New York State Court of Claims

New York State Court of Claims

BALL v. THE STATE OF NEW YORK, #2000-004-534, Claim No. 96658, Motion No. M-61806


Synopsis



Case Information

UID:
2000-004-534
Claimant(s):
LEONARD W. BALL
Claimant short name:
BALL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96658
Motion number(s):
M-61806
Cross-motion number(s):

Judge:
JEROME F. HANIFIN
Claimant's attorney:
EUGENE C. TENNEY, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
ATTORNEY GENERAL
BY: James E. ShoemakerAssistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 14, 2000
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The State moves for an Order granting summary judgment pursuant to CPLR § 3212.



Papers considered by the Court:


Claim, filed July 24, 1997 1

Verified Answer, filed August 25, 1997 2

ORDER, Hanifin, J., issued November 22, 1999 3

Miscellaneous correspondence and conference sheets 4

Notice of Motion, filed June 6, 2000 5


Affidavit of James E. Shoemaker, AAG, in support of motion,
sworn to May 31, 2000, with attached exhibits 6

Affidavit of Kent H. Iggulden, sworn to May 23, 2000 7


Affidavit of Gary A. Funk, in support of motion,
sworn to June 6, 2000 8

Memorandum of Law in support of motion, dated May 31, 2000 9


Affidavit of Eugene C. Tenney, Esq., in opposition to motion,

sworn to June 19, 2000, filed June 21, 2000, with attached
exhibits 10


Affidavit of John A. Serth, Jr., in opposition to motion,
sworn to June 17, 2000, with attached exhibits 11


Memorandum of Law, in opposition to motion,
dated June 19, 2000 12


The Claim alleges in pertinent part:

3. This claim is made pursuant to the Court of Claims Act to recover damages for the personal injuries sustained by said Claimant, LEONARD W. BALL, as a result of the negligence and carelessness of the STATE OF NEW YORK, its officers, agents, employees and persons under its control.

4. The date of the happening of the accident in which the injuries were sustained and the date when the claim arose is May 2, 1997, at approximately 2:00 p.m.

5. The place of the happening of the accident resulting in the injuries and damages to the Claimant was on Route 17, one-quarter mile west of Exit 38 in the Town of Bath, County of Steuben, State of New York. Attached hereto is the MV 104A, New York State Police Accident Report (Exhibit "A").

6. At the aforesaid time and place, Claimant, Leonard W. Ball, was driving an automobile in a westerly direction on New York State Route 17 at or near Bath, New York. Upon information and belief, a vehicle driven by Kathryn A. Arnold, travelling [sic] in the wrong lane of travel struck Claimant's vehicle head on causing the Claimant to sustain critical and permanent injuries.

7. Upon information and belief said Kathryn A. Arnold had left a rest stop provided by the State of New York adjacent to the westbound lanes of traffic of Route 17. Arnold travelled [sic] easterly in the westbound lanes of travel and the accident occurred between Claimant and Arnold. The entrance/exit area for such rest stop was not adequately identified by the State of New York.

8. Upon information and belief, the aforementioned accident was caused by and a claim is made for the negligence, carelessness and recklessness on the part of the STATE OF NEW YORK...in failing to make it safe for the vehicular traffic on westbound Route No. 17; creating a hazardous condition; not properly and adequately marking the roadway to and from the aforesaid rest area; not posting warnings, directions, information, signage and guidance to motorists travelling [sic] thereon, failing to erect and post proper signage on Route No. 17 westbound to warn the travelling [sic] public they were proceeding in the wrong direction after exiting from such rest area and travelling [sic] eastward on such Route No. 17.

(Paper No. 1 [emphasis in original])



In support of the motion, State's counsel avers in pertinent part:

6. On May 2, 1997 at approximately 1:56 p.m. an accident occurred on State Route 17 westbound in the Town of Bath in Steuben County approximately 1/4 of a mile west of Exit 38. The accident occurred when Kathryn A. Arnold of Avoca, New York exited the Kanona rest area at a location approximately 1 8/10 miles west of the accident scene and traveled east bound in the west bound lanes of traffic on State Route 17 to a point where she collided with the Ball vehicle. (See Affidavit of Kent H. Iggulden).

***

8. The Kanona rest area located in Steuben County on State Route 17 west bound (as of the date of the accident) had three ONE WAY signs adjacent to the area where cars and/or trucks park, and, had two DO NOT ENTER signs and two WRONG WAY signs located at the entrance to the rest area which confront an operator attempting to exit incorrectly. See Gary A. Funk affidavit.

9. Deponent submits that the State has not breached its duty to design, construct and maintain its roadways in a reasonably safe condition.

10. Deponent submits that for the reasons set forth in attached memorandum of law, the claim has no merit and the Court should grant summary judgment and dismiss the claim.

(Paper No. 6 [emphasis in original])



The affidavit of Gary A. Funk, a Regional Traffic Engineer for the NYS Department of Transportation referenced by State's Counsel (Paper No. 6, ¶ 8) recites, in pertinent part:

6. I have reviewed the sketch of the rest area signage prepared by Leonard Hammond, HMS I, shortly after the accident and find that the DO NOT ENTER and WRONG WAY signage at the Kanona Rest Area was in compliance with the New York State Manual of Uniform Traffic Control Devices.

7. I have also read the affidavit of Kent Iggulden, the eye witness to the accident involving Leonard Ball....All of the signs located in the Kanona Rest Area were erected in conformity with the Manual of Uniform Traffic Control Devices.

8. I have reviewed the photographs attached hereto showing the Kanona Rest Area. The photographs fairly and accurately depict the rest area. As shown in the photographs, the rest area has three (3) ONE-WAY signs adjacent to the area where cars and/or trucks park. It also has two (2) DO NOT ENTER signs and two (2) WRONG WAY signs located at the entrance to the rest area which confront an operator attempting to exit incorrectly. The photographs show the angled parking for cars in front of the restrooms that reinforces the one-way dimension of the rest area. The photographs also fairly and accurately depict the view presented to an errant driver traveling in the wrong direction.

