Parmerter v. State, 111564.

• Decision Date: 29 March 2012
• Docket Number: No. 111564.,111564.
• Citation: 948 N.Y.S.2d 521,36 Misc.3d 639,2012 N.Y. Slip Op. 22171
• Parties: William D. PARMERTER and Leanne M. Parmerter, As Administrators of the Estate of Shannon Parmerter and as Guardians of the Infant, Kylie Parmerter, Claimants, v. The STATE of New York, Defendant. (Claim No. 111564.). Tressa Giles, As Co–Administratrix of the Estate of John H. Mattia and As Natural Parent and Guardian of the Infants, Tayla Rose Mattia and Cyara Faith Mattia and Elaine R. Mattia, As Co–Administratrix of the Estate of John H. Mattia, Deceased, Claimants, v. The State of New York, Defendant. (Claim No. 111691.).
• Court: New York Court of Claims

36 Misc.3d 639

948 N.Y.S.2d 521

2012 N.Y. Slip Op. 22171

William D. PARMERTER and Leanne M. Parmerter, As Administrators of the Estate of Shannon Parmerter and as Guardians of the Infant, Kylie Parmerter, Claimants,

v.The STATE of New York, Defendant. (Claim No. 111564.).

Tressa Giles, As Co–Administratrix of the Estate of John H. Mattia and As Natural Parent and Guardian of the Infants, Tayla Rose Mattia and Cyara Faith Mattia and Elaine R. Mattia, As Co–Administratrix of the Estate of John H. Mattia, Deceased, Claimants,

v.The State of New York, Defendant. (Claim No. 111691.).

No. 111564.

Court of Claims of New York.

March 29, 2012.

William D. Parmerter and Leanne M. Parmerter, Smith, Miner, O'Shea & Smith, LlP, by Carrie L. Smith, Esq., for Claimants.

Tressa Giles and Elaine R. Mattia, Jasen & Jasen, P.C., Peter M. Jasen, P.C., by Peter M. Jasen, Esq., for Claimants.

Eric T. Schneiderman, New York State Attorney General, by Richard B. Friedfertig, Esq., Assistant Attorney General, for Defendant.

MICHAEL E. HUDSON, J.

Defendant has moved for summary judgment dismissing each of the above claims.¹ Claimants have cross-moved for summary judgment. On consideration, the motion and cross motion will be denied.

The following papers have been reviewed:

1. Claim (claim No. 111564), verified October 24, 2005, filed October 31, 2005;

2. Answer (claim No. 111564), verified December 1, 2005, filed December 2, 2005;

3. Amended Claim (claim No. 111564), verified April 13, 2006, filed April 20, 2006;

4. Amended Answer (claim No. 111564), verified April 25, 2006, filed April 26, 2006;

5. Claim (claim No. 111691), verified October 31, 2005, filed December 2, 2005;

6. Answer (claim No. 111691), verified December 28, 2005, filed December 29, 2005;

7. Amended Claim (claim No. 111691), verified June 30, 2006, filed July 3, 2006;

8. Answer to Amended Claim (claim No. 111691), verified August 1, 2006, filed August 3, 2006;

9. Notice of Motion to Dismiss, dated August 29, 2011, filed August 31, 2011;

10. Affidavit in Support of Richard B. Friedfertig, sworn to August 29, 2011, with attached exhibits A through Y;

11. Amended Notice of Motion, dated November 9, 2011, filed November 14, 2011;

12. Supplemental Affidavit of Richard B. Friedfertig, sworn to November 10, 2011, with attached exhibits A and B;

13. Attorney's Affidavit of Carrie L. Smith, sworn to November 18, 2011, filed November 21, 2011, with attached exhibits A through M, and Affidavit of Richard N. Reisch, sworn to November 15, 2011, with attached exhibits A through C;

14. Affidavit of Peter M. Jasen (motion No. M–80397, cross-motion No. CM–80654), sworn to November 17, 2011, filed November 23, 2011, with attached exhibit A; ²

15. Reply Affidavit of Richard B. Friedfertig, sworn to November 28, 2011, filed November 29, 2011;

16. Supplemental Affidavit of Peter M. Jasen, sworn to December 6, 2011, filed December 8, 2011, with attached exhibits 1 through 8;

17. Response to Supplemental Affidavit of Richard B. Friedfertig, sworn to December 21, 2011, filed December 22, 2011.

The above claims arise from the deaths of Shannon Parmerter and John H. Mattia on the early morning of May 1, 2004, after socializing together at several bars or clubs.³ It is alleged that the decedents died after they traveled northbound ⁴ on Fuhrmann Boulevard in the City of Buffalo in Mr. Mattia's vehicle, and failed to negotiate a 90–degree right turn as a section of that roadway ended at Commerce Street, just to the south of the Union Ship Canal. Instead, they reportedly drove through a guide rail along the north side of Commerce Street and entered the canal, where they drowned. The accident was unwitnessed, and was not discovered until the morning of May 2, 2004, when officers from the Buffalo Police Department Underwater Recovery Unit found their bodies within the Mattia vehicle in the canal, as they attempted to locate another vehicle that had entered that waterway from the opposite side of Fuhrmann Boulevard on the night of May 1–2, 2004. The Parmerter/Mattia deaths have resulted in related litigation in Supreme Court, Erie County, in each instance against the City of Buffalo, Niagara Frontier Transportation Authority, County of Erie and City of Lackawanna, with the Parmerter estate also seeking recovery against Niagara Mohawk Power Corporation and the Mattia estate.⁵

