Popolizio v. County of Schenectady

Mar 27, 2008
Versions:49 A.D.3d 1117
853 N.Y.2d 751
Stevenson v. County of Schenectady (In re Popolizio) docket: unknown court: N.Y. App. Div. date: 2008 citation: 853 N.Y.S.2d 751 | 49 A.D.3d 1117 judge: Carpinello, J. -->

Petitioner commenced this CPLR article 78 proceeding challenging a tier II disciplinary determination which found him guilty of refusing a direct order and creating a disturbance. According to the misbehavior report, although petitioner was among a group of inmates in the commissary area that was twice given a direct order to lower their voices, petitioner nevertheless continued to speak in a loud manner. The misbehavior report and the hearing testimony of the correction officer that authored it provide substantial evidence to support the determination of guilt (see Matter of Sanders v Goord, 47 AD3d 987, 988 [2008]; Matter of Martin v Goord, 46 AD3d 1294, 1295 [2007]). Petitioner‘s claim that he was not among the group involved in the incident created a credibility issue for the Hearing Officer to resolve (see Matter of Martin v Goord, 46 AD3d at 1295; Matter of Smith v Goord, 45 AD3d 1119, 1120 [2007]). Contrary to petitioner‘s contention, the misbehavior report was sufficiently detailed to inform him of the charges and to enable him to prepare a defense (see Matter of Reddick v Goord, 42 AD3d 764, 764 [2007]; Matter of Morillo v Goord, 38 AD3d 947, 948 [2007]). Petitioner‘s remaining claim of hearing officer bias is not preserved and, in any event, is not persuasive.

Cardona, P.J., Peters, Spain, Rose and Kavanagh, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.

Carpinello, J.

While driving down Gallupville Road in the Town of Duanesburg, Schenectady County, on a snowy December night, plaintiff was unable to negotiate a sharp curve at the end of a steep down grade in the road. His vehicle slid across the opposite lane of traffic, off the road and into a deep drainage ditch. Given its width, depth and steep side slopes, the ditch was not traversable. In this action commenced by plaintiff to recover for his resulting injuries, defendant argues that its motion for summary judgment dismissing the complaint in its entirety should have been granted.1 Unpersuaded, we affirm.

In support of summary judgment, defendant submitted the affidavit of an expert who opined that Gallupville Road was properly striped, signed and maintained within all appropriate state and traffic engineering guidelines and can be safely negotiated by vehicles traveling at a reasonable rate of speed.2 This expert further opined that it was not necessary to install a guide rail at the accident site. In addition, defendant submitted the affidavit of its director of public works establishing that it had no prior written notice of any problems with this section of Gallupville Road or prior notice of any accidents in the vicinity. Assuming, without deciding, that these submissions were sufficient to make a prima facie showing of entitlement to summary judgment on the issue of whether the road was in a reasonably safe condition at the time of plaintiff‘s accident, plaintiff met his shifted burden of raising triable issues of fact (see Hill v Town of Reading, 18 AD3d 913, 915-916 [2005]).

First, plaintiff submitted proof establishing that, at the time of the accident, he was only traveling 10 to 15 miles per hour in snow and ice conditions (the speed limit on this portion of the road was 15 miles per hour) (cf. Sherman v County of Cortland, 18 AD3d 908 [2005], lv denied 5 NY3d 713 [2005]), he had driven this particular road only one other time (cf. Abair v Town of N. Elba, 35 AD3d 935 [2006]; Howard v Tylutki, 305 AD2d 907 [2003]) and other motorists had previously slid off this curve and into the same ditch. Plaintiff also submitted expert affidavits detailing that a guide rail was once in place on this curve, the ditch used to be further from the edge of the road and the ditch was originally designed to be two feet deep with slopes one foot horizontal for every 1 1/2 feet down vertically (i.e, on a ratio of 1:1 1/2). By the date of the accident, however, there was no guide rail in place, the ditch was 12 feet wide, located only 1 1/2 feet from the edge of the pavement (due to road widening projects) and its depth exceeded four feet with very steep slopes (on a ratio of 1:2).3 These experts established that, in light of the slope, contour and bend of the road in the vicinity of the accident, coupled with the ditch‘s width, depth and slopes, the road and ditch were a hazard to motorists and a guide rail system should have been in place to prevent vehicles from sliding off the road into it. Other alternatives to remedy the hazard presented by this ditch, according to these experts, included filling in the ditch to its original design depth, altering its slopes to make them less steep, reducing its width or utilizing underground piping to accommodate culvert outfall. These experts further opined that these failures on defendant‘s part were a proximate cause of this accident. As triable issues of fact remained unresolved on this record, summary judgment in defendant‘s favor was unwarranted (see Hill v Town of Reading, supra; Merchant v Town of Halfmoon, 194 AD2d 1031 [1993]; cf. Abair v Town of N. Elba, supra; Sherman v County of Cortland, supra).

