New York State Court of Claims

New York State Court of Claims

HORVATH v. THE STATE OF NEW YORK, #2000-010-083, Claim No. 91381


Claimant sought damages for injuries he sustained on July 11, 1994 when he was driving his motorcycle westbound on Route 6N in the Hamlet of Mahopac, Town of Carmel., Putnam County and collided with a car that was backing out of the angled parking area located on the south side of 6N. Claimant alleged that angled parking was not appropriate at this location because the width of the roadway necessitated that a driver cross over the center dividing line to back out of a parking space. Claimant further argued that the New York State Department of Transportation was aware of the dangers posed by the angled parking, yet failed to prohibit it. The Court found defendant, claimant, and the driver of the car each 1/3 liable for the accident.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
By: Raymond Belair, Esq. Andrew Leder, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Victor D'Angelo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 2, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries he sustained on July 11, 1994 when he was driving his motorcycle westbound on Route 6N in the Hamlet of Mahopac, Town of Carmel, Putnam County and collided with a car that was backing out of the angled parking area located on the south side of 6N. Claimant alleges that angled parking was not appropriate at this location because the width of the roadway necessitated that a driver cross over the center dividing line to back out of a parking space. Claimant further contends that the New York State Department of Transportation ("DOT") was aware of the dangers posed by the angled parking, yet failed to prohibit it. Claimant argued that defendant's failure was the proximate cause of his accident. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

The area of the accident is Mahopac's business district. The posted speed limit is 30 mph. Route 6N has one eastbound and one westbound lane separated by a double yellow line. The eastbound lane is 12 feet wide and has diagonal parking on the south side of the road, although there are no lines indicating designated parking stalls. The westbound lane is 11 feet wide and no parking is permitted on the north side of the road. There are a number of commercial establishments on the south side of the road and the Mahopac Plaza Shopping Center is located on the north side of the road. The most easterly point of Route 6N intersects with Route 6. At the intersection, a westbound motorist faces a traffic light with a steady green arrow, over the right lane, toward Route 6N. Route 6 veers left in a southwesterly direction.

Claimant, who was 32 years old at the time of the accident, testified that he has driven motorcycles since he was 18 years old and has driven minibikes since he was five. On July 11, 1994, shortly after 1:00 p.m., claimant was driving his four month old Kawasaki Ninja motorcycle, which was a sport model design necessitating that the driver lean forward to grip the handlebars with his head lowered. Claimant left his place of employment at Ridgeview Autobody and proceeded southbound on Route 6 toward Mahopac Autopaint. When he reached the intersection of Route 6N and Route 6, he noticed several cars stopped at the traffic light, so he decided to take advantage of the steady green arrow toward Route 6N. He planned to reenter Route 6 farther south, by turning left onto a road connecting 6N and 6. As a lifelong resident of Mahopac and an employee of the autobody shop since he was 13, claimant was very familiar with the roads and the parking configuration on Route 6N.

Claimant estimated that he was traveling at a speed of approximately 25 to 30 mph as he proceeded westbound on 6N. Claimant testified that, when he entered 6N, he was in first gear and then increased his speed. He noted that there were no cars ahead in his lane.

As claimant approached Sycamore Road, which crosses Route 6N just before the Mahopac Plaza, he observed the rear of an automobile, approximately 60 feet away, backing out from the diagonally parked cars. Within seconds, claimant realized that the car was going to cross the double yellow line. According to claimant, he could not maneuver around the car nor turn into the shopping plaza. Claimant did not sound his horn nor apply his front brakes. Rather, he "immediately let off the throttle;" applied his rear brakes; and laid the motorcycle on its side (T:839).[1] The motorcycle went into a skid and his next recollection is of hitting the car. On cross-examination, claimant conceded it was best to engage both the front and rear brakes. Claimant maintained, however, that, had he used the front brakes, he could have tumbled over the handlebars and that, by engaging only the rear brakes, he believed he had better control going into the slide.

The driver of the car, Lee Rose, testified that he was parked on the south side of 6N in front of the Mahopac Deli. Rose testified that, because parking stalls were not delineated by pavement markings and due to the angle and size of the car parked to his right, Rose parked at a slightly perpendicular angle. According to Rose, the cars parked on either side of him were larger than his car. Rose testified that he looked east, west, and then east again, before backing out of the parking area. He had a clear unobstructed view to the east and observed cars waiting at the traffic light. Rose intended to back out and then travel easterly.