The claims against the State relate to the reconstruction of Fuhrmann Boulevard in the area of the Union Ship Canal between 1988 and 1992. Claimants contend that Defendant's Department of Transportation (DOT) was negligent in its design, construction, maintenance and/or inspection of Fuhrmann Boulevard on its approach to the canal, and its intersection with Commerce Street, such that there was a dangerous curve adjoining the canal that was not adequately shielded with guide rails or other barriers. Other allegations of negligence include inadequate sight distances, lighting, signage, speed regulation and traffic control devices, as well as the claimed failure of the DOT to review and reevaluate its traffic plan and roadway design in light of its actual operation and accident history, and to properly maintain its signage and barriers following the initial construction.

The State now moves for summary judgment dismissing the claims on the ground that it does not own or maintain the area of Fuhrmann Boulevard in question, and has not been responsible for that site since it accepted the reconstructed roadway in April of 1992. In addition, Defendant contends that its initial placement of signage, line striping and advisory speed determinations were proper, and that any subsequent needs for maintenance and reassessment would have been the sole responsibility of the City of Buffalo, as the alleged owner of Fuhrmann Boulevard in the area of the Union Ship Canal. The State also cites evidence of each decedent's intoxication as a basis for dismissal. Claimants, in turn, have disputed whether the City of Buffalo fully and properly accepted control over the accident site following the completion of construction, and whether the State would otherwise be relieved of responsibility in relation to the initial construction and subsequent maintenance. On those bases they urge denial of the State's motion, and, evidently, an affirmative grant of summary judgment in their favor. I lastly note that, at my request, the parties have addressed whether the provisions of Highway Law article 12–B, which undisputedly provided the authority for the DOT to undertake and pay for the reconstruction of Fuhrmann Boulevard as an arterial highway, would impact on the State's duties and potential liability following the completion of the project. For reasons that follow I must now deny summary judgment to any party.

Summary judgment is a drastic remedy, one which should not be granted where there is any doubt as to the existence of a triable issue of fact ( Rotuba Extruders v. Ceppos, 46 N.Y.2d 223, 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068 [1978];Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 [1957] ), with issue-finding rather than issue-determination the focus of the Court in reviewing the submissions ( Sillman, 3 N.Y.2d at 404, 165 N.Y.S.2d 498, 144 N.E.2d 387). All evidence must be viewed in a light most favorable to the nonmoving party ( Rotuba Extruders, 46 N.Y.2d at 231, 413 N.Y.S.2d 141, 385 N.E.2d 1068). To obtain such disfavored relief a movant must establish his cause of action or defense “sufficiently to warrant the court as a matter of law in directing judgment” in his favor (CPLR 3212[b] ), and must do so by tender of evidentiary proof in admissible form ( Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298 [1979] ). The failure to satisfy that initial burden requires the denial of motion, without considering the sufficiency of the opposing papers ( Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ). Conversely, once a movant has satisfied that burden the party opposing the motion would have the burden of showing facts sufficient to require a trial of any issue of fact, or demonstrate an acceptable excuse for the inability to tender such proof in admissible form (CPLR 3212[b]; Friends of Animals, 46 N.Y.2d at 1067–1068, 416 N.Y.S.2d 790, 390 N.E.2d 298;Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Lastly, in weighing Claimants' evidence in opposition to Defendant's motion I must consider that “there is a less stringent evidentiary standard applied in wrongful death cases, particularly where there is no eyewitness to the accident” ( Pontello v. County of Onondaga, 94 A.D.2d 427, 432, 464 N.Y.S.2d 891 [1983] ).

According to David R. Christopher, who presently serves as the Resident Engineer for the DOT's North Erie County Residency ⁶ ( see Affidavit in Support of Richard B. Friedfertig, sworn to August 29, 2011 [Friedfertig affidavit], exhibit R [Affidavit of David R. Christopher, sworn to August 28, 2011, with attachments] ),⁷ Fuhrmann Boulevard in the area in question was reconstructed between 1988 and 1992 under contract No. D500769 as a State-administered contract for a roadway owned by the City of Buffalo pursuant to Highway Law §§ 349–c and 349–e. As part of the project the State initially declared the site to be a restricted highway in and about 1988. According to Mr. Christopher that restricted status, and with it the State's control of the site, would have ended no later than April 3, 1992, when the State formally accepted the completed contract. Based upon his review of the record plans for the reconstruction project, and his duties as the resident engineer for the area in question, Mr. Christopher opined to a reasonable degree of engineering certainty that the section of Fuhrmann Boulevard within the City of Buffalo wherein the accident...