New York State Court of Claims

New York State Court of Claims

CAGGIANO v. THE STATE OF NEW YORK, #2000-015-054, Claim No. 99286, Motion Nos. M-61325, CM-61619


A diagram contained in a Police Accident Report drawn by the officer from his own observations of tire tracks and road conditions at an accident scene may be considered in opposition to a summary judgment motion.

Case Information

BARBARA C. CAGGIANO, Individually, and as Executrix of the Estate of JOSEPH J. CAGGIANO, Deceased
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):
Claimant's attorney:
Edward J. Carroll, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 4, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant, and the cross-motion of the claimant, for summary judgment upon the liability issue are denied. The amended claim seeks to recover for the conscious pain and suffering and wrongful death of Joseph J. Caggiano resulting from an accident that occurred at approximately 3:05 a.m. on November 14, 1997 in the southbound lanes of Interstate 87 (Thruway) in the vicinity of milepost marker 72.7 in the Town of Plattekill, Ulster County, New York. Claimant alleges that the decedent was lawfully operating his 1978 Chevrolet pickup truck in a southerly direction upon the Thruway when it was caused to slide as the result of ice which had accumulated on the roadway, resulting in serious physical injuries to the claimant which led or contributed to his death on November 26, 1997. The amended claim and bill of particulars contain various allegations of negligence on the part of the defendants, the only two of which claimant pursues upon the motion and cross-motion being that a State Trooper patrolling the Thruway prior to the accident should have reported the dangerous condition of the road to the appropriate State agencies and that employees of the New York State Thruway Authority failed to properly salt, sand or plow the roadway despite actual or constructive notice of its dangerous condition. Discovery is complete and the claim is scheduled for trial on October 19, 2000.

In support of the motion, the defendants argue that the claimant is unable, as a matter of law, to establish a prima facie negligence cause of action with respect to this unwitnessed single car accident. The motion is supported, in pertinent part, by: a copy of the deposition testimony of investigating State Trooper Robert Turner; a copy of the police accident report prepared by Trooper Turner; the affidavit of Trooper Turner; the affidavit of investigating State Trooper Conard Cousins; a copy of the deposition testimony of William Hermance, Jr., a Maintenance Supervisor employed by the Thruway Authority; the affidavit of Seth J. Hendrick, an Assistant Traffic Supervisor with the Thruway Authority and an alleged expert in accident reconstruction. The motion is opposed, and the cross-motion supported, in pertinent part, by: affidavits from Licensed Engineer and Registered Architect James T. Kelly, Jr., claimant's retained expert; copies of the depositions of William Hermance, Jr., and Barbara C. Caggiano; and a certified weather summary recorded at City Hall in Kingston, New York during the month of November, 1997.

The defendants argue that the sworn statements of the two investigating troopers establish that although there was a light covering of accumulated precipitation on the Thruway where the accident took place the driving traction leading up to the location of the accident was good. The defendant further argues that the statements establish that the tire tracks of the decedent's vehicle commencing a considerable distance north of the accident scene, led from the driving lane gradually into the passing lane thereafter continuing in a veering, gradual manner from the passing lane onto the shoulder and finally into the guard rail. The officers state that the tire tracks did not indicate any wheel locking, skidding or spinning nor any apparent attempts at braking. The defendants further rely upon the fact that Thruway Authority salt trucks, as well as supervisor Hermance, had physically patrolled the involved portions of the Thruway in the hours before the accident and had not determined that there was a need to salt, sand or plow. Based upon those circumstances, and the purported inability of the claimant to produce any evidence in admissible form that the decedent's vehicle in fact skidded on an icy surface, defense counsel asks the Court to accept as a matter of law the opinions of the two investigating troopers and the defendant's retained expert that the accident was most likely caused by the decedent falling asleep at the wheel and gradually leaving the travel portion of the highway rather than a lack of proper preparation or a failure to timely salt or sand on the part of Thruway Authority employees.

