Trooper Barker failed to observe and react to the slowing traffic ahead of him and that his failure to do so was the primary contributing factor that resulted in this accident (Exhibit G).
On December 30, 2019, Trooper Barker was charged in the Sheridan Town Court with Reckless Endangerment in the Second Degree in violation of NYS Penal Law § 120.20 and Reckless Driving in violation of NYS Vehicle and Traffic Law § 1212. The Information filed by New York State Police Investigator John J. McCusker (Exhibit E) affirmed under penalty of perjury that the Dodge Caravan was slowing for traffic restrictions and was struck from behind by the NYS Police vehicle operated by Trooper Barker; that the data download from the Dodge Caravan indicated that it was traveling at 17 mph about five seconds prior to impact and that its brakes had been applied; that the police vehicle was traveling at 77 mph about five seconds prior to impact and was accelerating and had reached a speed of 82 mph at 0.6 seconds before impact and 73 mph at impact. On January 16, 2020, Trooper Barker pled guilty to the charge of Reckless Driving in violation of NYS Vehicle and Traffic Law § 1212 (Exhibit H).
DECISION AND LAW
Summary judgment is a drastic remedy which will only be granted where the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 ). The proponent of a summary judgment motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 ; Zuckerman v City of New York, 49 NY2d 557 ). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, its motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of a triable issue of fact. (Alvarez v. Prospect Hosp., supra at 324; Zuckerman v City of New York, supra at 562). In deciding a summary judgment motion, the Court must view the evidence in a light most favorable to the non-moving party (Haymon v Pettit, 9 NY3d 324 ).
It has been held that in a case involving a rear-end collision a prima facie case of negligence is established against the operator of the rear vehicle where the vehicle in front has stopped or is stopping (Baker v Savo, 142 AD3d 1368 [4th Dept 2016]; Barron v Northtown World Auto, 137 AD3d 1708 [4th Dept 2016]). In such instances, the operator of the rear vehicle has a duty to come forward with an adequate non-negligent explanation for the accident (Barron, Id. at 1709, citing to Borowski v Ptak, 107 AD3d 1498 [4th Dept 2013]). For purposes of this motion, the Court may consider the Police Accident Report and the Troop A Accident Reconstruction Report as they were each prepared by a New York State Trooper and Investigator, respectively, who were acting within the scope of their duties; that the facts and conclusions in these reports were based upon their investigations; that as the party defendant, the conclusions in these reports are deemed admissions of a party; and that the accident reconstruction report meets the criteria of a business record within the meaning of CPLR Rule 4518, (Jackson v Trust, 103 AD3d 851 [2d Dept 2013]; Asare v Ramirez, 5 AD3d 193 [1st Dept 2004]; Matter of Travelers Indem. Co. v Morales, 188 AD2d 350 [1st Dept 1992]) .
The Police Accident Report and the Troop A Accident Reconstruction Report establish that the van had slowed and stopped prior to impact and that Trooper Barker failed to observe and react to slow and stop his vehicle in order to avoid the collision. In opposition, the defendant does not contest that it is liable for the acts or omissions of its employee, Trooper Barker, and has not come forward with any non-negligent explanation for Trooper Barker's conduct. As a result, the Court finds that claimants have met their burden of proof to establish that the defendant was negligent and that such negligence was the proximate cause of this accident.
Furthermore, as a result of the subject accident, Trooper Barker pled guilty to a misdemeanor offense of reckless driving in violation of Vehicle and Traffic Law § 1212, which provides, in relevant part, that "[r]eckless driving shall mean driving or using any motor vehicle . . . in a manner which unreasonably interferes with the free and proper use of the public highway, or unreasonably endangers users of the public highway." Trooper Barker's guilty plea to reckless driving also establishes the defendant's liability for negligence in causing the claimants' injuries (Bazazian v Logatto, 299 AD2d 433 [2d Dept 2002]; see Allstate Ins. Co. v Zuk, 78 NY2d 41). Accordingly, there is no question of fact to raise a triable issue and claimants' motion for summary judgment on the issue of negligence is granted.
The claimants also seek summary judgment on the issue of serious injury. In order for claimant to recover for non-economic loss resulting from the subject motor vehicle accident, Insurance Law § 5102 (d) requires that claimant first establish that he sustained a "serious injury". A serious injury is defined by Insurance Law § 5102(d) as:
"a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment."
In support of their motion, claimants submit the affirmation of Joseph M. Kowalski, M.D., the Claimant's treating orthopedist. Dr. Kowalski affirms with a reasonable degree of medical certainty that the motor vehicle crash of July 15, 2019 was a substantial factor in causing multiple fractures of Claimant's ribs and thoracic vertebrae and that the T7-8 levels were acutely and permanently damaged and have resulted in permanent paraplegia. Dr. Kowalski also affirms that he performed surgery with Dr. Joshua Meyers on July 16, 2019 in which they performed spinal stabilization surgery upon Claimant at T6-7 to T8-9 and a laminectomy with decompression at T7-8. Dr. Kowalski affirms that it is his opinion with a reasonable degree of medical certainty that Claimant sustained a serious injury within the meaning of the Insurance Law § 5102(d) in that he sustained a fracture; significant limitation of use of a body function or system; permanent consequential limitation of use of a body organ or member; and permanent loss of use of a body organ, member, function or system in his lower extremities. The defendant does not oppose the motion with respect to the issue of whether Claimant has sustained a serious injury. The Court finds that claimants have sustained their burden to establish the existence of a serious injury within the meaning of Insurance Law § 5102(d) under the four separate categories and that there is no question of fact to raise a triable issue. Accordingly, claimants' motion for summary judgment on the issue of serious injury is granted.
Based on the foregoing, claimant's motion no. M-95673 for summary judgment with respect to the issues of negligence and serious injury is granted.
August 28, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following have been read and considered by the Court:
1) Notice of motion and affirmation of Gregory P. Krull, Esq. and Michael P. Stuermer, Esq., dated July 15, 2020 with annexed Exhibits A-J, along with claimant's affidavit sworn to July 8, 2020 with attached Exhibit A; Affirmation of Joseph M. Kowalski verified on July 10, 2020 with attached Exhibit A; Claimant's Memorandum of Law dated July 15, 2020;
2) Affirmation in opposition of Assistant Attorney General Carlton K. Brownell, Esq., dated July 28, 2020; and
3) Reply affirmation of Gregory P. Krull, Esq. and Michael P. Stuermer, Esq. verified on August 7, 2020.