New York State Court of Claims

New York State Court of Claims

LEE v. STATE OF NEW YORK, #2001-018-105, Claim No. 100254


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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: PATRICK B. SARDINO, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 28, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages from the State of New York for injuries he sustained when driving west on Old Seneca Turnpike on December 10, 1998, his vehicle skidded on ice, left the roadway and struck a tree. Claimant asserts that the State's liability arises from the negligence of a New York State Trooper who responded to a prior accident that morning on the same roadway and failed to request the dispatch of highway maintenance crews to sand and/or salt the icy road. The trial of this matter was bifurcated and this decision addresses liability only.

Old Seneca Turnpike is a roadway owned and maintained by Onondaga County. It is a fairly straight but hilly two-lane road which runs east and west. By all accounts December 10, 1998, was a very cold, clear and sunny morning. At approximately 7:15 a.m., Mrs. Elinor Abrams, the first accident victim, picked up her grandson and drove approximately five to eight minutes at 35 miles per hour before turning east onto Old Seneca Turnpike. After driving for another few minutes and reaching a point approximately one-quarter to one-half mile past the Gully Road intersection at the crest of a small hill, she lost control of her vehicle and skidded into a gully in front of a house located at 1650 Old Seneca Turnpike. Mrs. Abrams's husband was called by cell phone to come and assist.

Prior to Mr. Abrams arrival at the scene, Joan Sanders also drove east on Old Seneca Turnpike. When she neared the house at 1650 Old Seneca Turnpike, she saw a vehicle off the roadway with an elderly woman driver. Ms. Sanders called 911 to report the incident. The call was received at the 911 center at 7:32 a.m. Ms. Sanders pulled into the Skaneateles Transfer Station driveway just east of the accident to assist Mrs. Abrams. When Ms. Sanders began to get out of her vehicle her foot slipped out from beneath her, and she noted that the driveway was totally ice covered. When Ms. Sanders saw Mr. Abrams arrive, she left the scene and continued traveling east on Old Seneca Turnpike. She noticed that the road had intermittent icy patches which were larger in areas shaded by the sun.

When Mr. Abrams arrived at his wife's accident scene, he noted that the road was very slippery. Mr. Abrams picked up his wife and grandson, took his grandson to school and his wife home and he called Roger Patrick, a tow truck operator, to retrieve his wife's vehicle. Then he returned to the scene.

The 911 center received a second call regarding Mrs. Abrams's accident at 7:46 a.m., from Patricia Sager, the roommate of Ms. Suellen Vallely,
both residents of 1650 Old Seneca Turnpike.[1] Ms. Vallely left her residence at 7:30 a.m., and noticed a vehicle in the culvert in front of her home. After she "kind of jogged"[2] over to the car to see if anyone needed help, she requested her roommate call 911. Ms. Vallely testified that as she left for work, with the sun still low in the sky, the road gleamed white and sparkled with the frost unlike she had seen before. She noticed that the road to the east, 1000 feet,[3] was glistening. She had no trouble traveling west to work that morning and did not slip on any ice nor did she see any.
The 911 center dispatched police to the scene of Mrs. Abrams's accident at 7:33 a..m. New York State Trooper Peter J. Burns[4]
and Onondaga County Sheriff's Deputy Donald Weeks, both responded at 7:36 a.m. Deputy Weeks cancelled his response at the request of Trooper Burns, who arrived at the scene at 7:49 a.m. To reach the scene, Trooper Burns traveled south on Chapman Road turning right to travel only approximately two-tenths of a mile west on Old Seneca Turnpike, away from the eventual locale of claimant's accident. The New York State Police Field Manual requires troopers to take action to alleviate temporary traffic hazards such as icy roadways. The trooper testified that he did not recall encountering icy conditions on his way to the scene, because if he had he would have called for a truck to salt or sand the roadway, even if it did not contribute to an accident.
Upon Trooper Burns arrival at the scene, the tow truck driver, Mr. Patrick, was connecting the Abrams's vehicle to his truck. Trooper Burns parked and exited his vehicle to speak with Mr. Patrick. As Trooper Burns was walking along the roadway, Mr. Abrams returned, and was directed by the trooper to park his vehicle off the eastbound lane. According to Trooper Burns, neither Mr. Abrams or any other vehicle driving by had any difficulty on Old Seneca Turnpike at the site of Mrs. Abrams's accident. Mr. Abrams did not notice the road conditions during this second trip to the accident scene.