Claimant contends that the description of the accident given by the decedent raises, at the very least, a triable issue of fact as to whether his vehicle skidded upon an icy condition on the highway. Counsel argues that the testimony of Mr. Hermance establishes that he had notice of an impending storm at 2:00 p.m. on November 13, 1997 and that despite that storm, which concluded at 2:00 a.m November 14, 1997, the Thruway in the vicinity of the accident was not plowed, salted or sanded until 4:49 a.m. on the morning of the 14th. Claimant avers that the weather reports and the entries made by Trooper Turner in his accident report establish that the condition of the Thruway was icy and that the Thruway Authority had actual or constructive notice of that condition through the patrols made by both its salt truck and Mr. Hermance. Additionally, it is contended that Trooper Turner should have reported the icy conditions as a result of his patrols which commenced at 11:00 p.m. on November 13, 1997. Given those factors, claimant contends that the Court should, as a matter of law, accept the opinion of her expert to the effect that the Thruway Authority failed to properly and timely salt and sand the roadway where the decedent's accident occurred thereby causing the hazardous condition which resulted in the decedent's automobile sliding off the roadway. Additionally, claimant's counsel argues that the testimony of Mrs. Caggiano as to the decedent's sleep pattern in the hours prior to the accident should lead to a determination that he was not likely to have fallen asleep at the wheel of his vehicle.

The Thruway Authority is under an obligation to maintain the Thruway in a reasonably safe condition, although it is not an insurer of those who travel upon it (Friedman v State of New York, 67 NY2d 721). With respect to claims such as the one presently before the Court, the Third Department set forth the applicable legal standard in the case of Valentino v State of New York, 62 AD2d 1086, 1087, 1088:
It is well settled that mere proof that an accident was caused by an automobile skidding on an icy State highway does not alone establish negligence on the part of the State. 'In cases such as this, the pertinent question is not whether snow or ice has been permitted to accumulate on the highway, but whether the State has exercised reasonable diligence to cure the situation (Cohen v City of New York, 204 NY 424; La Tournerie v State of New York, 1 AD2d 734; Quigley v State of New York, 281 App Div 185, affd 308 NY 846).' (Tromblee v State of New York , 52 AD2d 666, 667). To hold the State liable there must be a clear demonstration that, with knowledge of the existence of a dangerous condition, the State failed to remedy it.
In order to prevail, claimant will have to establish by a preponderance of the evidence that the decedent skidded upon an icy condition existing due to the negligence of the State, rather than that his own poor driving caused the accident (Hobbs v State of New York, 55 AD2d 710). Claimant will have to establish an icy condition of which the State had actual or constructive notice sufficiently in advance of the accident as to have been able to correct the condition. A delay in sanding or salting for a period of two and one-half to four hours after receiving notice of the icy condition (Citta v State of New York, 35 AD2d 288) is sufficient. Notice may be established by evidence of the existence of an icy condition together with proof that Department of Transportation or Thruway Authority employees patrolled the road in the hours before the accident (Slaughter v State of New York, 238 AD2d 770).