Rose proceeded at less than five mph as he looked to the west. He then heard the sound of a motorcycle and turned his head east. Rose testified that he had not completely cleared the parking space and that only his rear wheels had crossed the double yellow dividing line. Rose observed claimant's motorcycle, still erect, but in the process of sliding down toward the car. Rose estimated that the motorcycle was at a distance of 60 feet. According to Rose, within one to three seconds, the motorcycle hit the driver's door and quarter panel.

After the collision, Rose exited his car, looked at the damage and went into the deli to telephone for an ambulance. He left his keys in the car. He never moved his car before the police arrived and he never observed anyone else move his car. Contrary to Rose's testimony regarding the position of his car at the time of impact, photographs taken by the police show practically the entire Rose vehicle in the westbound lane. The front left tire was in the middle of the double yellow line and the remaining portion of the car was in the westbound lane (Exs. 46A, 46B, 46C, 46F, 46G, 46H, 46I, 46J, 46K, 46X). Despite this photographic evidence and the testimony of Edward Binns, an eyewitness, and the testimony of the responding Police Officer, Mark Graser, Rose maintained that the photographs did not accurately represent the position of his vehicle at the time of impact, although he could not account for any movement of his vehicle after the accident.[2]

Edward Binns, who was driving his van on Route 6N witnessed the accident. Binns testified that he was slightly west of the exit to Mahopac Plaza when he first observed claimant traveling in the opposite direction. On the record plans for 6N (Ex. 62), Binns marked the position of his car and claimant's motorcycle when Binns first saw claimant east of the intersection at the Mahopac Bank building. Shortly after this observation, Binns noticed that claimant's position on his motorcycle moved into an upright stance. Binns kept claimant under observation. The two passed near Sycamore Road. Binns estimated that he was traveling at a speed of 20 to 25 mph on 6N. He could not estimate claimant's speed, although it was faster than Binns. After Binns passed claimant, Binns heard the sounds of screeching tires. He looked into his rearview mirror and observed a car stopped in the westbound lane. He saw claimant's motorcycle fishtail and go down onto the pavement. The motorcycle struck the car toward the front and claimant hit the back end of the driver's door. Binns testified that the police photographs accurately depicted the position of Rose's car in the westbound lane at the point of impact (Exs. 46A, 46B, 46K, 46R).

Town of Carmel Police Officer Mark Graser testified that he responded to the accident scene. He observed the position of the Rose vehicle; requested that photographs be taken; took measurements; and completed a Police Accident Report. There was an 84 foot motorcycle skid mark that began on the west side of Sycamore Road and ended approximately 20 feet before the Rose vehicle. The Rose car was positioned as depicted in exhibits 46B, 46I, mostly in the westbound lane. Graser testified that since 1977, he has responded to approximately 50 accidents that have involved a vehicle backing out from the angled parking area on Route 6N.

Michael G. Mignogna, DOT's regional traffic engineer from 1977 to 1995 for the area encompassing this accident, testified that DOT had embraced the opinion that diagonal parking should be eliminated on 6N (Exs. 29-30). In 1978, DOT granted the Town a work permit for improvements on 6N.[3] A series of letters had been exchanged between the Town and DOT regarding the modifications to be included in the construction project. Mignogna's letter dated May 24, 1977 to the Town Supervisor states, "[t]his diagonal parking area, as we all are aware, has been a very sensitive item; however, from a traffic safety standpoint, the ultimate objective should be the removal of the diagonal parking. *** Additionally, I want to stress the importance of continually monitoring the diagonal parking and its impact to the occurrence of accidents. If the accident history continues to be high, all responsible agencies should act to remove the diagonal parking and establish parallel parking" (Ex. 29). The permit was issued to the Town to install concrete curb sidewalks, asphalt paving, pavement markings,[4]
(Id. at 439).
signs and lighting on 6N. Parallel parking was eliminated on the north side and the center dividing line was shifted north. Mignogna was not aware of any safety studies done between 1978 and 1983.

In 1983, DOT issued a Notice of Order dated December 9, 1983 that repealed an existing order which permitted angled parking on the south side of Route 6N (Ex. 36). Pursuant to the 1983 order, parallel parking would be permitted on the south side and all parking would be prohibited on the north side. By letter dated December 19, 1983, Mignogna advised the Supervisor of the Town of Carmel that, in regard to the 1983 order, DOT's maintenance department would install the necessary signs.