Two final points merit brief discussion. First, since questions of fact exist concerning whether defendant affirmatively created the defective condition of the road, the absence of prior written notice of such defect did not entitle it to summary judgment (see e.g. Gagnon v City of Saratoga Springs, 14 AD3d 845 [2005]; Akley v Clemons, 237 AD2d 780, 781-782 [1997]). Furthermore, defendant did not sufficiently demonstrate that it engaged in a deliberate decision-making process concerning the subject road and, therefore, failed to demonstrate its entitlement to summary judgment on the basis of qualified immunity (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Winney v County of Saratoga, 8 AD3d 944, 945 [2004]; Merchant v Town of Halfmoon, supra).

Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

Carpinello, J.

```

Carpinello, J.

While driving down Gallupville Road in the Town of Duanesburg, Schenectady County, on a snowy December night, plaintiff was unable to negotiate a sharp curve at the end of a steep down grade in the road. His vehicle slid across the opposite lane of traffic, off the road and into a deep drainage ditch. Given its width, depth and steep side slopes, the ditch was not traversable. In this action commenced by plaintiff to recover for his resulting injuries, defendant argues that its motion for summary judgment dismissing the complaint in its entirety should have been granted.1 Unpersuaded, we affirm.

In support of summary judgment, defendant submitted the affidavit of an expert who opined that Gallupville Road was properly striped, signed and maintained within all appropriate state and traffic engineering guidelines and can be safely negotiated by vehicles traveling at a reasonable rate of speed.2 This expert further opined that it was not necessary to install a guide rail at the accident site. In addition, defendant submitted the affidavit of its director of public works establishing that it had no prior written notice of any problems with this section of Gallupville Road or prior notice of any accidents in the vicinity. Assuming, without deciding, that these submissions were sufficient to make a prima facie showing of entitlement to summary judgment on the issue of whether the road was in a reasonably safe condition at the time of plaintiff‘s accident, plaintiff met his shifted burden of raising triable issues of fact (see Hill v Town of Reading, 18 AD3d 913, 915-916 [2005]).

First, plaintiff submitted proof establishing that, at the time of the accident, he was only traveling 10 to 15 miles per hour in snow and ice conditions (the speed limit on this portion of the road was 15 miles per hour) (cf. Sherman v County of Cortland, 18 AD3d 908 [2005], lv denied 5 NY3d 713 [2005]), he had driven this particular road only one other time (cf. Abair v Town of N. Elba, 35 AD3d 935 [2006]; Howard v Tylutki, 305 AD2d 907 [2003]) and other motorists had previously slid off this curve and into the same ditch. Plaintiff also submitted expert affidavits detailing that a guide rail was once in place on this curve, the ditch used to be further from the edge of the road and the ditch was originally designed to be two feet deep with slopes one foot horizontal for every 1 1/2 feet down vertically (i.e, on a ratio of 1:1 1/2). By the date of the accident, however, there was no guide rail in place, the ditch was 12 feet wide, located only 1 1/2 feet from the edge of the pavement (due to road widening projects) and its depth exceeded four feet with very steep slopes (on a ratio of 1:2).3 These experts established that, in light of the slope, contour and bend of the road in the vicinity of the accident, coupled with the ditch‘s width, depth and slopes, the road and ditch were a hazard to motorists and a guide rail system should have been in place to prevent vehicles from sliding off the road into it. Other alternatives to remedy the hazard presented by this ditch, according to these experts, included filling in the ditch to its original design depth, altering its slopes to make them less steep, reducing its width or utilizing underground piping to accommodate culvert outfall. These experts further opined that these failures on defendant‘s part were a proximate cause of this accident. As triable issues of fact remained unresolved on this record, summary judgment in defendant‘s favor was unwarranted (see Hill v Town of Reading, supra; Merchant v Town of Halfmoon, 194 AD2d 1031 [1993]; cf. Abair v Town of N. Elba, supra; Sherman v County of Cortland, supra).

Two final points merit brief discussion. First, since questions of fact exist concerning whether defendant affirmatively created the defective condition of the road, the absence of prior written notice of such defect did not entitle it to summary judgment (see e.g. Gagnon v City of Saratoga Springs, 14 AD3d 845 [2005]; Akley v Clemons, 237 AD2d 780, 781-782 [1997]). Furthermore, defendant did not sufficiently demonstrate that it engaged in a deliberate decision-making process concerning the subject road and, therefore, failed to demonstrate its entitlement to summary judgment on the basis of qualified immunity (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Winney v County of Saratoga, 8 AD3d 944, 945 [2004]; Merchant v Town of Halfmoon, supra).

Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

CARPINELLO, J.