After being advised by Mr. Abrams that he had dropped his wife at home, Trooper Burns left the accident scene and drove to the Abrams's residence at 37 State Street, Skaneateles, again heading west.
He arrived at the Abrams's house at 8:19 a.m., and interviewed Mrs. Abrams who was lying on her living room floor due to back pain. The trooper called an ambulance and recalled staying until the ambulance left. At trial, Trooper Burns estimated that he had investigated approximately 100 accidents during his career; and that in investigating a one-car accident, he would observe and secure the accident scene, determine the condition of the people involved, note the weather and road conditions, and obtain witness information. Trooper Burns returned to the accident scene to verify the details provided by Mrs. Abrams, such as mile markers, etc., for purposes of the accident report.[5] Mrs. Abrams told Trooper Burns that she believed she had skidded on "black ice." Trooper Burns did not observe any icy conditions as he traveled back to the scene and testified at his deposition that he recalled the roadway was wet on his return.[6] He "cleared" or ended the accident investigation at 8:34 a.m.[7] The trooper's report, a compilation of Mrs. Abrams's statement and his observations, indicated unsafe speed and slippery road conditions were factors in the accident.
The 911 records indicate that Trooper Burns was called to another matter at 8:35 a.m.; he arrived at Marcellus High School at 8:51 a.m. Trooper Burns did not recall the route he took to the high school; however, the most direct route would have taken him past the scene of claimant's accident approximately 20 minutes before it occurred. During cross-examination, claimant raised issue of the credibility of Trooper Burns' recollection of the timing of events. The ambulance dispatch log indicated that the ambulance left the Abrams's home at 8:45 a.m., which, based upon Trooper Burns' recollection, meant he left the Abrams's home 10 minutes after being called to Marcellus High School. The Abrams testified that they recalled Trooper Burns being at their house when the ambulance arrived at 8:28 a.m.[8]
In light of the Court's findings, these discrepancies are not relevant, and the Court attributes them to a lack of recall due to the passage of time and the relatively insignificant aspect of the Abrams accident.
Claimant's accident occurred at approximately 9:00 a.m. that morning.[9]
Claimant left his home in Syracuse around 8:45 a.m., and began heading for Cayuga Community College in Auburn, driving his 1995 Camaro and wearing his seatbelt. He traveled his usual route, driving west on Old Seneca Turnpike. Claimant testified that he recalled the day was clear and very cold, and that the roads appeared dry. Just as claimant passed the intersection of Townline Road, he crested a hill, saw the icy road and immediately lost control of his vehicle. Claimant cannot recall anything from that time until he awoke in the hospital three weeks later.
Kathleen O'Donnell was driving east on Old Seneca Turnpike when she came upon claimant's accident. As she approached a Niagara Mohawk substation, she saw a Camaro off of the north side of the roadway. The car was facing north and steaming or smoking. Ms. O'Donnell pulled her vehicle off the road and called 911. The call was received at the 911 center at 9:04 a.m. Ms. O'Donnell exited her vehicle and remembered that she slipped a little as she crossed the road. Other motorists stopped and directed Ms. O'Donnell to stay away from the accident vehicle. Ms. O'Donnell made a second call to the 911 center to advise that a person was in the accident vehicle and injured, and no rescue personnel had yet arrived at the scene. She did not mention the roads being icy during either 911 call. While Ms. O'Donnell was on the telephone, the claimant awoke and began screaming.

Christopher Logue was also called to testify. He testified that he was a paramedic who responded to claimant's accident, and that he was employed by Mercy Flight as a flight paramedic. He too had driven to work that morning on Old Seneca Turnpike heading east and recalled that he did not encounter any icy road conditions that morning until he was east of Chapman Road, well beyond the site of the Abrams's accident scene but before the location of claimant's accident, when his vehicle began to slide a little. Mr. Logue did not lose control of his vehicle;
he was traveling less than the posted 55 miles per hour speed limit. He testified that he only noticed the icy conditions after his vehicle slid; he described the road as being icy but not "glare ice" as he passed claimant's accident site between 8:30 and 8:45 a.m. This is the only patch of ice he noticed going into work that morning. Mr. Logue arrived at his employment, the Mercy Flight Hangar, at approximately 9:00 a.m.
Shortly thereafter, a request was received over the scanner at the Mercy Flight Hangar that additional assistance was needed at a motor vehicle accident on Old Seneca Turnpike, and Mr. Logue responded about 9:15 a.m. He traveled west on Old Seneca Turnpike, and at that time described the road conditions as glare ice unlike when he drove that stretch of road earlier. When he arrived at the scene he testified he had to shuffle his feet as he moved along the roadway so he would not fall because of the ice. Mr. Logue was asked to be in charge of claimant's care. It took approximately two hours to extricate claimant from his vehicle which was wrapped around a tree.