With the rules of liability established, the issue becomes whether claimant or defendants have established a right to summary judgment as a matter of law. In Zuckerman v City of New York, 49 NY2d 557, 562, the Court of Appeals described the principles applicable to the determination of motions for summary judgment as follows:
We recently restated the principles applicable to the disposition of motions for summary judgment in Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068: 'To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in its favor (CPLR 3212, subd. (b)), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd. (b)). Normally if the opponent is to succeed in defeating a summary judgment motion he, too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form (e.g., Phillips v Kantor & Co., 31 NY2d 307; Indig v Finkelstein, 23 NY2d 728; also CPLR 3212, subd. (f)).' We have repeatedly held that one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient.
In moving for summary judgment, the defendant has the initial burden of submitting proof in evidentiary form "negating all triable issues of fact in conclusively warranting judgment in its favor as a matter of law" (Hirsh v Bert's Bikes & Sports, 227 AD2d 956, 957). Once the defendant makes that prima facie demonstration the burden shifts to the claimant to introduce proof in evidentiary form creating triable issues of fact upon the liability question (Gomes v Courtesy Bus Co., 251 AD2d 625). In a death case such as this, the claimant is not held to as high a degree of proof as is ordinarily the case since the decedent is not available to describe the occurrence (Noseworthy v City of New York, 298 NY 76, 80). There "must, however, be some showing of negligence before that lesser standard of proof can be invoked" because if there is "absolutely no showing of facts from which negligence may be inferred, the Noseworthy rule is inapplicable" (Mildner v Wagner, 89 AD2d 638, 639). In the case of Ferraro v Cinelli, 193 AD2d 409, the Appellate Division stated that:
[n]egligence cases by their very nature do not usually lend themselves to summary judgment (Ugarriza v Schmieder, 46 NY2d 471, 474 ); that in a wrongful death action, such as this, circumstantial evidence may be afforded a greater degree of weight than in cases where there are eyewitnesses to the occurrence (Horne v Metropolitan Tr. Auth., 82 AD2d 909, 910, citing Noseworthy v City of New York, 298 NY 76); and that the possibility that an accident may have been caused by factors other than the defendant's negligence does not mandate a conclusion that the plaintiff had failed to make out a prima facie case.
Courts are reluctant to grant summary judgment dismissing a wrongful death action and for that reason preclude a defendant from using conversations which are not admissible under the Dead Man's Statute to support the motion (Walsh v Town of Cheektowaga, 237 AD2d 947, 948). Such evidence may, however, be used to defeat a summary judgment motion (Lancaster v 46 NYL Partners, 228 AD2d 133). Finally, issues of credibility may not be determined upon a summary judgment motion as that relief "should be denied when the Court has doubt (except as to damages) concerning whether a material and triable issue of fact exists" (Kretschmann v Bd of Educ. of Corning Painted Post School Dist., ____ AD2d ____, 708 NYS2d 812).

The decedent was born on July 13, 1928, was married to the claimant on the date of the accident, and was retired from his employment with the City of New York. Claimant testified at her deposition that she and decedent were married on January 23, 1976 and resided together in Saugerties, New York. Aside from diabetes, which was being successfully treated, the decedent was in excellent physical health. According to the claimant the decedent occasionally took trips via the Thruway to New York City in order to visit friends who worked at the fish market and concluded their shifts at approximately 4:00 a.m. or 5:00 a.m.
Claimant did not learn of the accident until a friend drove the decedent home from the hospital, arriving at approximately 5:00 p.m. on November 14, 1997. At that juncture, the decedent related to claimant that the weather was clear when he entered the Thruway at the Saugerties Interchange but that the conditions began to change as he drove southbound around New Paltz. Claimant testified that the decedent described the accident as follows: Q. What did he tell you?
A. He told me he had the Thruway accident. Do you want me to explain at this point what he told me?
MR. ARONSON: Yes. Sure. Tell me what he said.

MR. CARROLL: In substance what he said to you.
MR. ARONSON: Everything he said to you.
A. He said he got to New Paltz and there was ice and he slid on the ice. Lost control. Hit the guardrail two times. Saw what he thought was smoke, or fire at the front of the truck and he jumped out of the truck. When he jumped out, when he hit the ground there was either a ravine, or a hill and he rolled down. And that's where he sustained a lot of his injuries. His body was a mess of red, purple, black. There was nothing on his torso practically except black, red and blue. His head had lacerations. His arms. His leg. He was very badly injured.
Q. Now do you know, did he advise you whether or not he lost consciousness at any time before he got out of his vehicle?