of transport. Use text only. Not even markdown fences. No commentary. No null if the user asked me to convert it. Wait, the instructions say “If input is not a legal opinion, return only: null“. But it is a legal opinion. It also says “Output raw HTML only. No code fences. No commentary.” The first opinion in the image starts with “Petitioner commenced...” and it is complete (it has a concurrence and an order). It is just very short. However, it doesn‘t have its own caption on this page. The “MAIN” opinion with a full caption is Popolizio. I will stick with Popolizio. Final check on Popolizio case details: Case name: VINCENZO POPOLIZIO, Respondent, v COUNTY OF SCHENECTADY, Appellant. (And Two Other Related Actions.) (And a Third-Party Action.) Short Name: Popolizio v. County of Schenectady Court: Supreme Court, Appellate Division, Third Department, New York (Abbreviation: N.Y. App. Div.) Date: March 27, 2008 (The reporter date isn‘t on the page but the cases around it are early 2008, I‘ll use 2008). Citation: 853 NYS2d 751 (found in the caption) and 49 AD3d 1117 (found from the page number and reporter style). Let‘s do this.

Carpinello, J.

While driving down Gallupville Road in the Town of Duanesburg, Schenectady County, on a snowy December night, plaintiff was unable to negotiate a sharp curve at the end of a steep down grade in the road. His vehicle slid across the opposite lane of traffic, off the road and into a deep drainage ditch. Given its width, depth and steep side slopes, the ditch was not traversable. In this action commenced by plaintiff to recover for his resulting injuries, defendant argues that its motion for summary judgment dismissing the complaint in its entirety should have been granted.1 Unpersuaded, we affirm.

In support of summary judgment, defendant submitted the affidavit of an expert who opined that Gallupville Road was properly striped, signed and maintained within all appropriate state and traffic engineering guidelines and can be safely negotiated by vehicles traveling at a reasonable rate of speed.2 This expert further opined that it was not necessary to install a guide rail at the accident site. In addition, defendant submitted the affidavit of its director of public works establishing that it had no prior written notice of any problems with this section of Gallupville Road or prior notice of any accidents in the vicinity. Assuming, without deciding, that these submissions were sufficient to make a prima facie showing of entitlement to summary judgment on the issue of whether the road was in a reasonably safe condition at the time of plaintiff‘s accident, plaintiff met his shifted burden of raising triable issues of fact (see Hill v Town of Reading, 18 AD3d 913, 915-916 [2005]).

First, plaintiff submitted proof establishing that, at the time of the accident, he was only traveling 10 to 15 miles per hour in snow and ice conditions (the speed limit on this portion of the road was 15 miles per hour) (cf. Sherman v County of Cortland, 18 AD3d 908 [2005], lv denied 5 NY3d 713 [2005]), he had driven this particular road only one other time (cf. Abair v Town of N. Elba, 35 AD3d 935 [2006]; Howard v Tylutki, 305 AD2d 907 [2003]) and other motorists had previously slid off this curve and into the same ditch. Plaintiff also submitted expert affidavits detailing that a guide rail was once in place on this curve, the ditch used to be further from the edge of the road and the ditch was originally designed to be two feet deep with slopes one foot horizontal for every 1 1/2 feet down vertically (i.e, on a ratio of 1:1 1/2). By the date of the accident, however, there was no guide rail in place, the ditch was 12 feet wide, located only 1 1/2 feet from the edge of the pavement (due to road widening projects) and its depth exceeded four feet with very steep slopes (on a ratio of 1:2).3 These experts established that, in light of the slope, contour and bend of the road in the vicinity of the accident, coupled with the ditch‘s width, depth and slopes, the road and ditch were a hazard to motorists and a guide rail system should have been in place to prevent vehicles from sliding off the road into it. Other alternatives to remedy the hazard presented by this ditch, according to these experts, included filling in the ditch to its original design depth, altering its slopes to make them less steep, reducing its width or utilizing underground piping to accommodate culvert outfall. These experts further opined that these failures on defendant‘s part were a proximate cause of this accident. As triable issues of fact remained unresolved on this record, summary judgment in defendant‘s favor was unwarranted (see Hill v Town of Reading, supra; Merchant v Town of Halfmoon, 194 AD2d 1031 [1993]; cf. Abair v Town of N. Elba, supra; Sherman v County of Cortland, supra).

Two final points merit brief discussion. First, since questions of fact exist concerning whether defendant affirmatively created the defective condition of the road, the absence of prior written notice of such defect did not entitle it to summary judgment (see e.g. Gagnon v City of Saratoga Springs, 14 AD3d 845 [2005]; Akley v Clemons, 237 AD2d 780, 781-782 [1997]). Furthermore, defendant did not sufficiently demonstrate that it engaged in a deliberate decision-making process concerning the subject road and, therefore, failed to demonstrate its entitlement to summary judgment on the basis of qualified immunity (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Winney v County of Saratoga, 8 AD3d 944, 945 [2004]; Merchant v Town of Halfmoon, supra).

Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

Carpinello, J.