Stephen Knapp, the Emergency Medical Services Operations Manager for the Village of Marcellus, was also dispatched to claimant's accident at 9:06 a.m. He arrived at the scene at 9:11 a.m. At that time he recalled that the road surface was dry until he reached a knoll approximately one-eighth of a mile from claimant's accident and noticed a white haze on the road. Mr. Knapp's vehicle actually slid past the accident scene, and when he exited his vehicle the road was so slippery that he called the 911 dispatcher to advise other emergency vehicles of the conditions.

Onondaga County Sheriff's Deputy Eric Horn, who investigated the accident, arrived at the scene at 10:30 a.m. and noticed that ice was only on the edge of the road at that time. However, in his report Deputy Horn noted that the slippery road conditions were a contributing factor to the accident. He testified that he noticed "yaw" marks on the road surface, which he defined as a mark "created when a vehicle is side slipping and the tires are still rotating." The tires rotating indicated to Deputy Horn that the brakes were not being applied. According to Deputy Horn, other factors, including speed, could have also contributed to the accident; however, his findings were inconclusive.

The Supervisor of the Onondaga County Highway Department located in Marcellus, Terrance Sherman, also testified for claimant. He traveled Old Seneca Turnpike that morning on his way to work and found that at 5:00 a.m., the road was dry. No one from his department was assigned to snowplowing that day because the roads were clear, but due to the cold Mr. Sherman patrolled the roads for snow and ice, from 7:00 a.m. until 9:30 a.m. On cross-examination, Mr. Sherman testified that black ice or a skim of ice can be intermittent and variable and can appear quickly and evaporate quickly depending upon the temperature and sun location. Mr. Sherman found frost and black ice on Lee-Mulroy Road and sent a salt truck there which was later dispatched to Route 20 at approximately 7:45 a.m. because of icy conditions found in the shady areas. The driver returned to the Marcellus Highway Department barn at approximately 8:15 a.m. According to Mr. Sherman, if Trooper Burns had notified dispatch of icy road conditions at the Abrams's accident scene, a truck would have been dispatched to Old Seneca Turnpike. He estimated it would have taken the driver 10 to 15 minutes to reach Old Seneca Turnpike from Lee-Mulroy Road and 15 to 20 minutes if it left from the Highway Department barn. It would then take approximately five to ten minutes to salt the areas of Old Seneca Turnpike where both accidents took place, approximately nine-tenths of a mile. If contacted, a truck would have been dispatched even though Mr. Sherman had not inspected the roadway. Furthermore, he said that the drivers are instructed to salt icy roads when they find them without specific direction. In Mr. Sherman's opinion, salt would clear black ice, a skim layer, within 10 to 15 minutes. This testimony was elicited by claimant to prove that if Trooper Burns had made the proper notification, then presumably, a truck would have salted the road where claimant had his accident before claimant got there.

Claimant called Edward L. DeMay, a retired State Trooper as an expert. The defense objected to the timeliness of the expert's disclosure by claimant. The Court's scheduling order required expert disclosure to be completed by January 1, 2000, Mr. DeMay was not disclosed until August 4, 2000 and the trial was commenced on November 14, 2000. The Court allowed the witness to testify subject to a motion to strike to be submitted with the post trial memos. Based upon CPLR 3101(d) and the cases cited in claimant's brief, the court will not strike the witness's testimony since Mr. DeMay was not available as an expert until after the Court ordered disclosure date. Furthermore, the defendant had notice more than three months before trial and was not prejudiced.

Claimant objected to the State calling the tow truck operator, Roger Patrick, as he was not on the State's witness list. The Court allowed Mr. Patrick to testify but has given his testimony little weight due to his obvious bias against claimant's attorneys.
We begin with the fact that the State waived its blanket protection of sovereign immunity for the negligence of its employees with the enactment of Court of Claims Act §8. The State can now be held liable for the negligent acts and omissions of its employees in accordance with the same rules of law applicable to any private individual or corporation. (Court of Claims Act §8)

