Recitation, as required by CPLR §2219 (a), of the papers considered in the review of this Motion Papers Numbered Notice of Motion and Affidavits Annexed 1 Order to Show Cause Answering Affidavits 2 Replying Affidavits Exhibits Supplemental Affidavit DECISION/ORDER Upon the foregoing papers, defendant’s motion for summary judgment, pursuant to CPLR 3212, is decided as follows: Plaintiff commenced an action to recover property damages sustained by a motor vehicle, plus loss of earnings. Plaintiff is a self-employed driver who owns and operates a 2013 Lincoln MKS motor vehicle. The plaintiff had picked up a passenger in New Jersey, and was returning to New York. The plaintiff was on the upper level of the George Washington Bridge. The bridge was owned and maintained by the defendant. According to the plaintiff, his vehicle was struck by a loose tire. Given that there was an issue with a loose tire incident on the westbound lanes, the conclusion accepted by both sides is that the loose tire went over the concrete median barrier, which separates the eastbound lanes. The defendant submits an affidavit from the Chief Traffic Engineer of the Port Authority, who is a licensed professional engineer in both New York and New Jersey. He states the concrete median barrier was installed in 1970. The height of the barrier varies from 32 to 34 inches, above the roadway. The engineer states that the barrier conforms with all accepted standards. Defendant also submits an affidavit from the Port Authority Claims Manager which states that there had been no other claims of incidents involving objects crossing over the concrete median barrier for the three years prior to the incident. The identity of the source of the flying tire has never been determined. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact, Ayotte v. Gervasio, 81 N.Y. 2d 1062 (1993). Given that the offending object came from an unknown source, that the median barrier conforms to accepted standards, and that for the past three years, there has been no similar incidents, the Court accepts that defendant has made a prima facie showing of entitlement of summary judgment. Plaintiff argues his theories of liability against the Port Authority are not just within the various confines of whether the median barrier is high enough, but essentially would have made Defendant, Port Authority liable because it failed to maintain accurate enough cameras to perfectly record the license plate of every vehicle at every location on the George Washington Bridge. Holding said institution to said standard would likely require an act of the Legislatures of two States, or governmental institutions so authorized, not the Queens Civil Court. This is not a case of res ipsa loquitur, and the Port Authority’s foreseeability of their harm to be done is akin to that of the Palsgraf v. Long Island Railroad, 248 NY 339 (1928). The tire in this case may have been in the air, but there is no negligence in the air, and the liability if any belongs with the owners of the offending vehicle, apart from UM and or MVAIC claims. At this point, if the party who opposes summary judgment is to succeed in defeating summary judgment, the opponent must make a showing by evidentiary proof, in admissible form, Friends of Animals, Inc. v. Associated Fur Manufactures, Inc., 46 N.Y. 2d 1065 (1979). Plaintiff’s opposition consists of an affidavit by the plaintiff which fails to set forth any cognizable theory or facts that disputes defendant’s arguments. To defeat a motion for summary judgment, the opposing party must assemble and lay bare its affirmative proof to demonstrate that genuine triable issues of fact exists, Kornfeld v. NRX Techs, Inc. 93 A.D. 2d 772 (1st Dept. 1983). Accordingly, Defendant’s motion for summary judgment, pursuant to CPLR 3212, is granted. The complaint is dismissed. This constitutes the decision and order of the Court. Dated: June 20, 2024