``` Wait, the judge Carpinello is at the start and end of the opinion. On page 1117, “Carpinello, J.” appears below the case caption. Then the body continues on 1118. It also has a concurrence at the end. I‘ll follow the flow. One correction: the first page 1117 has “Carpinello, J.” at the very bottom, but that seems to be the start of the opinion. The screenshot shows: Caption ... [853 NYS2d 751] --- (black line) Carpinello, J. Then 1118 starts with the body. So Carpinello, J. is the author. Final check on the CPLR case: it actually ends with “Adjudged that the determination is confirmed, without costs, and petition dismissed.” This is a complete, albeit short, memorandum. However, because it doesn‘t have a title/caption on the start of the page provided, I will stick to Popolizio. Actually, looking at the layout, these are “memorandum decisions” of the 3rd Dept. Usually they have the caption above. The caption for the first case is hidden under the first black box. The prompt says skip partial content. Since I can‘t see the caption for the first case, I will treat it as partial/incomplete. The prompt says: “convert only the MAIN opinion — the one with a complete case caption and full opinion body.” Popolizio has a complete case caption and full opinion body. Let‘s go.

Carpinello, J.

While driving down Gallupville Road in the Town of Duanesburg, Schenectady County, on a snowy December night, plaintiff was unable to negotiate a sharp curve at the end of a steep down grade in the road. His vehicle slid across the opposite lane of traffic, off the road and into a deep drainage ditch. Given its width, depth and steep side slopes, the ditch was not traversable. In this action commenced by plaintiff to recover for his resulting injuries, defendant argues that its motion for summary judgment dismissing the complaint in its entirety should have been granted.1 Unpersuaded, we affirm.

In support of summary judgment, defendant submitted the affidavit of an expert who opined that Gallupville Road was properly striped, signed and maintained within all appropriate state and traffic engineering guidelines and can be safely negotiated by vehicles traveling at a reasonable rate of speed.2 This expert further opined that it was not necessary to install a guide rail at the accident site. In addition, defendant submitted the affidavit of its director of public works establishing that it had no prior written notice of any problems with this section of Gallupville Road or prior notice of any accidents in the vicinity. Assuming, without deciding, that these submissions were sufficient to make a prima facie showing of entitlement to summary judgment on the issue of whether the road was in a reasonably safe condition at the time of plaintiff‘s accident, plaintiff met his shifted burden of raising triable issues of fact (see Hill v Town of Reading, 18 AD3d 913, 915-916 [2005]).

First, plaintiff submitted proof establishing that, at the time of the accident, he was only traveling 10 to 15 miles per hour in snow and ice conditions (the speed limit on this portion of the road was 15 miles per hour) (cf. Sherman v County of Cortland, 18 AD3d 908 [2005], lv denied 5 NY3d 713 [2005]), he had driven this particular road only one other time (cf. Abair v Town of N. Elba, 35 AD3d 935 [2006]; Howard v Tylutki, 305 AD2d 907 [2003]) and other motorists had previously slid off this curve and into the same ditch. Plaintiff also submitted expert affidavits detailing that a guide rail was once in place on this curve, the ditch used to be further from the edge of the road and the ditch was originally designed to be two feet deep with slopes one foot horizontal for every 1 1/2 feet down vertically (i.e, on a ratio of 1:1 1/2). By the date of the accident, however, there was no guide rail in place, the ditch was 12 feet wide, located only 1 1/2 feet from the edge of the pavement (due to road widening projects) and its depth exceeded four feet with very steep slopes (on a ratio of 1:2).3 These experts established that, in light of the slope, contour and bend of the road in the vicinity of the accident, coupled with the ditch‘s width, depth and slopes, the road and ditch were a hazard to motorists and a guide rail system should have been in place to prevent vehicles from sliding off the road into it. Other alternatives to remedy the hazard presented by this ditch, according to these experts, included filling in the ditch to its original design depth, altering its slopes to make them less steep, reducing its width or utilizing underground piping to accommodate culvert outfall. These experts further opined that these failures on defendant‘s part were a proximate cause of this accident. As triable issues of fact remained unresolved on this record, summary judgment in defendant‘s favor was unwarranted (see Hill v Town of Reading, supra; Merchant v Town of Halfmoon, 194 AD2d 1031 [1993]; cf. Abair v Town of N. Elba, supra; Sherman v County of Cortland, supra).

