Kaiser v. State
| Decision Date | 20 December 1967 |
| Docket Number | No. 45918,45918 |
| Citation | 285 N.Y.S.2d 874,55 Misc.2d 576 |
| Parties | Robert J. KAISER and Mary Elizabeth Kaiser, Claimants, v. The STATE of New York, Defendant. Claim |
| Court | New York Court of Claims |
This is a motion for summary judgment in a claim by Robert J. Kaiser and Mary Elizabeth Kaiser, the claimants herein, against the State of New York, for damages flowing from the personal injuries sustained by Mary Elizabeth Kaiser in an accident at Mr. Von Hoevenberg Bobsled Run on February 14, 1965.
The defendant, State of New York, cross-moved for an order dismissing the claim upon the grounds that the Court lacked jurisdiction by reason of untimely service upon the Attorney General; that the claim had been released; and, that claimants assumed the risk. The State also opposed the claimants' motion on the grounds that summary judgment is not available in the Court of Claims; and, in any event that significant issues of fact exist which can only be determined after trial.
The jurisdictional question of untimely service was resolved upon the oral argument of the motion. Judge Sidney Squire, of this Court, granted these claimants the right to file this claim on or before December 10, 1965, by order dated November 23, 1965. Said order was not appealed by the defendant and the claim was thereafter duly filed.
We thought the question of the power of the Court of Claims to render summary judgment had been fully and most cogently determined in the affirmative in Vern Norton, Inc. v. State of New York, 27 A.D.2d 13, 14, 275 N.Y.S.2d 564, 565; and, reaffirmed in Chemical Bank N. Y. Trust v. State of New York, 27 A.D.2d 427, 428, 279 N.Y.S.2d 813. Cf. Higgins & Sons v. State of New York, 20 N.Y.2d 425, 429, 231 N.E.2d 285, 287, wherein the Court of Appeals stated in dicta: 'Under C.P.L.R. 3212 (subd. (e)), the court (Court of Claims) could have granted partial summary judgment in plaintiff's favor in the amount of the undisputed portion of his claim.' (Last matter in brackets added). Certainly, zeal in the performance of one's responsibilities is to be greatly admired. However, we also recommend to the Department of Law of the State the doctrine of Stare decisis et non quieta movere.
There is, of course, no question that a party may demand the remedy of summary judgmemt in a cause which sounds in tort. C.P.L.R. 3212, subd. (b); Appel v. Root, 18 A.D.2d 686, 236 N.Y.S.2d 5, affd. w/o op. 13 N.Y.2d 748, 241 N.Y.S.2d 870, 191 N.E.2d 920; Cooper v. Greyhound Bus Corp., 13 A.D.2d 173, 174, 215 N.Y.S.2d 281, 282; 4 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3212.03. However, such relief must be granted with caution and only where it becomes crystal clear that no genuine fact of substance remains at issue between the parties. (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 504, 144 N.E.2d 387, 392, mot. for rearg. den. 3 N.Y.2d 941, 166 N.Y.S.2d LX, 145 N.E.2d 387; Hood v. Murray, 25 A.D.2d 163, 164, 268 N.Y.S.2d 281, 282, app. dsmd. not final order 17 N.Y.2d 911, 272 N.Y.S.2d 133, 218 N.E.2d 899; Connell v. Buitekant, 17 A.D.2d 944, 234 N.Y.S.2d 336; Schneider v. Miecznikowski, 16 A.D.2d 177, 178, 226 N.Y.S.2d 944, 945; Gerard v. Inglese, 11 A.D.2d 381 383, 206 N.Y.S.2d 879, 882; Esteve v. Abad, 271 App.Div. 725, 727, 68 N.Y.S.2d 322, 324.)
