New York State Court of Claims

New York State Court of Claims

CERBONE v. THE STATE OF NEW YORK, #2000-010-081, Claim No. 97387


Claimant hit by State car. Defendant 100 percent liable

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 5, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Lori Cerbone, hereinafter claimant,[1]
seeks damages for injuries she sustained on June 28, 1996 when she was driving her automobile southbound on Route 9 in Westchester County and was struck by a State owned car driven by Wilmer Michel, an employee of New York State Office of General Services.
In the vicinity of the accident, Route 9 has two southbound and two northbound lanes separated by a double yellow line. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that, on the morning of June 28, 1996, she proceeded southbound in the right lane of Route 9 from her home in Verplank to her place of employment in Ossining. When she was approximately five feet from the Snowden Avenue exit, a State-owned car that had been traveling in the left lane, hit the left door and left fender of claimant's vehicle.[2]
Claimant stated that she had first observed the State car proceeding parallel to hers for 15 seconds prior to the collision. She maintained that the other driver had attempted to turn right onto Snowden Avenue from the left lane and, in the process, the right front of the State car struck claimant's automobile. Claimant braked and her car stopped at the corner of Route 9 and Snowden Avenue.
Wilmer Michel, the driver of the State car, testified that on June 28, 1996, he was employed by New York State in the Office of General Services and was driving southbound on Route 9 in a State owned vehicle to his place of employment at Sing Sing Correctional Facility. Michel entered Route 9 in Croton, approximately 12 minutes prior to the Snowden exit, and had traveled exclusively in the left lane until he realized that he did not have enough time to make the Snowden exit. He testified that, approximately three seconds later, he put his blinkers on, looked in the rearview mirror and started to go right to prepare for the next exit. Contrary to his trial testimony, at his examination before trial, Michel stated that he did not recall looking in the rearview mirror nor to his right. At trial, however, he maintained that, while he did not specifically recall looking in his rearview mirror, he knew he had done so because he always proceeded in that manner before changing lanes.

Three days after the accident, Michel completed a Report of Motor Vehicle Accident for the New York State Department of Motor Vehicles (Ex. 1). He drew a diagram showing his car crossing over the line into claimant's lane and striking the front left of her vehicle. Despite his testimony at trial that he never saw claimant's car after the impact, his accident report
included a description of the property damage to claimant's car. Michel maintained that he had assessed the damage to claimant's car based upon the position of the vehicles in his diagram. According to Michel's report, the accident occurred at 7:45 a.m. Michel could not recall whether he was supposed to be at work at 7:30 a.m. or 8:00 a.m.
The State is not an insurer of the safety of its roadways and the mere happening of an accident on the roadway does not render the State liable (
see, Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Claimant has the burden of establishing that defendant was negligent and that such negligence was a proximate cause of the accident (see, Bernstein v City of New York, 69 NY2d 1020, 1021-22; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519).
Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that, after Michel realized that he had missed the Snowden exit, he hastily and without due care, proceeded into claimant's lane and impacted with claimant's car. While Michel maintained that he never saw claimant's car, he was bound to see that which should have been seen with the proper use of his senses (
see, Weigand v United Traction Co., 221 NY 39; Sappleton v Metropolitan Suburban Bus Auth., 140 AD2d 684). Michel also admitted that, contrary to Vehicle and Traffic Law §1120(a), he was proceeding continuously in the left lane and was not passing any other vehicles. This is additional evidence of Michel's negligence (see, Franks v State of New York, 55 AD2d 978).
In sum, the Court finds that there was no evidence that claimant was negligent in her driving and that the sole proximate cause of the accident was the negligent manner in which Michel drove the State owned vehicle (
see, Andrews v State of New York, 168 AD2d 474; Stanford v State of New York, 167 AD2d 381). Thus, the Courts finds that defendant was 100 percent liable for claimant's accident.
Upon filing of this Decision, the Court will set the matter down for a trial on the issue of damages as soon as practicable.


December 5, 2000
White Plains, New York

Judge of the Court of Claims

The claim of Raffaele Cerbone, claimant's husband, is derivative.
At trial, claimant testified that the State car was white, while the State employee described the car as blue. There was no dispute, however, that the State employee impacted with claimant. Accordingly, the Court did not find the discrepancy regarding the car's color to be significant.