A. No. He was conscience [sic] the whole time because he vividly recalled what I'm just telling you. He remembers it being freezing.
William Hermance, Jr., testified that he had been employed by the Thruway Authority for approximately twenty-five years and was a Maintenance Supervisor in the Newburgh section at the time of this incident. On November 13, 1997, Mr. Hermance was working a 6:30 a.m. to 3:00 p.m. shift when at approximately 2:00 p.m. his supervisor advised him of an impending storm and requested that he report back to work at 11:00 p.m. that evening in order to oversee the Maintenance Department's response to the storm. Mr. Hermance did so and called in other employees to be available to load and operate the three salt trucks available for maintaining his assigned portion of the Thruway. Mr. Hermance testified that Thruway Authority records maintained at his station indicated that weather conditions during the first shift on November 14 (midnight to 7:00 a.m.) were "rain, sleet mix, 28 degrees". The subsection of the Thruway at which this accident occurred had one salt-spreader assigned to it during the first shift of November 14 and, in fact, that vehicle patrolled the area in the hours prior to the accident, although it did not spread salt. The Thruway Authority records indicated that the first salting in the area occurred at 2:54 a.m. on November 14, and involved only certain bridges located some distance from the accident scene. The next salting did not occur until 4:48 a.m., almost an hour and a half after the accident. Mr. Hermance testified that he personally traveled north and south upon his assigned areas of the Thruway twice prior to the accident, with his last trip occurring at approximately 2:00 a.m.

Trooper Turner testified that he had been employed as a New York State Trooper for sixteen and a half years and was assigned from 1984 until the time of the accident to the State Police substation in Newburgh, New York. Trooper Turner was trained in vehicular accident investigation and on November 14, 1997 was assigned to patrol the Thruway from mile marker 58, approximately two miles south of Newburgh, to mile marker 76 in the vicinity of New Paltz. Trooper Turner reported to work at 11:00 p.m on November 13, 1997 and commenced to patrol the Thruway. He noted the weather conditions as intermittent sleet and snow which ceased at approximately 2:00 a.m. In the course of his patrols he observed that there were parts of the Thruway where the pavement was clear and portions which were covered with sleet. Trooper Turner stated that he observed Thruway Authority trucks salting the Thruway prior to the accident.

At approximately 3:05 a.m., Trooper Turner was traveling in his patrol vehicle with Trooper Cousins in a northerly direction upon the Thruway when he observed a pickup truck in the center mall against a guard rail. The pavement in the area was lightly covered with sleet but Trooper Turner's vehicle had no problem with traction. The troopers executed a U-turn and proceeded to the accident scene where Trooper Turner made a visual observation of substantial property damage to the front of the truck with steam rising from the radiator. The decedent was conscious and seated in the operator's seat with a bruise upon his forehead. When queried as to how the accident happened the decedent advised that his truck had "spun out" and he pointed out to the troopers the point in the roadway where that event occurred. An ambulance arrived to transport the decedent for medical attention.

Trooper Turner testified that the established procedure for dealing with storm conditions was that patrolling troopers would notify their dispatchers if the travel portions of the Thruway needed maintenance due to inclement weather and the dispatchers would then contact Thruway Authority maintenance crews. Trooper Turner made no report to his dispatcher of a dangerous condition prior to the accident giving rise to this claim. He testified that he could tell that the Thruway pavement had been salted prior to the collision and he described the decedent's tire tracks as follows:
Q. For the record can you describe those markings proceeding in the southerly direction just north of the accident scene?

A. We saw tire tracks leading from the right hand lane. The driving lane. Gradually going into the left hand lane, passing lane. It's a two-way highway that section. Then gradually going off to the left shoulder into the guard rails. Center guard rails.

Q. At the location where you observed those markings was the pavement dry? Was it slippery? Was it ice covered?

A. It was slightly covered I know with snow. Slightly covered.
Trooper Turner prepared a police accident report as the result of his investigation and a preliminary issue in determining the motion and cross-motion is the extent to which the entries in that accident report may be considered. "A police accident report made by a police officer who is not an eyewitness containing hearsay statements regarding the ultimate issues of fact may not be admitted into evidence for the purpose of establishing the cause of the accident in question" (Kajoshaj v Greenspan, 88 AD2d 538, 539). Consequently, the portions of a police accident report which constitute hearsay may not be considered in opposition to a summary judgment motion (Hoffman v Eastern Long Island Transp. Ent., Inc., 266 AD2d 509; Bendik v Dybowski, 227 AD2d 228). However, portions of a police accident report containing diagrams based upon the police officer's observations at the scene, and not on statements made to him by others, are admissible (Heiney v Pattillo, 76 AD2d 855, 857). Such a diagram prepared by a state trooper from his personal observations, when coupled with other circumstantial evidence, constitutes competent evidence sufficient to raise a triable issue of fact (Exantus v Town of Ossining, 266 AD2d 502). Moreover, when the admissible portions of the police accident report contain conflicting accounts summary judgment is not available (Aetna Cas.& Sur. Co. v Island Transp. Corp., 233 AD2d 157).

