Lori Cerbone, hereinafter claimant,
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
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
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
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 (
, 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
, 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 (
, 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
, 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 (
, 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.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.