Glitman v. State, 2021-51283

CourtNew York Court of Claims
Writing for the CourtRICHARD E. SISE, J.
Docket Number2021-51283,Claim 133807
PartiesMatthew M. Glitman, Esq., AS ADMINISTRATOR FOR THE ESTATE OF EMILY R. WOOTTON, DECEASED, Claimant, v. The State of New York, Defendant.
Decision Date23 November 2021


The State of New York, Defendant.

No. 2021-51283

Claim No. 133807

Court of Claims

November 23, 2021

Unpublished Opinion

For Claimant: MARTIN, HARDING & MAZZOTTI LLP BY:Peter P. Balouskas, Esq.

For Defendant: HON. LETITIA JAMES, ATTORNEY GENERAL BY:Suzette Corinne Merritt Assistant Attorney General


The following papers were read on defendant's motion to dismiss pursuant to CPLR 3211 and motion for summary judgment pursuant to CPLR 3212:

1. Notice of Motion filed June 9, 2021.

2. Affirmation of Suzette Corinne Merritt, affirmed June 9, 2021, with Exhibits A-C annexed.

3. Affirmation in Opposition of Peter P. Balouskas, Esq., affirmed August 9, 2021, with Exhibits 1-5 annexed.

Filed papers: Claim, Answer

The claim seeks damages for conscious pain and suffering, fear of impending death, and wrongful death, arising from the death of Emily R. Wootton in a head-on collision with an intoxicated driver on Route 9G in the Town of Rhinebeck at approximately 6:00 p.m. on December 7, 2018. The claim alleges negligence and recklessness by defendant arising from the actions of New York State troopers an hour earlier when, after finding Mr. Dancy on the side of the road and out of gas, transported him to a gas station to obtain gas then returned him to his car despite his obvious impairment. In a single motion, defendant moves to dismiss the claim pursuant to CPLR 3211, and for summary judgment pursuant to CPLR 3212. [1] Claimant opposes.

Defendant argues in support of dismissal that the claim fails to state a cause of action for negligence because the allegations show the troopers were engaged in a discretionary government function, and the claim fails to allege a special duty was owed to the deceased by defendant under the circumstances. The motion for summary judgment is based on the affirmative defense of governmental immunity for the troopers' actions. Claimant argues in opposition that: the motion is premature pursuant to CPLR 3211(d) and 3212(f); and the State's liability flows from the special duty that arose through the affirmative negligent act of the State troopers enabling Mr. Dancy, who was visibly intoxicated, to drive his vehicle.

On a motion to dismiss pursuant to CPLR 3211(a)(7), the claim is to be afforded a liberal construction, the facts alleged are presumed to be true, the claimant is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026; Goldman v Metropolitan Life Ins. Co., 5 N.Y.3d 561, 570-571 [2005] [internal quotation marks and citations omitted]; Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). "Whether a [claimant] can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (EBC I, Inc. v Goldman, Sachs & Co., 5 N.Y.3d 11, 19 [2005]).

The motion is supported by an attorney's affirmation and the pleadings. The claim (Ex. B to Merritt Aff.) [2] contains the following material allegations of fact:

"The Claim arises from a two car crash that occurred at approximately 9:10 pm on December 7, 2018. [3]

The crash took place on State Route 9G approximately 50' north of Vlei Road, in the Town of Rhinebeck, Dutchess County, State of New York. Immediately before the crash, Robert J. Dancy, was operating a 1997 Ford Explorer generally southbound on State Route 9G. Decedent, Emily R. Wootton, was operating a 2007 Chevrolet Cobalt generally northbound. The crash occurred when Robert J. Dancy crossed the highway's center and collided head-on with the motor vehicle operated by the decedent. At the time of the crash, Robert J. Dancy, was significantly and obviously impaired by alcohol, drugs and/or other intoxicants. Less than one hour before the crash, Robert J. Dancy, was found by New York State Troopers along the same highway after Mr. Dancy's motor vehicle ran out of gas. He was assisted by New York State Troopers who brought him, in their patrol vehicle, to a local gas station, aided him in placing gas in a carry gas can, transported him back to his disabled motor vehicle and released him to fill his gas tank, to again operate his motor vehicle despite his significant and obvious impairment, and to proceed to the location of the subsequent crash. All the while, Mr. Dancy was significantly and obviously intoxicated or otherwise impaired. As the result of the crash, Mr. Dancy killed Emily R. Wootton..."

The claim also alleges that the troopers failed to comply with rules, regulations, protocol and training by failing to take steps necessary to assess the condition of Mr. Dancy, in releasing him and in failing to protect the deceased and the traveling public (Ex. B at ¶ 6).

In opposition to the motion, claimant submits an attorney's affirmation (Balouskas Aff.) [4] annexing five exhibits. A court may freely consider affidavits submitted by the claimant to remedy any defects in the claim (see Nonnon v City of New York, 9 N.Y.3d 825, 827 [2007]), and may assess the claim "in light of the evidentiary material submitted in conjunction with the CPLR 3211 motion" (Bello v Cablevision Sys. Corp., 185 A.D.2d 262, 263 [2d Dept 1992], lv denied 80 N.Y.2d 761 [1992]; see CPLR 3211[c] [allowing either party to submit admissible evidence]; Chrysler Capital Corp. v Hilltop Egg Farms, Inc., 129 A.D.2d 927, 928 [3d Dept 1987] [finding lower court properly considered attorney's affirmation with attached contract opposing motion to dismiss under CPLR 3211(a)(7)]). Where evidentiary material is considered, the question is whether claimant has a cause of action (see Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275 [1977]).

Exhibit 1 is a certified copy of the police records containing, inter alia, the transcript of Investigator Chad Greer's December 7, 2018 oral application, made under oath at 9:30 p.m., for issuance of a court order compelling Mr. Dancy to provide a blood sample for chemical analysis (Ex. 1 at 87-110). The investigator states that Mr. Dancy smelled of alcohol at the scene of the crash, and a Breathalyzer test showed his blood alcohol level was.18%. After blood was taken at 9:41 p.m. and two vials of blood were analyzed, the toxicology report shows blood alcohol levels of.146% and.20% and a positive result for marijuana (Ex. 5). [5] The records also contain a statement by Ruth Martz, an employee at the gas station where the troopers brought Mr. Dancy before the crash, that she smelled alcohol "coming from his body" (Ex. 1 at 107).

In order to prevail on a negligence claim, "a [claimant] must demonstrate (1) a duty owed by the defendant to the [claimant], (2) a breach thereof, and (3) injury proximately resulting therefrom" (Solomon v City of New York, 66 N.Y.2d 1026, 1027 [1985])." 'When a negligence claim is asserted against [the State], the first issue for a court to decide is whether the [State] was engaged in a...

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