9. It is my opinion, based upon a reasonable degree of engineering certainty, that the New York State Department of Transportation exercised sound engineering policy in the selection and placement of signage at the Kanona Rest Area.

(Paper No. 8)



The affidavit Kent Iggulden, referenced by State's counsel (Paper No. 6, ¶ 6) recites in pertinent part:

2. On May 2, 1997, at or around 2 PM, I was traveling eastbound on Route 17 near the Kanona Rest Area in Steuben County. It was a bright, sunny day. I noticed a blue car that was also traveling eastbound to my left. At first, I thought the blue car was on an access road behind or adjacent to the rest area. As I continued to watch the vehicle, I realized that the blue car was actually driving out the entrance to the Rest Area, heading the wrong way on Route 17.

3. I watched as the vehicle entered the westbound lanes of Route 17, heading in an eastbound direction. At that time, I was traveling parallel to this blue car and slowed my vehicle to 55 mph from 65 mph to keep even with this car that was traveling east in the westbound lanes.

4. I began flashing my lights towards the oncoming traffic to warn them.

5. Early on, I remember seeing at least one vehicle move from the passing lane to the driving lane to avoid this oncoming blue car. Traffic was moderate that day and it seemed that most of the westbound vehicles were traveling in the driving lane.

6. I continued along and just started to get of at the Bath exit, when the blue car collided with an oncoming vehicle. I didn't really see the collision because of some bridge guiderail obstructing my view, but I could see the dust and debris flying from the impact. I pulled over to the shoulder part way down the exit ramp and tried to call 911, but it was busy.

7. I walked back up the exit ramp and gave my name and address to an officer on the scene.

8. Sometime after the accident, when I was going throught [sic] the area again, I checked the distance from the rest area to the accident site with my odometer and it was 2 miles plus.

(Paper No. 7)[1]


In opposition, Claimant's counsel affirms, in pertinent part:

4. ...At the time of the subject accident, the Claimant, LEONARD W. BALL, was traveling westbound on Route 17, a divided highway separated by a grass mall. Immediately prior to the happening of the subject accident, Kathyrn [sic] A. Arnold exited the Kanona Rest Area in the wrong direction and proceeded to travel eastbound in the westbound lane of travel on Route 17 when the Arnold vehicle collided with the BALL vehicle. BALL was following behind a tractor trailer that swerved to avoid the Arnold vehicle leaving BALL to be struck in a head on collision. Attached hereto as Exhibit "C" is the examination before trial of LEONARD W. BALL.

5. It is undisputed that the Claimant, LEONARD W. BALL, does not have any recollection of the subject accident. See Exhibit "C."

6. Shortly after the happening of the subject accident, between approximately 2:00 - 3:30 p.m. on May 2, 1997, Leonard Hammond, a Highway Maintenance Supervisor II for the STATE OF NEW YORK, in charge of the Kanona Rest Area went to the accident scene, which accident scene is two (2) miles east of the Kanona Rest Area. Attached hereto as Exhibit "D" is a copy of Mr. Hammond's examination before trial, see pp. 5-7. Mr. Hammond did not check the signs at the Rest Area on the day of the accident even though he passed such Rest Area immediately after the accident occurred. See Exhibit "D" at p. 21. He did, however, make out an incident report. See Exhibit "D" at p. 7. A copy of such incident report is attached hereto as Exhibit "E."

7. The week following the accident, Merle Sebring, the Resident Engineer for the STATE OF NEW YORK, directed that Mr. Hammond go to the Kanona Rest Area and check the signs. Mr. Sebring told Mr. Hammond to make a sketch of the signs which is attached hereto as Exhibit "F." He did not instruct him to take photographs. Nor was any work order made out for this.

8. Several representatives of the STATE have been deposed in the instant action. Specifically, the following witnesses have been deposed with their job titles [sic] as of May 2, 1997:

Gregory L. DiPasquale February 1, 1999

New York State Trooper in charge of investigation

Raymond Dimick February 1, 1999

Highway Maintenance Supervisor

William Jones May 4, 1999

New York State Police Investigator

David Burrows May 4, 1999

Unknown and in charge of sign crew for Kanona Rest area

Thomas Mauro October 25, 1999

Engineer

Leonard Hammond April 25, 2000

Highway Maintenance Supervisor

David Burrows April 25, 2000

In charge of sign crew for Kanona Rest Area

9. To date, however, Claimant has been unable to depose Gary Funk, the Regional Traffic Engineer for the NYS Department of Transportation, Region 6 in Hornell, New York. Mr. Funk's Affidavit is attached to the Attorney General's moving papers. Claimant tried to take the deposition of Mr. Funk on many occasions. Most recently, your deponent's associate specifically inquired regarding the availability of Mr. Funk on April 3, 2000 and April 20, 2000. Your deponent's office was advised that Mr. Funk was not available. Your deponent brought this to this Honorable Court's attention per my attached letter of April 18, 2000, attached hereto as Exhibit "G," and the Court advised your deponent that Mr. Funk could be questioned at the time of trial. The STATE relies upon the Affidavit of Mr. Funk as their alleged expert in their moving papers here.

10. Although discovery has been exchanged in the within matter, certain discovery remains outstanding, in particular, Defendant has not provided the Claimant with the original of Exhibit "13" which is the incident report and sketch that Mr. Hammond prepared at some time after the accident as stated above. It should be noted that this sketch was not initially provided to the Claimant, rather it was provided late in discovery, the STATE claiming to have newly found it although it supposedly was attached to the incident report prepared by Hammond Exhibit "E." Additionally, the STATE has just provided Claimant with the work orders for the period of April 1, 1997 to June 30, 1997 as requested by the Claimant on many occasions some months ago. Such purported records have been received by your deponent on June 15, 2000 and, if relevant, will be referred to at the time of oral argument with permission of the Court.