We had before us during our consideration of the motion and cross-motion herein, affidavits of the two claimants; an examination before trial of five state employees, who were produced for examination by the State pursuant to the direction of a Judge of this Court to produce employees with knowledge; affidavits of claimants' witnesses; and certain other documentary evidence. It should be noted that, although the State conducted examinations before trial of the claimants and their witnesses, Mr. and Mrs. Dunne, it did not present such examinations to the Court as part of its opposing moving papers. The State's attorney did make five page references in his affidavit to the examinations before trial but did not see fit to submit these examinations to the Court for its own perusal and evaluation. The opposing papers included an affidavit from the Assistant Attorney General which, although it did not so state, had to be made on information and belief insofar as the facts were concerned; and must therefore in that respect be considered '* * * pure hearsay, valueless and must be disregarded (Di Sabato v. Soffes, 9 A.D.2d 297, 193 N.Y.S.2d 184; Cohen v. Pannia, 7 A.D.2d 886, 181 N.Y.S.2d 220).' Hood v. Murray, supra, p. 163, 268 N.Y.S.2d p. 282. The opposing papers also included an affidavit by one, Royal Tallman, the General Park Foreman in charge of the Mt. Von Hoevenberg Bobsled Run. By this affidavit the State apparently seeks to refute the occurrence of the accident by stating that no accident was reported on February 14th; and, to raise an issue as to exact angle of recline assumed by Mrs. Kaiser on the sled after the accident. The initial point is illusory and not a fact of substance. There is no question, in my opinion, that Mrs. Kaiser was injured on the bobsled run on February 14, 1965, at between 2:25 to 2:30 P.M.; and the fact that the claimants did not report the accident or injury on February 14th does not refute the fact of the accident or injury. Further, the question of semantics raised by the State as to whether, as Mr. Tallman and the Assistant Attorney General put it, Mrs. Kaiser was lying horizontal on the sled after the accident, or, as claimants put it in their several affidavits, 'prone on the sled,' 'laid out in the lap of the brakeman,' 'collapsed back into the lap of the brakeman,' 'lying on the sled,' 'lying in the lap of the brakeman', and, the alleged fact that until the driver and two forward passengers got off the sled a person could not 'lie horizontal' on the sled, does not raise an issue of substance. The State has made absolutely no attempt to 'lay bare' the proof the defendant had (Dodwell & Co. Ltd. v. Silverman, 234 App.Div. 362, 254 N.Y.S. 746), perhaps because it had none; or, to present '* * * a genuine and substantial issue of fact.' (Esteve v. Abad, supra, p. 727, 68 N.Y.S.2d p. 324.) See also, Varone v. Calarco, 22 Misc.2d 1085, 199 N.Y.S.2d 755. Mr. Tallman's affidavit also related to the signed waivers and maintenance of the bobsled run which will be discussed at a later point in this decision.
After an examination of the various papers set forth above we find the following facts.
The State Conservation Department of the State of New York operates a bobsled run in the Town of North Elba, known as Mt. Von Hoevenberg Bobsled Run. The claimants and their friends, Michael and Renee Dunne, visited said bobsled run on February 14, 1965 at about 2:00 P.M. and each paid an admission fee of .75. After observing some of the sleds finishing the run, the claimants and Mr. Dunne boarded a truck which carried them to the half-mile point of the run. An admission fee of $1.00 per person was paid so that they might ride as passengers on a bobsled down the run from the half-mile point. At the request of the attendant at the half-mile point, all three signed a printed waived form, State's Exhibits 'A' and 'B'. None of them read the form and it was not read to them by the attendant or any other employee of the State. Helmets, similar in type to football helmets, were supplied to all three by the attendant.
Mr. Dunne preceded the claimants down the run. His affidavit disclosed that toward the end of the ride and approximately the middle of the finish curve, he experienced '* * * a very hard, vertical impact or jolt.' Shortly thereafter, the sled came to a stop and, upon alighting therefrom, he noticed that his brakeman was '* * * lying back and moaning.' Shortly thereafter, claimants' sled arrived at the same area where the injured brakeman was still sitting on the sled, and Mr. Dunne noticed that Mrs. Kaiser was lying in the lap of her brakeman and that she stated she could not sit up or move her legs.
Inquiry was made by both Mr. Dunne and Mr. Kaiser as to the availability of a doctor and they were told that a doctor was not available. Both Mr. Dunne and Mr. Kaiser aided the claimant, Mrs. Kaiser, to a standing position and assisted her to an automobile and thence to the Placid Memorial Hospital emergency room. On the way to the automobile, they passed along the bobsled run just opposite the finish curve and, at this point, Mr. Dunne observed a cut or gash in the wall of the finish curve which he estimated to have been '* * * 3 to 5 feet long.'
Claimants' Exhibit 'B' is a reproduction of the emergency room record of the Placid Memorial Hospital, Lake Placid, New York, which disclosed the time of arrival of the claimant, Mary Elizabeth Kaiser, as 3:00 P.M., February 14, 1965, with a history therein stated as follows: 'Hurt back on bobsled at bobrun.'
Both claimants submitted affidavits which corroborated the facts as stated by Mr. Dunne but, additionally, disclosed that they followed Mr. Dunne down the run one or two sleds after him. Mr. Kaiser sat immediately in front of his wife, who in turn was in front of the brakeman. Neither was able to estimate the speed of the sled but both felt a severe vertical jolt in the middle of the last or finish curve. Mrs. Kaiser stated:
Both of the claimants stated that they observed a large gash or cut in the wall of the last curve. Mr. Kaiser described it as '* * * about 3 to 4 feet long, approximately 1 to 1 1/2 feet wide and approximately 6 inches deep,'...
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Kaiser v. State
...to it, concluded that the State's position, that no accident in fact occurred, was 'illusory and not a fact of substance' (55 Misc.2d 576, 578, 285 N.Y.S.2d 874, 877); that a gash or cut existed in the ice wall of the finish curve of the run which made the bobsled run unsafe to operate; tha......
- Kaiser v. State