New York State Court of Claims

New York State Court of Claims

MAGGIO v. THE STATE OF NEW YORK and THE NEW YORK STATE THRUWAY AUTH., #2000-006-95061, Claim No. 95061


Synopsis


Claimant alleges negligence on the part of the State of New York and the New York State Thruway Authority. Trial held June 27 & 28, 2000. Judge made a bench decision to dismissed the claim based upon the failure of claimants to prove by a fair preponderance of the credible evidence that the defendant's conduct was a reckless disregard for the safety of others.

Case Information

UID:
2000-006-95061
Claimant(s):
FRANK M. MAGGIO and DINA MAGGIO, Individually and as Husband and Wife
Claimant short name:
MAGGIO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
95061
Motion number(s):

Cross-motion number(s):

Judge:
EDGAR C. NeMOYER
Claimant's attorney:
CELLINO & BARNESBy: Michael J. Cooper, Esq.
Defendant's attorney:
ELIOT SPITZER, ATTORNEY GENERALBy: Gregory P. Miller, Esq.
Third-party defendant's attorney:

Signature date:
July 3, 2000
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Claimant[1]was in an automobile accident which occurred on the New York State Thruway, Niagara section, I-190, in the City of Buffalo near milepost marker N-4.5. Claimant was proceeding south in the far left lane of the Thruway when his vehicle struck the rear of a New York State Thruway Authority dump maintenance truck. The New York State Thruway truck was the last truck in a team of six thruway trucks, that were performing road maintenance on the Thruway in the far left lane. The truck struck by claimant weighed five tons and was approximately nine feet high by eight feet wide. At the time of the accident the rear of the truck was equipped with four orange caution flags, two circular amber lights, four red flashing lights, a large directional arrow board directing traffic to the right, and a crash attenuator with large yellow and black stripes. There was also a large"LANE CLOSED" sign between the directional arrow board and the top of the crash attenuator. The credible proof established the truck was either stopped momentarily or moving slowly at one to three miles per hour when the accident occurred. The proof also established that, at the time of the accident, the truck was located on a straight section of the Thruway, approximately six hundred feet from where cars approaching it from the rear came out of a curve with a 1,500 foot radius. Claimant maintains the defendant, New York State Thruway Authority, was negligent in the operation of the thruway truck, in failing to provide adequate notice and warning to oncoming traffic, and failing to comply with proper procedures for a continuously moving maintenance procedure, and further in failing to have adequate emergency lighting devices and signage to warn oncoming traffic.

A trial was held in this matter June 27 and 28, 2000. At the conclusion of the trial, which included both claimants' and defendant's proof, the claim was dismissed on the record based upon the failure of claimants to prove by a fair preponderance of the credible evidence that defendant's , New York State Thruway Authority's, conduct constituted a reckless disregard for the safety of others.
Wilson v State of New York, 703 NYS2d 848; Riley v County of Broome, 700 NYS2d 573. As no proof was presented regarding the liability of the defendant, State of New York, that claim must be dismissed.
Now, therefore, it is

ORDERED, that judgment be entered dismissing the claim.


July 3, 2000
Buffalo, New York

HON. EDGAR C. NEMOYER
Judge of the Court of Claims




[1]References to claimant herein are to Frank M. Maggio.