11. There is no dispute that one (1) of the proximate causes of the subject accident was the negligence of Ms. Arnold, an 87 year old driver. It is also submitted, however, that the STATE's negligence was also a proximate cause of the subject accident. Specifically, there is a question of fact as to whether the STATE had proper and adequate signage at the Kanona Rest Area on the day of the accident from where Arnold exited according to the Affidavit of Kent H. Iggulden, said Affidavit being attached to the moving papers of the Attorney General and hereto as Exhibit "H."

12. The testimony of David Burrows, the alleged person in charge of the sign crew on the date of the accident, raises several serious questions of fact. It should be noted that the Attorney General does not attach any of Mr. Burrow's [sic] testimony to his moving papers. An opportunity should be afforded the Claimant to call Burrows and question him regarding his inconsistent testimony in this case.

13. In the first instance, it should be noted that witness Hammond, when asked, testified that the sign crew coordinator would be in charge of the signs on the day that this accident occurred. Such witness identified Mr. Burrows as the person in charge. For example, see Exhibit "D" at pps. 7, 38. Yet, Mr. Burrows, during his testimony, was unclear on this point. Attached hereto as Exhibit "I" is the examination before trial of David Burrows conducted on May 4, 1999 wherein at p. 6 he testified I "was not in charge of sign crew at that time" (referring to the date of the accident).

14. Critically, at Mr. Burrows' May 1999 examination before trial he testified that he first learned of the accident when Wayne Marble, the STATE's investigator, called him in March of 1999, almost two (2) years following the accident:

Q: Mr. Burrows, did you ever go to the scene of this accident that occurred?

A: No.

Q: And you said that the first time, I believe if I'm correct, and correct me if I am wrong, the first time you learned of this accident was when Mr. Marble talked to you about it?

A: Right.

Q: And that was a couple weeks following the accident? After you learned of it?

A: No, that was, I'm going to say sometime in March when Wayne contacted me.

Q: Ok, March of this year? Of ‘99?

A: Yes.

Q: But prior to that time you had no idea that this accident occurred?

A: No.

See Exhibit "I" at pps. 35, 36.

15. However, at Mr. Burrows' second examination before trial conducted on April 25, 2000, some ten (10) months after his first examination, he testified that he was in fact "acting as the sign crew supervisor." on the date of the accident. See such examination before trial attached hereto as Exhibit "J" at p. 16.

16. In contrast with his prior testimony of May 4, 1999, at such deposition of April 25, 2000, Mr. Burrows testified that one of his supervisors (Merle Sebring) told him to go out and check the DO NOT ENTER and WRONG WAY signs at the Kanona Rest Area after the accident occurred but to his knowledge he never reported back to his supervisor. A reading of pps. 15-20 in his deposition of April 20, 2000 raises a strong question of fact as to what the STATE did following the accident. Although there is no record of such inspection shortly after the accident, Mr. Burrows testified that he went to the scene after the accident and observed that there were DO NOT ENTER and WRONG WAY signs at the Rest Area. Mr. Burrows testified that although he had a camera available to him, he did not use it to photograph the signs Mr. Sebring asked him to inspect. In the moving papers of the STATE there is no Affidavit of Mr. Burrows or any reference to his testimony whatsoever. Nor is there any affidavit from Mr. Sebring relating to his knowledge of the circumstances surrounding the accident and signs that were at the Kanona Rest Area on May 2, 1997.

17. It is submitted that a genuine question of fact arises as to when Mr. Burrows went to the Kanona Rest Area after the happening of the subject accident, why he went to the Rest Area and what he did there. The trier of fact should have the opportunity to evaluate the testimony of STATE's employees.

There is no admissible evidence that anyone checked the ONE WAY signs at the Kanona rest stop. Actually, Mr. Hammond testified that he was never asked to check such signs that are required.

18. Further, during both of his examinations before trial, Mr. Burrows testified about the use of stickers on the back of signs by the Defendant. Mr. Burrows testified that when installing the signs the STATE puts stickers on the back of the signs to indicate the date when same were installed. See Exhibit "G" at p. 12 and Exhibit "H" at p. 15. Mr. Hammond also testified that stickers are used by the STATE on back on [sic] signs to indicate when such signs are installed. See Exhibit "D" at p. 36.

19. It is uncontroverted that there were no stickers on the signs in the Kanona Rest Area at the location where Ms. Arnold exited on May 2, 1997.

20. Accordingly, we have no idea what signs were at the Kanona Rest Area on May 2, 1997 when this accident occurred.

21. In an Affidavit attached to the Attorney General's moving papers, Gary Funk, the Regional Traffic Engineer for the NYS Department of Transportation, Region 6 in Hornell, states at paragraph 8:

I have reviewed the photographs attached hereto showing the Kanona Rest Area. The photographs fairly and accurately depict the Rest Area. As shown in the photographs, the Rest Area has three (3) ONE-WAY signs adjacent to the area where cars and/or trucks park. It also has two (2) DO NOT ENTER signs and two (2) WRONG WAY signs located at the entrance to the Rest Area which confront an operator attempting to exit incorrectly. The photographs show the angled parking for cars in front of the restrooms that reinforces the one-way dimension of the Rest Area. The photographs also fairly and accurately depict the view presented to an errant driver traveling in the wrong direction.

22. It is respectfully submitted that Mr. Funk's statements are made without any basis whatsoever. In making such statement, Mr. Funk relies entirely on the Claimant's photographs taken on May 16, 1997, after the accident. Said Affidavit makes no reference as to what date such photographs "fairly and accurately depict the Rest Area." Further the Funk Affidavit never states that the signs were at the Rest Area on the date of the accident, rather it merely states that "as shown in the photographs" the signs were there.

23. On October 25, 1999, the Claimant deposed Thomas Mauro, the STATE OF NEW YORK's Engineer in charge of the rehabilitation of the Kanona Rest Area, whose responsibility included the placement of signs pursuant to the Manual of [sic] Traffic Control Devices in 1991. Said examination before trial is attached to the Affidavit (Exhibit "C") of Claimant's Engineer, John A. Serth, Jr.