Although the 1983 order was not repealed, it was never enforced because of opposition from the Town stemming from the commercial establishments along 6N. Mignogna was not aware of any studies conducted after 1983 which indicated that the dangers posed by diagonal parking no longer existed. Mignogna testified that it was State policy not to remove parking if there was community opposition, unless there was an overriding safety reason. The State acknowledged the importance of monitoring the angled parking and its impact on the number of accidents (Ex. 29). Mignogna conceded that DOT has the authority to enforce the 1983 order. In response to an inquiry by State Senator Mary Goodhue in a letter dated August 7, 1984, Albert Dickson, DOT Regional Director, wrote:

It is widely known in the Traffic Engineering field that diagonal parking creates an accident problem far in excess of any other parking schemes. No matter how cautious people are in backing from a diagonal space, they are still required to back into the traveling stream. In addition, because of the numerous differentials in vehicle size, motorists engaging in diagonal parking maneuvers often cannot see nor be seen by the through traffic.

We have recently completed another investigation in this area. Upon request of Mr. Othmer, Town of Carmel Supervisor, we again have not implemented our proposals. The entire situation is dormant and we will not take any action until some resolution is received from the Town of Carmel.

(Ex. 42). Mignogna stated that DOT's position was that angled parking was not acceptable and that it was preferable to have pavement markings delineating parking spaces. Nonetheless, diagonal parking was not eliminated and pavement markings were never added.

On June 8, 1994, a reconstruction project on Route 6N between Cherry Lane and the intersection was completed. The project, which covered the area of the accident, included resurfacing and a reconfiguration of the travel lanes and parking area. The center dividing line was moved north to widen the eastbound lane so that angled parking could be accommodated. There was 30 feet from the center line to the south curb which allowed for a 12 foot eastbound travel lane and provided 18 feet for angled parking. The westbound travel lane was 11 feet and there was three and a half feet from the edge line to the curb.

Claimant's accident reconstructionist, Dennis Toaspern, examined claimant's motorcycle. He classified the damage as light, noting that the motorcycle remained structurally sound, and concluded that claimant had been traveling at a low rate of speed (Exs. 46A, 46I). He estimated that claimant's speed was 10 to 12 mph at impact. Toaspern explained that, at a higher speed, the motorcycle would tend to go under the car and that there was no indication of damage to the lower part of Rose's car. Toaspern also used the police photographs to place the objects at the scene and calculated claimant's speed based upon, inter alia, the skid mark's length and location, and a formula, based upon varying drag factors at different intervals of the accident. He further maintained that, even if claimant had been traveling at the 30 mph speed limit, the accident was not avoidable.

Toaspern opined that claimant's use of only the rear brakes was not negligent.[5] According to Toaspern, it is the usual practice in urban situations to apply only the rear brakes. Toaspern explained that by using only the rear brakes, the driver can decelerate while continuing to maneuver the motorcycle. Toaspern further stated that once the rear brakes are applied, it is difficult to apply the front brakes and such conduct would most likely result in a sudden stop, causing the motorcycle to tumble and the rider to be propelled over the handlebars. Toaspern testified that, while applying both brakes at the same time would result in a quick stop, it presumes a non-emergency situation.

In Toaspern's opinion, claimant could not have turned into the shopping plaza to avoid the accident because of a narrow entrance, high curb, and parked cars. Toaspern stated that claimant's use of his horn would have had no effect because horns are notoriously quiet on a motorcycle. He further stated that sounding the horn requires the driver to use the strength of his hand and that efforts to avoid an accident would be better placed elsewhere. Toaspern opined that, Rose was forced to cross the double yellow line because he had to pull out perpendicularly and his view was blocked by the larger car parked to his east.[6]

Samuel Hochstein, a professional engineer, also offered expert testimony on behalf of claimant. He opined that the angled parking was a cause of the accident. He further maintained that the absence of pavement markings delineating parking stalls was a departure from good engineering practice because it allowed vehicles to park at different angles and hindered sight distances. He explained that a motorist would have to see through an adjacent vehicle and pull three quarters of the way out of the parking space before having adequate sight distances in both directions. Hochstein testified that a car parked at a 90 degree angle required 44.5 feet of space from the curb to the center line and the road was not wide enough to accommodate angled parking. Rather, the width of the eastbound lane was insufficient to enable a vehicle to back out of the parking area without crossing the double yellow line into westbound traffic.

Hochstein maintained that the 1978 improvements did not remedy the dangers posed by angled parking and that angled parking should have continued to be monitored and was not.[7] The failure to enforce the 1983 order rescinding angled parking was, in his view, another departure from good engineering practice. Hochstein conceded that, in busy business districts, a driver should exercise caution and obey the speed limit.