This waiver of immunity does not permit liability to be imposed in all circumstances, as it does not relieve the claimant from the burden of proving that defendant's conduct was in fact negligent. However, there are still certain exceptions to the State's surrender of its common-law tort immunity.
One of these exceptions to the waiver of immunity involves the distinction between activities in which the State is engaged that are considered proprietary and those functions which are purely governmental. (
Miller v State of New York, 62 NY2d 506) The State, in the role of landowner or mental health or medical services provider, typically performs a proprietary function, which exposes the State to liability to the same extent as any private individual tortfeasor. (Riss v City of New York, 22 NY2d 579; Johnson v New York City Health & Hosp., Corp., 246 Ad2d 88) Yet those functions of the State which are uniquely governmental, such as police and fire protection, remain cloaked with immunity, unless the injured party was owed a special duty. (Balsam v Delma Engineering Corp., 90 NY2d 966; De Long v County of Erie, 60 NY2d 296; Florence v Goldberg, 44 NY2d 189) The distinction between governmental and proprietary is not always clearly an either/or proposition. For some functions, the State performs a dual role which demands that the alleged wrong be carefully evaluated to determine where on the "continuum of responsibility" it falls. (Miller v State of New York, supra at 511-512) The reason immunity attaches to the performance of a governmental function is a recognition of the allocation of finite public resources for functions, such as police and fire protection, and acknowledges that the determination of the appropriation of such funds is better left to the executive and legislative branches of government rather than to juries and the courts. (Cuffy v City of New York, 69 NY2d 255)
Negligent actions of State employees may also be immune from liability where the alleged negligence arises from a discretionary decision; (
Tango v Tulevech, 61 NY2d 34) for instance, where after thorough analysis the State decides whether or not to make certain modifications to a roadway, (Weiss v Fote,7 NY2d 579) or after a review of the facts a prison official finds a claimant's conduct improper and takes disciplinary action. (Arteaga v State of New York, 72 NY2d 212) Such conduct, even if negligent will usually not result in liability to the State. At the opposite end of the spectrum are ministerial actions: actions which are required pursuant to a written rule or regulation, compelling a certain course of conduct. (Tango v Tulevech, supra; Lauer v City of New York, 95 NY2d 95) Ministerial actions negligently performed cast the State in liability for the tortious conduct of its employees, (i.e., Glowinski v Braun, 105 AD2d 1153 (retiring warrant by clerk, ministerial act); Onderdonk v State of New York,170 Misc 2d 155 (reporting child abuse to child protective unit of wrong county, ministerial act); Chrysler Credit Corp. v State of New York, 262 AD2d 768 (negligent processing of application for certificate of title)).
Any claim questioning the conduct of the police requires a careful analysis to identify the specific conduct alleged to be negligent and the capacity in which the action or inaction occurred in order to ascertain whether immunity attaches. Not every action of a police officer is protected by immunity. For instance, actions unrelated to police functions such as involvement in a traffic accident (
Novko v State of New York, 728 NYS2d 259), or assumption of a duty negligently performed, (Joy v City of Jamestown, 207 Misc 873) or where by taking action the officer creates a more dangerous situation (Weeks v City of New York, 181 Misc 2d 39) can expose the governmental employer to liability. However, the performance of those activities which are characteristic of police protection for the benefit of the general public are immune from liability. (Balsam v Delma Engineering Corp., 90 NY2d 966, supra; Bass v City of New York, 38 AD2d 407)
Here a close review of the "specific act or omission out of which the injury is claimed to have arisen and the capacity in which that act or failure to act occurred" leads this Court to the conclusion that Trooper Burns was acting in a governmental capacity. The injuries allegedly resulted from Trooper Burns' failure to notify the appropriate agency of the road conditions during an accident investigation, for which the trooper assumed the responsibility by cancelling the response of the Onondaga County Sheriff's deputy. The appropriateness of the police response, the investigation of an accident scene, and reporting the condition of a roadway are components of Trooper Burns' police activities, and classic examples of governmental function undertaken for the protection and safety of the general public. (
Balsam v Delma Engineering Corp., supra 90 NY2d at 967-968; Stilo v Nassau County, 122 AD2d 41, 43-44) A primary component of claimant's argument for liability calls into question the allocation of police resources, specifically, which police agency responded to the accident on a county roadway,[10] a determination of which governmental immunity is intended to prevent the courts and juries from undertaking. To provide the public with prompt police responses, potential tort liability should not dictate which police agency responds to a 911 dispatch.
If governmental immunity does not shield the State in this case, claimant still has the burden to show that the alleged culpable conduct is in fact negligent. Any determination of negligence begins with duty. To establish negligence it must be shown that the State breached more than the duty owed to the general public, there must be a breach of a duty running to claimant directly. (
Johnson v Jamaica Hosp., 62 NY2d 523; Pulka v Edelman, 40 NY2d 781; Palsgraf v Long Island Railroad, 248 NY 339) Despite claimant's efforts, he has failed to show that Trooper Burns owed a duty to him.
Claimant pointed to the requirement, based upon the New York State Police field manual, that upon discovering a hazardous condition on the roadway, Trooper Burns had a duty to report the hazard to the appropriate agency; a requirement that the defendant does not dispute. However, this duty is one owed to the public at large and not to claimant specifically. Such a general duty cannot form the basis for finding liability in this case against the State. Claimant never alleged a special duty, and none of the requirements for a special duty as set forth in
Cuffy v City of New York, supra at 260, have been met.
Claimant's expert, Mr. DeMay testified that a trooper is required to call for road maintenance when he or she observes icy road conditions. This testimony fails to establish this procedure as a ministerial or non-discretionary act since first the condition must exist at the trooper's location then there must be a judgment made that the condition is dangerous.