24. Mr. Mauro testified that in his professional engineering opinion, three (3) DO NOT ENTER signs should be installed at the location where Ms. Arnold exited the Rest Area, rather than two (2). He explained that although the original plans called for two (2) signs, he believed three (3) signs were necessary. See testimony of Thomas Mauro at pps. 23-25, 30, 31, attached to the Affidavit of John A. Serth, Jr. Claimant's Engineer.

25. Mr. Mauro testified at his aforesaid deposition at pps. 25, 26 that three (3) "Do Not Enter" signs were necessarily placed at the entrance area in 1991 for westbound traffic exiting the Kanona Rest Area in the wrong direction:

Q: Why did you feel it was better to install three as opposed to two of the do not enter signs?

A: My feelings at the time - - - I can't recall. Apparently, I felt that it was in the best interest of the traveling public's safety to install the signs with that configuration.

Q: Prior to your recommending these three signs of do not enter as opposed to the two that were originally planned, did you do any study or were you aware of any study that was done to indicate the traveling public going out the wrong way of the rest area?

MR. SHOEMAKER: When you say, "you", generic State of New York or him personally?

MR. TENNEY: Generic State of New York.

A: I wouldn't have knowledge to that. I wouldn't be aware of anything being done in that context. The assumption that I would have to make is that these things were designed by professional engineers with knowledge of traffic and safety. And they were designed to the standards and policies of that time.

Q: Did you discuss with Mr. Funk at all a placement of additional do not enter signs? (Mr. Funk was the Regional Traffic Engineer for the New York Department of Transportation for the Kanona Rest Area since 1985. He also has submitted an alleged expert Affidavit in the State's moving papers herein.)

A: It was discussed with a person under his supervision.

26. Having made the determination that three (3) signs were necessary, Mr. Mauro went on to testify at his deposition of October 25, 1999 that according to his diary (Exhibit "8D" - marked at Mauro's deposition) he had discussed sign [sic] with other responsible employees of the STATE and it was installed as of October 1, 1991. See Mauro examination before trial at pps. 48-51.

27. Indeed, in claiming that signs were present on the date of the accident, the STATE looks to 1988 construction plans, yet Mr. Mauro testifies that the signs, unequivocally, were completely changed in 1991.

28. Although the STATE has failed to submit any proof in admissible form as to what signs, if any, were at the subject location on May 2, 1997, the STATE concedes that there were not three (3) DO NOT ENTER signs.

29. Pursuant to CPLR 3212 (b), and as further set forth in Claimant's accompanying Memorandum of Law, Defendant must show that there are no questions of material fact with regard to Claimant's claim in order to have such claim dismissed.

30. It is respectfully submitted that Defendant has clearly not met its burden on the within motion. Genuine questions of fact remain, including, (1) the deposition of Gary Funk; (2) the work orders, recently provided, and original incident report and sketch, Exhibit "13"; (3) what signs, if any, were at the location of the Kanona Rest Area where Ms. Arnold exited on May 2, 1997; (4) why was the testimony of Mr. Burrows, the person allegedly in charge of the sign crew, contradictory as it related to his inspection of the signage at the Kanona Rest Area, both as to signs present and as to his alleged date of inspection; and (5) why didn't the STATE photograph the Rest Area or at least inspect such Rest Area after a fatal accident, having various State Police at the scene, as well as Mr. Hammond, and having been advised by a witness Ms. Arnold had entered the westbound 17 from the wrong direction from the Kanona Rest Area.

31. It is further submitted that the STATE's failure to properly mark the Kanona Rest Area was a concurrent and proximate cause of the subject accident. There is clearly a question of fact as to whether or not proper signage would have warned Ms. Arnold that she was traveling in the wrong direction.

(Paper No. 10 [emphasis in original])



The affidavit of John A. Serth, Jr., a Civil Engineer submitted in opposition, recites, in pertinent part:

1. I am a Civil Engineer...

***

3. I have reviewed the pleadings in this case, the deposition transcripts together with the exhibits marked at such depositions, as well as the discovery items in this case that have been exchanged between the parties. In particular, I have reviewed the accident report and the deposition of New York State Trooper Gregory L. DiPasquale (Exhibit "A"). I have also reviewed the Affidavit of Kent H. Iggulden, which Affidavit was attached to the moving papers for summary judgment of the Defendant herein (Exhibit ""B [sic]).

4. From the aforesaid review it appears that the late Kathryn Arnold, a lady 87 years of age, was driving her blue car eastbound on the westbound Route 17 and collided with the automobile driven by the Claimant. Ms. Arnold was killed and Mr. Ball received grave injuries in the accident.

5. The Affidavit of Mr. Iggulden (Exhibit "B") states that he saw the Arnold vehicle drive out the entrance of the Kanona Rest Area and headed the wrong way on Route 17, a divided two-lane highway for eastbound and westbound traffic and shortly thereafter the accident occurred.

6. I have reviewed the New York State Department of Transportation logs, materials and maintenance records provided by the Defendant which logs were up to the date of ______, 1997 [sic].

7. I have also reviewed the deposition of Thomas Mauro taken on October 25, 1999 (Exhibit "C") an employee of the New York State Department of Transportation since 1968. He was the engineer in charge of the rehabilitation of the Kanona Rest Area in 1991. He testified at p. 5 of such deposition that new signs were placed at that time.

8. Mr. Mauro testified at his aforesaid deposition at p.25 [sic] that three (3) "Do Not Enter" signs should be placed at the entrance area in 1991 for westbound traffic entering the Kanona Rest Area to warn motorists exiting the wrong way from the Kanona Rest Area:

Q. Why did you feel it was better to install three as opposed to two of the do not enter signs?

A. My feelings at the time - - - I can't recall. Apparently, I felt that it was in the best interest of the traveling public's safety to install the signs with that configuration.

Q. Prior to your recommending these three signs of do not enter as opposed to the two that were originally planned, did you do any study or were you aware of any study that was done to indicate the traveling public going out the wrong way of the rest area?

MR. SHOEMAKER: When you say, "you", generic State of New York or him personally?

MR. TENNEY: Generic State of New York.

