Alfin v. State

213 N.Y.S.3d 842

83 Misc.3d 366

Kathleen ALFIN and Denis L. Alfin, Claimants,

v.The STATE of New York,¹ Defendant.

Court of Claims of New York.

Decided on December 31, 2023

For Claimants: FELLOWS HYMOWITZ RICE, PC, By: Matthew F. Rice, Esq.

For Defendant: LETITIA JAMES, New York State Attorney General, By: Terrance K. DeRosa, Assistant Attorney General

Zainab A. Chaudhry, J.

In this personal injury action, claimants Kathleen and Denis Alfin allege that a New York State Trooper’s negligent execution of a traffic stop on a vehicle operated by a nonparty driver caused them to collide with the stopped vehicle as they were traveling in their car on the same highway. The resulting accident caused Kathleen to sustain significant physical injuries; Denis’ claims are predominantly derivative in nature.

Defendant has moved for summary judgment dismissing the claim. Defendant first argues that the trooper was operating an emergency vehicle engaged in an emergency operation and, thus, under Vehicle and Traffic Law (VTL) § 1104 (e), defendant cannot be held liable for the trooper’s conduct unless he acted recklessly. To that end, defendant contends that the claim must be dismissed because the trooper’s actions were not reckless as a matter of law. Next, defendant argues that even if the trooper acted recklessly, the claim must be dismissed because defendant is protected by governmental function immunity and claimants cannot establish that defendant owed them a special duty.² Claimants oppose the motion, asserting there are triable issues of fact as to the questions whether the trooper was engaged in an emergency operation and acted recklessly, as well as whether the trooper’s actions were covered by governmental function immunity or defendant owed claimants a special duty. For the reasons stated below, the motion is denied.

The claim alleges that on October 30, 2019, at approximately 7:15 p.m., claimants were traveling eastbound on Interstate 84, a two-lane highway, near the town of Southeast, New York. Denis was driving, and Kathleen occupied the passenger seat. According to the claim, as Denis was traveling in the right lane, he saw a state police cruiser with its flashing lights activated pulled over on the right shoulder of the highway (see Claim, ¶ 3). Believing that the trooper must have had another vehicle pulled over in front of the police cruiser, Denis moved claimants’ vehicle from the right lane into the left lane in accordance with the State’s Move Over Law (see id.; VTL § 1144-a [a]). In his deposition, Denis further explained that the road conditions were wet, and that he also reduced his speed while moving to the left (see Affirm in Supp of Mot, Exh G, at 18-19). Denis also testified that he saw a tractor trailer moving from the left into the right lane at that same time (see id. at 19). After moving over into the left lane, Denis testified that he then almost immediately saw two things at the same time: the trooper standing outside of the police vehicle flickering a handheld flashlight back and forth, and another car stopped just ahead of him (see id.). Denis stated that he attempted to brake but could not stop claimants’ vehicle before it collided into the back of the car stopped in front of him (see id.).

Conflicting accounts of the events leading up to the accident were given by Trooper John DiRusso, the officer who was operating the state police vehicle, and nonparty Terryann Smith, the driver of the other car involved in the accident.

According to the deposition testimony of DiRusso, submitted by defendant in support of the motion, the road conditions were dry and it was not raining at the time of the accident (see Affirm in Supp of Mot, Exh D, at 20). DiRusso testified that he was patrolling I-84 for general highway safety and observed Smith’s vehicle in the left lane of the highway "obstructing the flow of traffic," causing other vehicles to make "evasive maneuvers" to get ahead of her car (id. at 15-16). He further observed that Smith was "unable to maintain [her] lane" and believed that she may have been impaired (id. at 16). DiRusso explained that he got behind Smith’s car and eventually activated his emergency lights to effectuate a traffic stop (see id.). DiRusso stated that, although he "attempted to slow both lanes of travel so that [Smith] … would safely pull off to the right side of the roadway," Smith nevertheless came to a complete stop in the left lane of travel (id.). DiRusso further stated that there was no shoulder on the left side of the highway and that Smith was not pulled over onto the grass (id. at 19). Having stopped approximately 15 feet behind her, DiRusso testified that he first gave Smith multiple directives using his public address system, commanding her to move to the right shoulder immediately (see id. at 16-17, 19-20). After Smith failed to move, DiRusso stated that he exited his vehicle and approached Smith’s driver-side window and told her to move immediately to the right shoulder once he signaled with his siren (see id. at 17-18). DiRusso explained that he returned to his vehicle and, as he was monitoring the flow of traffic, sounded the siren multiple times before Smith eventually began to move into the right lane (see id. at 17). According to DiRusso, he followed behind her and both cars were fully in the right lane when, suddenly, Smith jerked her vehicle back into the left lane and stopped and put her vehicle in park, as DiRusso moved his vehicle into the right shoulder (see id. at 17, 20-23). DiRusso testified that, at that point, he was not "able to maneuver [his] troop car safely to get behind [Smith]" (id. at 25; see also id. at 27, 29-30), and so he exited his vehicle and began flashing his handheld flashlight at her from the right side of the roadway and shouting verbal commands for her to move into the shoulder (see id. at 25, 33). DiRusso stated that he was also able to stop a tractor trailer that was traveling in the right lane by using his flashlight to get the driver’s attention (see id. at 33-34).

