Stoeckert v State of New York

[*1] Stoeckert v State of New York 2013 NY Slip Op 51235(U) Decided on June 25, 2013 Ct Of Cl Marin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 25, 2013
Ct of Cl

Steven Stoeckert, Claimant,

against

The State of New York, Defendant.



118229



For Claimant:

Felberbaum, Halbridge & Wirth

By: Samuel E. Felberbaum, Esq. and Robert C. Wirth, Esq.

For Defendant:

Eric T. Schneiderman, Attorney General

By: John M. Hunter, AAG

Alan C. Marin, J.

This claim arises from a September 2, 2009 automobile accident involving claimant Steven Stoeckert's vehicle and a vehicle owned by the State and operated by one of its employees. Mr. Stoeckert now moves for summary judgment on the issue of liability.

The accident occurred on Bronx Boulevard in the Bronx. Claimant maintains that the accident was caused by the negligence of the State driver, Ada Hudson, who, according to claimant, made a U-turn in front of his vehicle from the right. Ms. Hudson admitted at her deposition that she made a U-turn. Specifically, the following exchange occurred at the deposition:

Q.Were you making a left turn to get on to Burke?

A.Yes.

Q.So was it a U-turn or a left turn?

A.It was a U-turn because I was coming out. I wanted to go back to where I came from.

See p. 34 of exhibit G to claimant's moving papers.

Defendant argues that claimant was comparatively negligent, having testified at his deposition that he was traveling at "[a]bout 35 miles per hour," where the speed limit was 30 miles per hour. See p. 85 of exhibit F to claimant's moving papers. Defendant also argues that claimant failed to sound his horn or apply his brakes prior to the collision, although claimant stated that he did not have time.

There is precedent in similar cases (even in ones involving pedestrians) that comparative [*2]negligence will obtain (Thoma v Ronai, 82 NY2d 736, 737 [1993]; Maniscalco v New York City Transit Authority, 95 AD3d 510 [1st Dept 2012]; Stephens v Elrac, Inc.,100 AD3d 511 [1st Dept 2012]; but see Tselebis v Ryder Truck Rental, Inc., 72 AD3d 198 [1st Dept 2010]).

Whether a U-turn or a left turn,[FN1] the issues that defendant raises (excessive speed, failure to sound the horn or to brake) turn on whether Stoeckert had time to see what should have been seen and sufficient time to react appropriately (PJI 2:77 and 2:77.1). With that said, it is probably quite unlikely that the 35 to 50 foot distance from defendant's car,[FN2] even were claimant traveling at the speed limit of 30 miles per hour, would have afforded claimant time to stop, so as to potentially implicate comparative negligence. However, claimant did not address this issue, and therefore the Court is constrained to deny his motion for summary judgment.

In view of the foregoing, having reviewed the submissions, IT IS ORDERED that motion no. M-82731 be denied.[FN3] New York, New York June 25, 2013 ALAN C. MARIN Judge of the Court of Claims Footnotes

Footnote 1:See Sabater v State of New York and J. Hernano Cardenas, UID No. 2013-016-003 (Ct Cl, Marin, J., Jan. 23, 2013).

Footnote 2:See p. 84 of exhibit F to claimant's moving papers.

Footnote 3:The following were reviewed: claimant's notice of motion with affirmation and affidavit in support, memorandum of law and exhibits A through G; defendant's affirmation in opposition with exhibit A; and claimant's reply affirmation.