A. I wouldn't have knowledge to that. I wouldn't be aware of anything being done in that context. The assumption that I would have to make is that these things were designed by professional engineers with knowledge of traffic and safety. And they were designed to the standards and policies of that time.

Q. Did you discuss with Mr. Funk at all a placement of additional do not enter signs? (Mr. Funk was the Regional Traffic Engineer for the New York State Department of Transportation for the Kanona Rest Area since 1985. He also has submitted an alleged expert Affidavit in the State's moving papers herein.)

A. It was discussed with a person under his supervision.

9. All of the depositions, pictures, and other items that I have reviewed are unanimous in their findings that three (3) "Do Not Enter" signs were not installed by the State of New York as recommended by Thomas Mauro.

10. The State's failure to place the necessary signage that they deemed necessary is a proximate cause of the accident that occurred to the Claimant herein.

(Paper No. 11)



More extensive pertinent excerpts from Mr. Mauro's deposition testimony, attached to


Paper No. 11 as Exhibit C, follow:

Q. Now, do you know why this particular or these particular signs were put up at the Kanona rest area in 1991?

A. To conform to the department policies and standards of that time.

***

Q. Who would know the standards and policies that would explain to us as to why these signs were put up?

A. I think the standards and policies are an accumulation of department knowledge that has been continuously looked at over the course of time and amended to meet whatever is determined to be the best practice at that time. And any one individual wouldn't be able to answer that question.

***

Q. Where is that located?

A. One source would be the manual of the uniform traffic control devices, the other would be standard specification of the State of New York enforced at that time and another would be the current design manual for that time. And all active engineering bulletins and instructions enforced at that time.

***

Q. So, the traffic and signage department or traffic and safety department, who would that have been?

A. Gary Funk was in charge at that time.

***

Q. And can you tell me what Gary Funk would have done in relation to the plans for the Kanona rest area that we are discussing here this morning?

A. His group generally does the actual design of the signs and the location.

***

Q. Did you have anything to do with whatsoever providing or selecting any of the signs that are indicated on Exhibit 7 at the Kanona rest area?

A. Yes.

Q. What can you tell us as to what you did?

A. When we started placement, I contacted our regional office concerning areas that I thought may have been better served with additional signage. And we increased the amount of signing in that area.

Q. And when you say, "in that area," you are referring to the Kanona rest stop area, is that correct?

A. Yes.

Q. Can you tell me as to what you recommended as far as additional signage was concerned as you look at Exhibit 7, which you have described as the final as-builts, to your knowledge?

A. I can't at this time period tell you whether it was my recollection or an assistant from traffic and safety, but we did add signs there (indicating). We added additional text 8.

Q. That is the 179A location?

A. Right. And we added an additional text 183A over 4, bringing that to three in that area. And then the no parking, the parking restrictions were - - I can't remember if they were added or amended in there at the time. But the parking restrictions were brought up to the current standards or policy at times 16, 17 and 18 signs, I believe.

***

Q. Why did you feel it was better to install three as opposed to two of the do not enter signs?

A. My feelings at the time - - I can't recall. Apparently I felt it was in the best interest of the traveling public's safety to install the signs with that configuration.

Q. Prior to your recommending these three signs of do not enter as opposed to the two that were originally planned, did you do any study or were you aware of any study that was done to indicate the traveling public going out the wrong way of the rest area?

MR. SHOEMAKER: When you say, "you," generic state of New York or him personally?

MR. TENNEY: Generic state of New York.

A. I wouldn't have knowledge to that. I wouldn't be aware of anything being done in that context. The assumption that I would have to make is that these things were designed by professional engineers with knowledge of traffic and safety. And they were designed to the standards and policies of that time.

Q. Did you discuss with Mr. Funk at all a placement of additional do not enter signs?

A. It was discussed with a person under his supervision.

Q. And did you personally have any knowledge of any study being done prior to 1991 relating to people driving out the wrong way on the entrance ramp to the Kanona rest area?

A. I would have no personal knowledge of that.

Q. Is there any record kept as to any type of investigation relating to incidents involving people that go out the wrong way of entrance ramps to rest areas in the State of New York?

A. That would be a question that you would have to pose to our research and development people.

Q. And who would that be in this region?

A. That would be the main office.

Q. In Albany?

A. Yes.

Q. And did you work with any of those people prior to the preparation of the plans as indicated in Exhibit 1?

A. I didn't prepare these plans. I was engineer in charge during construction.

MR. TENNEY: Mr. Shoemaker, I would ask for any studies that have been done by the State of New York relating to the traveling public going the wrong way on an either ramp or rest area, any such studies that may have been done over the last 20 years if it is available.

MR. SHOEMAKER: I said this to you in an earlier deposition and routinely I do depositions two or three times out of the office a week. I don't go back to the office in time to answer all requests for information. It doesn't have to be formal discovery, if you could put it in a letter, it's much easier to reference it. Twenty years might be a bit much.

A. This is designed to the ASHTO standards, so it wouldn't necessarily be built on state research but federal.

Q. ASHTO?

A. American Society of Highway Transportation Operation. They are the federal standards, the federal government.

Q. Was [sic] there federal funds used in construction and planning?

A. Without checking the records, I couldn't tell.

Q. The federal standards would have to be involved if there were federal funds involved?

A. In the original construction. This was a rehabilitation contract.

Q. As long as we have got to that point, let me show you what has been marked as Exhibit 6, and I will ask if you can identify the particular page.

A. Appears to be the cover sheet of the FASTETS 72-6.

Q. Can you identify this particular page as being the record plans for the initial installation of the Kanona rest area which we were talking about here today?

A. Not from this sheet, because there is no indication that a rest area was part of it.

***

Q. I may have asked you this, what did you base your decision on to recommend the additional wrong way sign at the Kanona rest area?

A. I didn't put a reason down. I just called the office on August 29 to discuss the do not enter signs on the rest area with Don Travis, who worked under Gary Funk's supervision, I believe. And it was determined to add that additional sign for better coverage in that area.