Two final points merit brief discussion. First, since questions of fact exist concerning whether defendant affirmatively created the defective condition of the road, the absence of prior written notice of such defect did not entitle it to summary judgment (see e.g. Gagnon v City of Saratoga Springs, 14 AD3d 845 [2005]; Akley v Clemons, 237 AD2d 780, 781-782 [1997]). Furthermore, defendant did not sufficiently demonstrate that it engaged in a deliberate decision-making process concerning the subject road and, therefore, failed to demonstrate its entitlement to summary judgment on the basis of qualified immunity (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Winney v County of Saratoga, 8 AD3d 944, 945 [2004]; Merchant v Town of Halfmoon, supra).

Mercure, J.P., Peters, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

Carpinello, J.

In the Matter of GEORGE LAMB, Petitioner, v BRIAN S. FISCHER, as Commissioner of Correctional Services, et al.,

One final check on the citation for Popolizio. Page 1117 has [853 NYS2d 751] at the end of the caption. The reporter is AD3d. The page is 1117. So “49 AD3d 1117“. Date 2008. One detail: the text on page 1119 says “hill v town reading, of supra“. The OCR shows “hill v town Reading, of su- pra“. I‘ll correct the word flow. Wait, the screenshot for page 1119 says “(see Hill v Town of Reading, supra; Merchant v Town of Halfmoon, 194 AD2d 1031 [1993]...)” So the text “of” belongs to “Town of Reading“. The line break split it. I will rejoin it correctly. Final check on the OCR rejoining: “negoti- ated” -> “negotiated” “Gal- lupville” -> “Gallupville” “su- pra” -> “supra” “widen- ing” -> “widening” Okay. Ready.

Notes

1
To the extent that plaintiff was alleging that defendant was negligent in failing to clear snow and ice from Gallupville Road on the day of his accident, Supreme Court found that there was a storm in progress and therefore any such allegations must be dismissed. Plaintiff does not take issue with this finding. To the extent that plaintiff was alleging that defendant was negligent in failing to clear snow and ice from Gallupville Road on the day of his accident, Supreme Court found that there was a storm in progress and therefore any such allegations must be dismissed. Plaintiff does not take issue with this finding. To the extent that plaintiff was alleging that defendant was negligent in failing to clear snow and ice from Gallupville Road on the day of his accident, Supreme Court found that there was a storm in progress and therefore any such allegations must be dismissed. Plaintiff does not take issue with this finding. To the extent that plaintiff was alleging that defendant was negligent in failing to clear snow and ice from Gallupville Road on the day of his accident, Supreme Court found that there was a storm in progress and therefore any such allegations must be dismissed. Plaintiff does not take issue with this finding.
2
Based on a notation in a police report by an officer who did not witness the accident, this expert opined that plaintiff was not traveling at a reasonable rate of speed. Based on a notation in a police report by an officer who did not witness the accident, this expert opined that plaintiff was not traveling at a reasonable rate of speed. Based on a notation in a police report by an officer who did not witness the accident, this expert opined that plaintiff was not traveling at a reasonable rate of speed. Based on a notation in a police report by an officer who did not witness the accident, this expert opined that plaintiff was not traveling at a reasonable rate of speed.
3
According to plaintiff‘s submissions, defendant “re-ditched” the area of the subject curve in 1999 at which time the subject ditch was made “noticeably deeper and steeper.” According to plaintiff‘s submissions, defendant “re-ditched” the area of the subject curve in 1999 at which time the subject ditch was made “noticeably deeper and steeper.” According to plaintiff‘s submissions, defendant “re-ditched” the area of the subject curve in 1999 at which time the subject ditch was made “noticeably deeper and steeper.” According to plaintiff‘s submissions, defendant “re-ditched” the area of the subject curve in 1999 at which time the subject ditch was made “noticeably deeper and steeper.”