Crist v. Rosenberger
| Decision Date | 29 April 2021 |
| Docket Number | EF008622-2017 |
| Court | New York Supreme Court |
| Parties | Shawn CRIST, as Guardian Ad Litem of Leroy Crist, III, an Adult Incapable of Adequately Prosecuting or Defending his Interest, Plaintiff, v. Robert ROSENBERGER, Defendant. |
FINKELSTEIN & PARTNERS, LLP, Attorneys for the Plaintiff, Office & P.O. Address, 1279 Route 300, P.O. Box 1111, Newburgh, New York 12551
CONNOR, McGUINNESS, CONTE, DOYLE, OLESON, WATSON & LOFTUS, Attorneys for the Defendant, Office & P.O. Address, One Barker Ave., Suite 675, White Plains, New York 10601
(1) A motion by the Plaintiff, pursuant to CPLR 3212, for summary judgment on the issue of liability, and dismissing the Defendant's first affirmative defense; and (2) a cross motion by the Defendant, pursuant to CPLR 3211(a)(2), to dismiss the action for lack of subject matter jurisdiction.
It is hereby, ORDERED, the motion is granted and the cross motion denied.
The Plaintiff Leroy Crist, while a pedestrian, was allegedly injured when he was struck by a vehicle being driven by the Defendant Robert Rosenberger. At the time, the Defendant was in the course of his employment as a probation officer.
The Plaintiff moves for summary judgment on the issue of liability.
The Defendant cross moves to dismiss the complaint for lack of subject matter jurisdiction. The Defendant argues that, because he was in the course of his employment at the time of the accident, Correction Law § 24 requires that this action be brought in the Court of Claims against the State.
The motion is granted and the cross motion denied.
Initially, it is noted, this action is being prosecuted by the Plaintiff's nephew, Shawn Crist, as guardian at litem. According to Crist, the Plaintiff, in addition to the injuries caused by the accident, is developmentally disabled and suffers from schizophrenia. As a result, he is unable to testify as to the happening of the accident.
Accordingly, the relevant facts must be drawn from the testimony of the Defendant, the police report of the accident, and a video recording of the accident.
From the record presented, the following may be discerned.
The accident occurred on Anne Street in Newburgh, New York on September 1, 2017. Anne Street run east to west.
The Court was not provided with a copy of the video recording of the accident. However, the Plaintiff submitted still shots from the same. Based on the stills, the following may be determined.
Near the place where the accident occurred is a cross walk which runs at a westerly angle south to north across Ann Street.
The Plaintiff first appears on the south side of Ann Street approximately 6 to 10 feet to the left of the cross walk. He is walking north, parallel to the cross walk.
The Defendant's vehicle appears on the right, traveling east to west.
When the Plaintiff and the Defendant's vehicle are both in the right (easterly) lane, the right driver's side of the Defendant's vehicle contacts the right side of the Plaintiff's body. The vehicle veers right and stops.
At an examination before trial, the Defendant testified as follows.
On September 1, 2017, he was driving in the City of Newburgh in the course of his employment as a parole officer for the New York State Department of Corrections and Community Supervision. He was driving his own vehicle. He used his own vehicle if a state owned vehicle was not available. The state reimbursed him for gas and tolls. The accident occurred when he was driving from one parolee to another. The weather was dry. His vehicle was in good mechanical condition.
Just prior to the accident, he was traveling on Ann Street at no more than ten miles an hour. Ann Street is a two-way road with one lane of travel in each direction.
After he was on Anne Street for less than a minute, while between two intersections, his vehicle came into contact with what he believed was the Plaintiff's leg. He first saw the Plaintiff when he was approximately 15 yards away. He was standing in the street, near parked vehicles. The Plaintiff was on the south side of the street, and he was on the north side. The Plaintiff was by himself, standing still.
When he first saw the Plaintiff, he braked to slow down. He was then traveling between five and ten miles per hour when the outer driver's side corner of his vehicle came into contact with the Plaintiff's leg. The collision cracked his bumper, and the Plaintiff struck his windshield.
Prior to being struck, the Plaintiff was stopped in the middle of the roadway in the westbound lane of travel. He was walking very slow and stopped at several points.
After the impact, he saw the Plaintiff lying in the street. The police were summoned.