Q. But you don't recall why you did that?

A. It would fall under the part of my job in reviewing location out there. There could have been any number of reasons.

Q. Prior to your recommending that additional wrong way sign for the entrance area off westbound 17 into the Kanona rest area, were you aware of the fact that a person or persons had driven the wrong way on this entrance area to the Kanona rest area?

A. I had no personal knowledge of that happening.

Q. Had anybody given you any information that this had happened previously?

A. No, sir.

Q. Were you involved in placement of wrong way signs on entrance [sic] and exits on through highways from areas other than rest areas?

A. Yes.

Q. And were you aware of people going the wrong way on entrance and exit ways to get onto the thruways?

A. I have no personal knowledge of it, no. I'm sure that it occurs from time to time.

Q. Were you or were you familiar back at that time that accidents had occurred on New York State highways as a result of people getting on the wrong way, either from rest areas or entrance areas from adjoining roads?

A. I think that would be common knowledge, that anybody aware of current events would have knowledge of that happening, yes.

Q. Did you take that knowledge that you had prior to 1991 and recommend the addition of a third wrong way sign at the Kanona rest area?

A. I think that people in my position are always looking to make things as safe as we possibly can when we go out there. Yes.

***

Q. Mr. Mauro, let me show you what we marked as Exhibit 8 and I will ask you as to what is included in this manila folder?

A. There are copies of one or two diary sheets D254399, a couple of inspector's reports indicating dates when certain signs were installed on that project and my personal set of work plans from the job.

Q. And tell me as to what function your personal set of work plans served on this particular project.

A. They're a set of original plans which I jot notes to myself during the progress of work and things that need my attention, or it's a tool that we use during the course of the job to help record what is going on. And to the personal notation, it is to assist in making out the daily diaries.

***

Q. Tell us as to what Exhibit 8A is, please.

A. It's a copy of the plan sheet number 54 from D253499, from my work set of plans.

***

Q. And that basically, Exhibit 8A, is the same sheet as Exhibit 7, only it is a reduced copy, is that correct?

A. Yes. I would like to correct the statement as to Exhibit 7. This (indicating) merely has my notes on it. The Exhibit 7 is as-built plans. This (indicating) was only a work copy on the field. Exhibit 7 is the as-built plans on it.

Q. Is there any difference between Exhibit 7 and Exhibit 8A as far as the Kanona rest area is concerned?

A. Yeah. The actual signing as constructed would be indicated on Exhibit 7.

***

Q. I was wondering why you have these documents 8B, C, D, and E and why you had those in your file. [sic]

A. Because these refer to the installation dates of the signs in the area in question here now.

Q. Now, I will try to go numerically with you, if I could. Firstly, I will refer to what we have marked as Exhibit 8D, which is engineer's daily project diary dated August 29, 1991. First of all, is this your diary, Mr. Mauro?

A. It's the diary for that particular project that I was responsible for, yes.

Q. Is this your writing on this document - -

A. Yes.

Q. - - relating to the traffic and project signs as you have written on Exhibit 8D? Do you make reference to do not enter signs which we discussed?

A. Not under the maintenance and protection traffic notes. That pertains to the daily temporary signing and delineations that the contractor has to provide during construction procedures.

Q. I can't make out, it is sort of dark here on this copy, the sentence referring to your discussion with Don Travis relating to the do not enter signs in the rest area. Do you see that on there?

A. Yes.

Q. Can you tell me what that means?

A. Just indicates to me that I had a discussion with our Hornell office about adding that particular sign.

Q. And you had the discussion with Don Travis, is that correct?

A. According to the notes.

Q. Could you just read that, I'm sorry, I can't make it out. Could you just read it for me?

A. I called the regional office and discussed the do not enter signs in the rest area with Don Travis. It was determined to add one on the ramp to properly post the through lane.

Q. And is that the lane you are referring to for westbound traffic to exit 17 and to pull into the Kanona rest area.

A. It appears to be that, yes.

Q. Does that refresh your recollection that after August 29, 1991, a further do not enter sign was installed at the entrance to the Kanona rest area?

A. Refresh my memory as to what?

Q. That it [sic] being done or that you requested it.

A. The record plans indicate that it was installed.

Q. And do you know when it was installed?

A. Are you referring to location 179A, text number 8?

Q. Yes.

A. The inspector's report number 382.

Q. That is Exhibit 8B, go ahead.

A. It indicates that it was in its final location properly installed for payment as of October 2, ‘91.

Q. Now, if I could refer you to inspector's daily record dated September 10, ‘91, Exhibit 8C, what does that cover?

A. That covers the final payment on a number of signs.

***

Q. Now, if I could refer you to inspector's daily report dated September 13, 1991, which we have marked as Exhibit 8E, could you tell me what is covered by that particular inspector's daily report which you approved?

A. It is payment for various signs and some sawing and sealing joints in asphalt overlays.

***

Q. Following this accident on May 2, 1997, did you or anyone under your direction go to Kanona rest area to check out the signage?

A. No.

Q. Are you aware of anybody on behalf of New York that went to the Kanona rest area after May 2, 1997, to check out the signage?

A. I have no knowledge of it.

***

Q. Is it fair to say that after the state accepted the work of the contractor, under the record plans, the first page of which is Exhibit 1, it then becomes the responsibility of the maintenance department of the Department of Transportation of the State of New York to check the condition, location and the existence of the signs at the Kanona rest area?

A. After the acceptance by the State of New York of a construction project, it becomes the responsibility of maintenance operation to maintain these facilities. What their procedures and policies are is outside my working knowledge of the department.

***

Q. Mr. Mauro, are you familiar whether or not there are any dates indicated on the back of these signs that we are talking about here at the Kanona rest area which would indicate when the signs themselves would have been installed?

A. My understanding is that the new procedure is to date the signs. At this particular time the record for installation would be the project records. There again, that would be a maintenance policy that I'm not familiar with and only have hearsay on.

Q. Do you know if there is any policy or procedure or standard by the State of New York in determining what signs to place for wrong way entry either from a rest area or from an adjoining intersection? Is there any policy or standard or procedure relating to the age of the drivers who are diversing [sic] the highways of New York?