The accident report prepared by Trooper Turner contains a diagram setting forth the path of the decedent's vehicle from the time that it was in the travel lane until it collided with the guiderail. In his affidavit of May 22, 2000, Trooper Turner attempts to qualify the matter depicted in the diagram but goes on to state that the diagram is consistent with the visual observations that he made at the accident scene. This statement is consistent with Trooper Turner's deposition testimony that the decedent described to him what had occurred and showed him the markings on the road where the vehicle had traveled which, according to the officer, were readily visible. The diagram depicts a more abrupt lane change by the decedent's vehicle than that described in Trooper Turner's later testimony, and the sworn statement by Trooper Cousins, that the decedent's vehicle gradually traveled from the passing lane to the driving lane and into the guiderail without any indication of skidding. Additionally, the police accident report described the roadway surface condition at the scene as "snow/ice" and the weather as "sleet/hail/freezing rain". That portion of the report reserved for entering any of several listed contributing factors to an accident do not indicate either that the decedent operator fell asleep or was unconscious. This despite the fact that codes relating to these particular potential contributory causes were listed on the form and available in coded form for use in completing the report. Trooper Turner did, in fact, indicate the presence of certain other human contributing factors to the accident.

In the Court's view, neither party has carried its burden of establishing entitlement to judgment as a matter of law. The record presents triable issues of fact and credibility, the most obvious being the precise manner in which the accident occurred. Did the decedent fall asleep at the wheel gradually proceeding from the travel portion of the road into the guardrail or did he suddenly come upon an icy condition which caused him to lose control of his vehicle and slide off the travel surface? Defendants rely upon the observations of the two investigating troopers to establish the former, while claimant relies upon the accident report, descriptions of the accident given by the decedent as well as circumstantial evidence to establish the latter. Defendants contend that the decedent's descriptions of the accident are hearsay, will be precluded at trial, and cannot form the basis for defeating the motion or granting the cross-motion.

Assuming for the sake of argument that the defendant had established facts sufficient to state a prima facie case, the claimant in opposing the motion is entitled to have the facts construed in his favor and receive the benefit of all reasonable inferences (Rizzo v Lincoln Diner Corp., 215 AD2d 546). In a wrongful death action circumstantial evidence may form the basis of proof sufficient to raise a triable issue of fact (Ferguson v Abrams, 129 AD2d 524). A party opposing a summary judgment motion may also rely upon evidence which may be excludable at trial, such as hearsay and statements or testimony prohibited by the Dead Man's Statute, provided a reasonable excuse is proffered for the failure to present such evidence in admissible form (Baker v City of Elmira, ____ AD2d ____, 707 NYS2d 513; Josephson v Crane Club, 264 AD2d 359).

The diagram and observations as to the weather and road conditions contained in the police accident report together with circumstantial evidence provided by the claimant lead the Court to find the existence of triable issues of fact. For instance, Trooper Turner testified in his deposition that he had observed evidence at the scene indicating the area had been sanded or salted although Thruway Authority records show that the area in which the accident occurred had not been sanded or salted prior to the accident. In addition, the rather severe damage noted by Trooper Turner and described by him as being limited to only the front portion of the decedent's vehicle is consistent with the diagram prepared at the scene and decidedly less compatible with the long, gradual course described by Turner and Trooper Cousins in their affidavits and deposition testimony. Inconsistencies and conflicts in the proof as well as the presence of credibility issues require the benefit of a full trial.