Stephen Coulon, defendant's accident reconstructionist, calculated claimant's speed by applying the same scientific formula as claimant's accident reconstructionist. However, for the slide, Coulon used a .9 drag factor for claimant, rather than for the motorcycle and this resulted in a significantly higher rate of speed in Coulon's equation. Coulon concluded that claimant's speed was more than 40 mph. On cross-examination, Coulon conceded that the drag factor of .9 may have been slightly high because there was testimony that claimant had tumbled rather than slid for 20 feet before impact. In calculating the .5 drag factor for tumbling, the result would be a speed of 37.28 mph.

Coulon maintained that, based upon the formula, it was not possible for claimant to have been traveling at 25 to 30 mph. Coulon explained that, had claimant been traveling at a speed of 30 mph and applied only his rear brakes, he would have skidded to a complete stop within 75 to 85 feet. It was undisputed however, that claimant had skidded 84 feet on the motorcycle and another 20 feet off the motorcycle, for a distance of 104 feet. Coulon reached this conclusion using a 3.5 drag factor. Then, using a speed of 25 mph and a drag factor of .4, Coulon figured that claimant would have only skidded 52 feet. Thus, Coulon concluded that, had claimant been traveling at a speed of 25 or 30 mph, the accident would not have occurred. Coulon further testified that, if claimant had been traveling at 30 mph and applied both the front and rear brakes, the drag factor would increase to .8 and claimant would have skidded only 37 ½ feet. Coulon opined that it was not physically possible for claimant to have been traveling at 25 or 30 mph and to have skidded 84 feet.

Coulon concluded that claimant was traveling at an inappropriate rate of speed and that this speed was a competent producing cause of the accident. Coulon also testified that claimant's failure to use his horn was a departure from good practice and that, contrary to the testimony of claimant's accident reconstructionist, any warning sound was better than none at all. Coulon opined that the proper method to stop a motorcycle was to apply both front and rear brakes. In contrast to claimant's accident reconstructionist, Coulon testified that the front brakes were unstable if used alone and only lock at low speeds. Coulon maintained that if claimant had sufficient time to apply his rear brakes, he had sufficient time to apply his front brakes and should have.

Coulon was extensively questioned about perception/reaction time and the short distance in which claimant had to react. The evidence reveals that claimant did in fact react to the movement of Rose's car. Thus, the issue becomes whether claimant's reaction was appropriate. When challenged on cross-examination, Coulon denied awareness of studies finding that in fluid situations, a majority of motorcycle riders do not use front brakes. In Coulon's view, the fact that a number of people only use rear brakes does not establish the propriety of such conduct; rather it accounts for a number of accidents.

The deposition testimony of William Fitzpatrick, who has been employed as an engineer at DOT since 1969, was received into evidence. From 1987 to 1995, Fitzpatrick was the Assistant Regional Traffic Engineer for Region 8 which includes the area at issue. Since 1995, he has held the position of Regional Traffic Engineer. He was not aware of any policy wherein the concerns of the town's merchants could outweigh safety concerns. He conceded that vehicular accidents always have a potential for personal injury.

The deposition testimony of Jeffrey Wickeri, a civil engineer with DOT, was also received into evidence. Wickeri had been employed by DOT since 1966, and since 1979, he had been supervisor of the Highway Work Permit Unit. Wickeri testified that defendant did not need the approval of a town, a municipality, or a group of merchants, prior to implementing a safer parking configuration; however, the State always tried to consider such concerns in an attempt to reach an acceptable arrangement. Ultimately, if the State felt that the parking situation was dangerous, it could institute a safer parking configuration (Ex. 66, p. 56).

It is well settled that the State had a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (see, Gomez v New York State Thruway Auth., 73 NY2d 724; Freidman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579; Zalewski v State of New York, 53 AD2d 781). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on a State 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).

It is also well settled that, in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision unless the study was plainly inadequate or there was no reasonable basis for its plan (see, Friedman v State of New York, supra; Weiss v Fote, supra). "[S]omething more than a mere choice between conflicting opinions of experts is required before the State or one of its subdivisions may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public" (Weiss v Fote, supra at 588).