MR. SHOEMAKER: Do you understand the question that he is asking you?

A. You're asking if we sign a particular situation based on one particular group of people?

Q. No. Not if you do it based upon one group of people, but is the age of the persons who are driving in the State of New York taken into consideration by the state in the location and design of the signage?

A. I don't develop the policy or standard and you would have to ask someone that does that....

(Paper No. 11, Ex C)



A motion for summary judgment (SJ) "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212 [b]). CPLR 3212 goes on to provide that a motion for summary judgment shall be denied "if any party shall show facts sufficient to require a trial of any issue of fact". (CPLR 3212 [b] [underscoring added]) With regard to this provision, the Court of Appeals has held:
[B]ecause "summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue" (Moskowitz v Garlock, 23 AD2d 943, 944), we have scrutinized the affidavits carefully, in the light most favorable to [the non-moving party]. But only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment.

(Rotuba Extruders v Ceppos, 46 NY2d 223, 231; see also, Nidds v Procidano, 95 AD2d 912).


With "any doubt as to the existence of a triable issue" in mind, the Court returns to Claimant's counsel's summary of what he views as "Genuine questions of fact". (supra, p 11) The first is "the deposition of Gary Funk". Manifestly, the deposition of Funk is not an issue of fact. The fact is, there has been none. Claimant's counsel's point here, the Court infers, is that at the deposition of Funk an issue of fact could be developed or addressed. How helpful such a deposition would be, from Claimant's counsel's point of view, is questionable, since Claimant's counsel states that Funk's averments "are made without any basis whatsoever" (supra, p 9), apparently since Funk was not present at the time of the accident and since Claimant's photographs, which Funk was addressing in his Affidavit, were taken on Claimant's behalf on May 16, 1997, two weeks after the accident. (see infra, pp 23-24) Claimant's counsel's point here, therefore, appears to be that photographs taken two weeks after the accident may not or do not accurately reflect the signing at the scene of the accident on the date of the accident. (see, Paper No. 10, ¶ 22)


With regard to Funk, the Court did indeed point out at the conference on April 2, 2000 that Funk could be "questioned at the time of trial" (Paper No. 10, ¶ 9; supra, p 7), but this advice must be placed in context. The Claim herein accrued on May 2, 1997 and the Claim was filed on July 24, 1997. Thereafter, the Claim remained in Limbo until February 1999 when Claimant was deposed (see, Paper No. 10, Ex. C) as well as two State employees. (see, Paper No. 10, ¶ 8) On March 9, 1999 the Court conducted a conference with counsel. At that time Claimant had not retained an expert witness. The Court directed that any additional examinations before trial were to be completed by May 14, 1999 and that if Claimant intended to retain an expert witness, to do so by that date. (Paper No. 4) The Court informed counsel that there would be a further conference on May 14, 1999 at which conference a trial date would be set. (Paper No. 4) At the further conference held on May 14, 1999, the Court was informed that Claimant had not retained an expert as yet and that more examinations before trial of State employees were needed. The Court directed that the examinations before trial can be completed and schedule this Claim for trial to begin on August 3, 1999 but was adjourned. (Paper No. 4) A further conference was held on September 24, 1999 at which time examinations before trial had not been completed. The trial was then scheduled to commence on October 6, 1999. (Paper No. 4) By letter dated November 1, 1999 the Court Clerk, Binghamton District, informed counsel for the parties that

Judge Hanifin has asked me to remind counsel that the trial of this two plus year old Claim has been adjourned twice, and that by letter dated September 28 you were advised that the adjournment until November 18 would be the last adjournment granted in this matter. The November 18 trial date is set in stone.

(Paper No. 4)


Obviously, the stone crumbled. A further conference was conducted on November 15, 1999 and the Court issued an Order on that date which required that "further and/or additional examinations before trial of State employees be completed on or before April 28, 2000, and if conducted, expedited copies of the transcript be obtained by Claimant" and that "the trial of this Claim is scheduled to begin on June 12, 2000". (Paper No. 3) By letter dated April 20, 2000 from the Assistant Attorney General representing the State in this matter, the Court was informed that Claimant "indicated" that he "would like to depose...Gary Funk...when I contacted Gary Funk...I was told that Mr. Funk would be on vacation in the late part of April and the early part of May returning to work on May 8, 2000". (Paper No. 4) Assuming that the deposition of Funk is needed, and it may well be, the mystery is not that it could not be conducted during the time that Funk was on vacation in April and May of 2000, but why it had not been conducted during a reasonable time after the Claim was filed in July of 1997 and before May of 2000.


Needless to say, the ordered trial date of June 12, 2000 joined the three prior trial dates, i.e., August 3, 1999, October 6, 1999 and November 18, 1999 in the trash..


The second issue of fact proffered by Claimant's counsel is "the work orders, recently provided, and original incident report and sketch, Exhibit ‘13'". (supra, p 11) The Court is left in the dark as to exactly how the work orders, the original incident report and the sketch create an issue of fact.


The third issue of fact proffered is "what signs, if any, were at the location of the Kanona Rest Area where Ms. Arnold exited on May 2, 1997". (supra, p 11) At the conference on April 21, 2000, Claimant's counsel informed the Court that he had been to the scene of the accident and had taken "numerous photos within days after being retained". The Court then suggested to Claimant's counsel that he compare the photos that he took "two weeks post-accident" to see if the signing "differs from Hammond (DOT) sketch of signs". The Court queried the Claimant's counsel about whether he observed any evidence of changes in the signage while at the scene two weeks after the accident, but these inquiries led nowhere. At the time of this conference the Court was unaware that Claimant's counsel, when he deposed Burrows on May 4, 1999, had posed a number of questions to Burrows about the photographs taken on Claimant's behalf on May 16, 1997. (Paper No. 10, Ex. I, pp 22-31) During the course of the deposition Burrows described the signing at the scene of the accident as being the same as it appears in photographs submitted by the State on this motion (Paper No. 5, Ex. B) to wit, two "Do Not Enter" signs at the neck of the ramp leading from Route 17 westbound into the rest area at the easterly edge of the rest area and two "Wrong Way" signs facing west located on each side of that same ramp, a short distance from the intersection of the ramp and Route 17 westbound.[2]