Finally, he did not recall if he told a subsequently investigating officer that the Plaintiff "darted out in front" of him.
The police officer who investigated the accident, Roman Scuadroni, testified at an examination before trial that the accident occurred near the Department of Social Services building between 111 Broadway and 141 Ann Street, near a big parking lot for county employees (Scuadroni, p. 13). Ann Street is a two-way undivided street with one lane of travel in each direction, and parking lanes on both sides of the street (Scuadroni p. 13). Scuadroni did not know if there was a cross-walk in the area (Scuadroni p. 13,14). Scuadroni knew the Plaintiff from seeing him around in the area, but did not know his name (Scuadroni p. 20). He knew the Defendant, as they had worked together on prior occasion (Scuadroni p. 21,22).
Scuadroni "thinks" that the Defendant might have said that he was driving and "this gentleman just jumped in front of his car." (Scuadroni p. 26).
Scuadroni observed plastic from one of the Defendant's fog lights in the middle of the roadway (Scuadroni p. 27). He did not ask the Defendant how fast he was driving at the time of the impact (Scuadroni p. 28).
In box "19" of his report, Scuadroni indicated that an apparent contributing factor to the accident was driver inattention (Scuadroni p. 39). When asked why he wrote that, he testified: "He [the Defendant] might have got distracted, he didn't see this gentleman walking in front of him." (Scuadroni p. 39).
The Plaintiff moves for summary judgment on the issue of liability, and to dismiss the Defendant's first affirmative defense of contributory negligence.
In support of the motion, the Plaintiff submits an affirmation from counsel, George Kohl.
Kohl asserts that the Plaintiff is in a nursing home and apparently does not have the capacity to testify relative to this accident. Thus, Shawn Crist, his nephew and guardian ad litem, provided testimony before trial.
Shawn Crist testified, inter alia , that the Plaintiff was 63 years old, had a mental disability and acted "a little younger; and could not remember anything about the accident (Crist pp. 19-20, 30). Further, that the accident occurred about two blocks from the Plaintiff's apartment, as he walking to a food pantry, which was his regular practice (Crist p. 27).
Kohl argues that it may be found that the Defendant was negligent as a matter of law because he violated Vehicle & Traffic Law § 1146(a), which requires drivers to exercise due care to avoid colliding with any pedestrians.
Moreover, he asserts, the damage to the Defendant's vehicle demonstrates that the impact occurred a speed greater than 5 to 10 miles per hour, to wit: there is a crack in the bumper on the driver's side of the vehicle, the windshield was cracked, and a part was knocked off of the vehicle.
Further, Kohl argues, significantly, the Defendant admitted that he did not apply his brakes before the impact, and did not remember stating that the Plaintiff "darted out in front of him."
Kohl notes that the Plaintiff was able to obtain a video of the accident produced by the County which showed the Defendant driving into the Plaintiff without stopping, slowing or swerving. This is true, Kohl notes, even though the Defendant stated that he first saw the Plaintiff when he was about 45 feet away.
Moreover, Kohl avers, the video shows both that the Plaintiff did not in fact dart in front of the Defendant's vehicle, and that the Defendant could have easily avoided striking the Plaintiff by simply stopping or veering his vehicle to the right before impact.
Kohl notes that the Defendant did not offer any reason for his failure to either apply his brakes sooner, or to swerve his vehicle.
In sum, Kohl argues, it may be found as a matter of law that the Defendant was negligent in the happening of the accident.
By contrast, he asserts, that the Plaintiff was crossing the street at a point other than in a crosswalk does not constitute negligence as a matter of law.
In any event, Kohl argues, even if the Plaintiff was also negligent for crossing the street in an area other then in a crosswalk, such an act was not a proximate cause of the accident, given the Defendant's testimony supra.
In sum, he argues, the Court should grant the Plaintiff summary judgment on the issue of liability.
The Defendant cross moves to dismiss the complaint for lack of subject matter jurisdiction.
In support of the cross motion, the Defendant submits an affirmation from counsel, Dennis Doyle.
Doyle asserts that, at the time of the accident, the Defendant was a parole officer in the course of his employment and acting within the scope of his duties.
Doyle notes that, pursuant to Correction Law § 24 :
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