In the instant case, defendant clearly knew of the dangers posed by angled parking and had the authority to enforce its own 1983 order prohibiting angled parking, yet failed to do so apparently because of the opposition from the Town merchants. The danger created by the inadequate width of the roadway was compounded by the absence of pavement markings delineating parking stalls, as it enabled vehicles to park at an angle greater than 45 degrees. The absence of pavement markings was an invitation to vehicles to park as they did on the day in issue, east and west of the Rose vehicle. Defendant's failure was a contributing cause of the accident as it set the stage for its occurrence (see, Marren v State of New York, 142 AD2d 717 [State breached its duty to keep roadway reasonably safe by its delay in installing a traffic device where the State was aware of dangers posed necessitating traffic device]). Specifically, the road was not wide enough to enable a vehicle to safely back out of the parking area without crossing over the double yellow line. Additionally, the failure to delineate parking stalls exacerbated the dangers posed by angled parking because it permitted a condition to occur which necessitated Rose to back out even farther over the double yellow line due to the parking positions of the vehicles on either side of his car. Thus, the Court apportions one third liability to defendant.

Rose and claimant, however, were not without fault. While the roadway configuration was the cause for Rose to back over the double yellow line, it did not necessitate that Rose proceed as far as he did into the westbound lane. Rather, the photographic evidence indicates that Rose appeared to have intended to continue westerly.[8] Even if Rose had planned to travel easterly, as he maintained, he was bound to see that which could have been observed by a proper use of his senses (see, Doyle v State of New York, 271 AD2d 394). The Court finds that Rose was negligent in his driving and contributed one third to the happening of the accident.

Claimant, an experienced motorcyclist who was very familiar with the area, was also negligent. The Court finds that defendant's accident reconstructionist effectively demonstrated that claimant could not have been traveling at the posted speed limit of 30 mph and that, had he been, claimant could have stopped before hitting the Rose car. Claimant took a detour onto 6N to avoid waiting for the light on Route 6, even though a few blocks later he intended to return to Route 6. This evidences haste and impatience and accounts for his failure to observe that which should have been seen with a proper use of his senses. It further corroborates defendant's accident reconstructionist's conclusions that claimant was traveling at a higher rate of speed than the posted limit. The Court concludes that claimant was traveling at an unsafe rate of speed for the business district and especially during lunchtime. Claimant also failed to sound his horn and applied only his rear brakes. The expert testimony established that applying the front and rear brakes simultaneously would have been more effective. In sum, the Court finds that claimant's manner of driving was negligent and contributed one third to the cause of his 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.

All motions, not heretofore ruled upon, are DENIED.


January 2, 2001
White Plains, New York

Judge of the Court of Claims

The letter "T" refers to the trial transcript.
Rose is presently the defendant in a pending Supreme Court action brought by claimant based on this accident.
The configuration of the road in 1994 was different from that which existed prior to 1978; therefore the Court did not consider any evidence as to safety of the road prior to 1978.
Defendant argued that, pursuant to this work permit, the Town was responsible for the pavement markings. This Court, following the decision of the Appellate Division, Second Department, in Horvath v Rose, 261 AD2d 438 rejects such argument. In reversing the Supreme Court's denial of the Town's motion for summary judgment to dismiss the complaint and awarding summary judgment to the Town, the Second Department stated:
Here, while the record contains correspondence indicating that the Town asked the New York State Department of Transportation (hereinafter the DOT) not to implement a change from angled to parallel parking in 1984, the ultimate responsibility for determining the parking design on Route 6N remained with New York State. In addition, a 1987 letter from the DOT advising the Town that it could apply for a work permit to repaint the angle pavement marking along Route 6N does not indicate that the State ceded authority over the parking design to the Town, or that the Town assumed a duty over the maintenance of angled parking on Route 6N. Under these circumstances, the Town cannot be held liable on the theory that it implemented and maintained an unsafe parking design on Route 6N (citations omitted)

Interestingly, in Burton v State of New York, Ct Cl, June 25, 1999, Lebous, J., Claim No. 87979, Toaspern testified as defendant's expert regarding another motorcycle accident. In that case, Toaspern opined that a contributing cause of the accident was claimant's "over braking on the rear brake as opposed to using the recommended front and rear braking technique which maximizes stopping distance and eliminates the possibility of locking a wheel resulting in an uncontrollable skid."
The Court notes that Toaspern's opinion fails to take into account Rose's testimony that he had an unobstructed view to the east, all the way to the intersection. Moreover, Rose would have cleared the vehicle to the east before crossing the double yellow line.
Hochstein testified that, based upon his review of a printout, there were 98 accidents between 1988 to 1992 between mile markers 1041 to 1044. The printout was not received into evidence, nor was it established that the distance between the mile markers was totally within the commercial area at issue here. Accordingly, the Court did not consider that aspect of Hochstein's testimony.
The Court did not find Rose's testimony regarding the position of his vehicle to be convincing. Rather, the Court found that the photographic evidence, coupled with the testimony of the responding police officer and an eyewitness, detracted form Rose's credibility.