While not available to the claimant in support of the cross-motion, the testimony of Trooper Turner and Barbara Caggiano that the decedent reported that he slid on ice or "spun out", losing control of his vehicle, may be considered in opposition to the defendant's summary judgment motion although potentially inadmissible as hearsay at trial. The fact that the declarant is now deceased and unable to testify personally appears to satisfy the requirement that a valid excuse be shown prior to considering otherwise inadmissible evidence for this narrow and limited purpose.

Finally, the record suggests that the decedent's statement to Trooper Turner relating the cause of the accident could arguably come within the spontaneous declaration exception to the hearsay rule (see, Taft v New York City Trans. Auth., 193 AD2d 503). In the case of People v Edwards, 47 NY2d 493, 496, 497, the Court of Appeals described the excited utterance exception as follows:
One of the better-known exceptions to the injunction against the reception of hearsay testimony permits the introduction of a spontaneous declaration or excited utterance made contemporaneously or immediately after a startling event which asserts the circumstances of that occasion as observed by the declarant (see, People v Caviness, 38 NY2d 227, 231-232; People v Marks, 6 NY2d 67, 71-72, cert den, 362 US 612; Fisch, New York Evidence (2d ed.) § 1000). Underlying this exception is the assumption that a person under the influence of the excitement precipitated by an external startling event will lack the reflective capacity essential for fabrication and, accordingly any utterance he makes will be spontaneous and trustworthy (but see Hutchins & Slesinger, Some Observations on the Law of Evidence: Spontaneous Exclamations, 28 Col. L. Rev. 432, 437). Since the utterance is made as a direct result of sensory perception during that brief period when considerations of self-interest cannot be immediately brought to bear, the declaration may be admitted into evidence as expressing the true belief of the declarant as to the facts observed (People v Marks, supra; Richardson, Evidence 10th ed. Prince), § 281).
The fact that the statement in question is given in response to a question posed by the Officer investigating the vehicular accident does not "detract from the spontaneity of the utterance" (People v Gonzalez, 170 AD2d 620, 621). There is simply no fixed time limit in which the declaration has to have been made (Saturno v Yanow, 58 AD2d 968). Thus, when a declarant is emotionally traumatized by an event, a statement made in response to a questions some two to two-and-one-half hours after the incident has been held admissible under the excited utterance exception (People v Brooks, 71 NY2d 877). It is the condition of the declarant at the time the statement is made that must be considered by the Court. An excited utterance, when coupled with other circumstantial evidence, may be sufficient to defeat a summary judgment motion (Taft v New York City Trans. Auth., 193 AD2d 503).

Here, the decedent made his statement to Trooper Turner immediately after having been involved in a startling accident. Given that the "Rules of evidence should be guardedly and cautiously applied on an application for summary judgment" (Phillips v Kantor & Co., 31 NY2d 307, 311, 312) and that summary judgment should be denied where a key fact is dependent upon certain evidence the admissibility of which at trial is arguable (Gallo Painting. v Aetna Ins. Co., 49 AD2d 746; see, Siegel, NY Prac § 281, at 443 [3d ed]) the Court finds that the totality of the evidence is such as to raise triable issues of fact and credibility requiring the resolution of this matter at trial.

August 4, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
1. Notice of motion dated March 8, 2000;
  1. Affirmation of Saul Aronson dated March 8, 2000, with exhibits;
  2. Notice of cross-motion dated April 26, 2000;
  3. Affirmation of Edward J. Carroll dated April 26, 2000, with exhibits;
  4. Affidavit of James T. Kelly, Jr., sworn to April 26, 2000;
  5. Affirmation in opposition to the cross-motion of Saul Aronson dated May 12, 2000, with exhibits;
  6. Affidavit of Seth J. Hendrick sworn to May 11, 2000;
  7. Affidavit of Conard Cousins sworn to May 4, 2000;
  8. Reply affirmation of Edward J. Carroll dated May 17, 2000, with exhibits;
  9. Reply affidavit of James T. Kelly, Jr., sworn to May 17, 2000;
  10. Sur-reply affidavit of Saul Aronson dated May 23, 2000;
  11. Affidavit of Robert Turner sworn to May 23, 2000;
  12. Sur-reply affirmation of Edward J. Carroll dated May 30, 2000.