Smith told a different story. Smith was deposed twice in connection with this incident—once in the instant claim, and once in a related Supreme Court action brought by the Alfins against Smith,³ and both transcripts were submitted by defendant in support of the motion. Smith testified at her earlier Supreme Court deposition that she was not "going fast" but traveling at least 50 miles per hour in the left lane before DiRusso stopped her (Affirm in Supp of Mot, Exh F, at 33). According to Smith, it was raining heavily at the time of the accident (see id. at 26). When DiRusso first activated his lights, Smith testified that she pulled over and parked in "a little shoulder" on the left—not the left lane as DiRusso testified—and DiRusso stopped behind her (id. at 23; see also id. at 29, 35-36, 51, 53). She testified that her car was at least partially on a grassy area (see id. at 24), which she believed was a safe location to stop, and that it would not have been safe to pull over to the right due to cars traveling in the right lane (see id. at 28, 37-38, 50). According to Smith, DiRusso approached her vehicle on the driver’s side, was "screaming and carrying on," and instructed her to follow his vehicle to the right shoulder (id. at 29; see id. at 38). She stated that DiRusso then returned to his vehicle and "went all the way over to the right" ahead of her while she "stayed over on the left" (id. at 29; see id. at 38). Smith explained that she "couldn’t move over" into the right lane (id. at 32) because she saw the tractor trailer coming and believed it would have been unsafe (see id. at 32, 62, 82). She elaborated that she "tried a little bit" to move to the right, but then after seeing the tractor trailer, she "went back over" to the left (id. at 44; see also id. at 61, 82-84).

Notably, there are discrepancies in the testimony Smith gave during her Supreme Court deposition as well as her Court of Claims deposition with respect to any attempt to move to the right and the position of her vehicle when the accident occurred. For example, in her Supreme Court deposition, Smith testified that she had put the car in drive and had started to move away from the left shoulder toward the right, but after entering the left lane she "had to go back over" to the left shoulder upon seeing the tractor trailer (id. at 82-84). At that point, she stated her vehicle was hit from behind after returning to the left shoulder (see id. at 85), but earlier in her testimony Smith had stated that she was in the left lane at the moment of impact (see id. at 29). Further, in her subsequent deposition in this action, Smith testified that she stayed parked in the left shoulder the entire time and never moved her car at all (see Affirm in Supp of Mot, Exh E, at 24-26, 28-29, 35), further contradicting DiRusso’s testimony.

Smith ultimately received a traffic ticket issued by Trooper DiRusso, charging her with a violation of VTL § 1181 (a) for operating her vehicle too slowly (see Affirm in Supp of Mot, Exh D, at 45; id., Exh F, at 41).⁴

Summary judgment is a "drastic remedy" and may be granted only when no triable issues of fact exist (Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974]; see CPLR 3212). A movant bears the initial burden of establishing the right to judgment as a matter of law by tendering sufficient evidence, in admissible form, demonstrating the absence of material issues of fact from the case (see Matter of Eighth Jud. Dist. Asbestos Litig., 33 N.Y.3d 488, 496, 105 N.Y.S.3d 353,129 N.E.3d 891 [2019], citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; see also Trustees of Columbia Univ. in the City of NY v. D’Agostino Supermarkets, Inc., 36 N.Y.3d 69, 73-74, 138 N.Y.S.3d 498, 162 N.E.3d 727 [2020]). In this regard, conclusory assertions are insufficient to demonstrate the absence of any material issues of...