The fourth proffered question of fact is "why was the testimony of Mr. Burrows, the person allegedly in charge of the sign crew, contradictory as it related to his inspection of the signage at the Kanona Rest Area, both as to signs present and as to his alleged date of inspection". (supra, p 11) Having deposed Burrows twice, Claimant's counsel avers that "An opportunity should be afforded the Claimant to call Burrows and question him regarding his inconsistent testimony in this case". (Paper No. 10, ¶ 12) That is because Claimant's counsel submits that there is "a genuine question of fact" which arises "as to when Mr. Burrows went to the Kanona Rest Area after the happening of the subject accident, why he went to the Rest Area and what he did there" (Paper No. 10, ¶ 17), all of which led Claimant's counsel to conclude that "Accordingly, we have no idea what signs were at the Kanona Rest Area on May 2, 1997 when this accident occurred". (Paper No. 10, ¶ 20) The problem with this conclusion is that all of the evidentiary facts on the subject found in the papers before the Court lead to one conclusion. That is, that the signing at the scene of the accident on the date of the accident was as shown in the photographs submitted by the State (Paper No. 5, Ex. B) and the photographs not submitted by the Claimant on this motion, which were taken two weeks after the accident and which were described by Burrows at his examination before trial. In other words, all of the photographs reflect the signs and sign locations found in the sketch prepared by Hammond. (see, Paper No. 6, Ex. A; Paper No. 10, Ex. F.)


The fifth and final of the "Genuine questions of fact" is "why didn't the STATE photograph the Rest Area or at least inspect such Rest Area after a fatal accident, having various State Police at the scene, as well as Mr. Hammond, and having been advised by a witness Ms. Arnold had entered the westbound 17 from the wrong direction from the Kanona Rest Area". (Paper No. 10, ¶ 30) The answer to this question of fact is, as a practical matter, who knows or cares? The fact is that the only evidentiary facts submitted by both parties raise absolutely no issue of fact with regard to the actual signage at the scene of the accident, on the date of the accident. Needless to say, innuendo and speculation do not raise issues of fact, particularly when there are absolutely no evidentiary facts that would lead one to believe that the signing was other than what is illustrated in the photographs taken by Claimant's counsel and the State, as illustrated by the Hammond sketch.


In sum, the Court finds that the five genuine questions of fact proffered by Claimant's counsel raise no doubt at all as to the existence of a triable issue. There is none, with regard to each.


Nonetheless, the Court finds that the State's motion for summary judgment must be denied.


Fourteen exhibits were marked for identification at the deposition of Mauro and twelve of them were addressed at that deposition. Exhibits 4 and 5 though marked, were not identified at the deposition. (see, Paper No. 11, Ex. C index of exhibits) As far as the Court can ascertain, none of the exhibits discussed at the Mauro deposition, with the possible exception of Exhibit 12, a photograph (see, Paper No. 11, Exhibit C, p 33), are before this Court. In other words, neither party submitted any of these exhibits to the Court for consideration on this motion. As a result, most of the deposition testimony with regard to a third Do Not Enter sign apparently referenced in Deposition Exhibits 7 the as built plans, 8A a reduced copy of Exhibit 7, 8D Mauro's project diary and 8C the inspector's daily report with regard to payment for signing, is for the most part simply recorded gibberish. A critical part of that deposition is a perfect example. Mauro was asked about his diary and a conversation that he had with a Don Travis, apparently another employee of the Department of Transportation. It was Mauro's recollection that he talked with Travis and "discussed the do not enter signs in the rest area with Don Travis. It was determined to add one on the ramp to properly post the through lane". (Paper No. 11, Exhibit C; supra, p 50) Asked if the lane under discussion was "for westbound traffic to exit 17 and to pull into the Kanona Rest Area" Mauro responded, "It appears to be that, yes". (Id.) One can read this testimony to mean, at least in the context of the State's motion, that a decision was made in 1991 to post a third Do Not Enter sign, someplace, to warn travelers leaving the rest area that the subject ramp was an entrance ramp and not an exit ramp. Exactly where such a sign was located or was supposed to be located vis-a-vis the entrance ramp leading from Route 17 westbound into the rest area, remains a complete mystery, but a mystery that is also a bone fide issue of fact. The mystery deepens somewhat, since common sense dictates that Do Not Enter signs should logically be placed at the entrance or neck of a vehicular thoroughfare, such as a ramp, since placing such a sign elsewhere, for example along the sides of such a thoroughfare or a ramp, distanced from the entrance would serve no purpose and only confuse. Further, such a sign at some location before the actual entrance of the thoroughfare or ramp would similarly make little sense at least based on the documents before the Court. Be that as it may, even where, such as here, it is "not clear from the record" whether a factual issue exists, summary judgment should be denied (Watson v Work Wear Corp., Inc., 202 AD2d 231).


In reaching the result herein, the Court has given no weight to the Affidavit of Claimant's engineering expert which is entirely conclusory (cf., Murphy v A.J. Conner, et al., 84 NY2d 969) That Claimant's engineering expert's supporting affidavit is purely conclusory is difficult to understand since he apparently reviewed "the deposition transcripts together with the exhibits marked at such depositions" (Paper No. 11, ¶ 3) and therefore, presumably, is conversant with the actual or intended location of the third Do Not Enter sign. Under the circumstances, one would have thought he would have been in a position to render an expert opinion with regard to the need for such a sign, based on applicable standards, physical conditions unique to the scene, experience (prior accidents or incidents) or something else. He did not.


In light of the foregoing, the State's motion is denied.



October 14, 2000
Binghamton, New York

HON. JEROME F. HANIFIN
Judge of the Court of Claims




[1]
Paragraph 8 is handwritten and initialed "K H.I.".
[2]
The photographs taken by Claimant's counsel on May 16, 1997 were not submitted to the Court on this motion.