Nor did Trooper Burns assume a duty to protect claimant and the other motorists traveling on Old Seneca Turnpike that morning by accepting the 911 dispatcher's call to investigate the Abrams's accident and by having actual knowledge of the hazardous conditions. First, this Court does not find that Trooper Burns had actual notice that Old Seneca Turnpike was in a hazardous icy condition that morning. At around 7:30 a.m., the time of Mrs. Abrams's accident, and one-and-one-half hours prior to claimant's accident, witnesses testified not that the road was a sheet of ice as claimant argues, but that at most there were intermittent patches of ice in the shaded areas. Mrs. Abrams herself testified that she only "believed" that her vehicle slipped on black ice.
Ms. Vallely ran from her house to the Abrams vehicle without noting slippery conditions. She later described the road as sparkling with frost, not ice, and Ms. Sanders noted only that the roadway was icy in patches. Even Mr. Abrams did not notice that the road was icy upon his return to the scene of his wife's accident, which was at the same time that Trooper Burns first arrived there, after having only traveled two-tenths of a mile on Old Seneca Turnpike, away from claimant's accident location.
Trooper Burns, who is trained to observe the conditions of an accident scene, actually exited his vehicle and walked in the roadway, yet did not remember any condition which he deemed a traffic hazard. Between 8:30 and 8:45 a.m. Mr. Logue, the paramedic, testified that on his way to work he did not observe or encounter any icy conditions until he was east of Chapman Road, well beyond the site of the Abrams accident but before the location of claimant's accident. However, upon his return to the site after claimant's accident, he noted significantly different conditions. The testimony of Mr. Knapp, who was dispatched to claimant's accident from Emergency Medical Services, was consistent with Mr. Logue's that the road was clear until he reached about an eighth of a mile from claimant's accident where he encountered icy conditions. Even claimant's testimony indicated that the roads were clear until he encountered the icy patch which caused his accident. Since black ice can form and melt quickly, the evidence does not support a finding that at the time Trooper Burns arrived at the Abrams accident scene the roadway was in a hazardous icy condition.

The cases claimant relies upon to support a finding that Trooper Burns assumed a duty to claimant are distinguishable because the subsequent injuries suffered by the claimant or plaintiff in the cases cited occurred at the same location where the State Police had responded to a prior accident. Here, claimant seeks to have this Court hold the State liable for the response of the State Trooper to an accident scene a mile from claimant's accident, over an hour earlier, and by all witness accounts, with variable conditions.

Trooper Burns also did not assume a duty to claimant by investigating the Abrams's accident, so that by his failure to take action to alleviate the hazardous condition he affirmatively increased the potential for harm. Claimant argues that by preventing the Sheriff's deputy from responding to the Abrams's accident and taking notice of the dangerous condition, the trooper assumed the duty the deputy would have had, and by failing to act, the likelihood of harm increased. This theory assumes that the road was icy at the Abrams' accident scene when Trooper Burns arrived, a fact which this Court does not find, and further presumes that the deputy would have responded differently than the trooper to the Abrams' accident scene; a fact which is highly speculative and does not support a finding that the trooper's response instead of the deputy's increased the potential for harm. The cases claimant cites in support of this proposition involve very different factual situations from the case presented here. In
Ramundo v Town of Guilderland, 124 Misc 2d 83, the Court found the town liable for the police responding to an accident scene, exercising control over the scene, and then failing to remove the victim's face from a hot exhaust system. The Court found that the police inaction affirmatively caused a separate injury and their presence deterred others from acting. In Joy v City of Jamestown, 207 Misc 873 supra, a traffic control officer, although not required was provided by the city, and that officer then acted negligently resulting in a finding of liability. In Walsh v Town of Cheektowaga, 237 AD2d 947, the police took into custody an intoxicated person and left her near railroad tracks at 5:30 a.m. in the morning. The Court found that taking charge of a helpless individual and placing them in a more dangerous or equally dangerous situation subjects the one taking charge to liability.
Claimant also tries to establish the trooper's duty to claimant by asserting that similar to the proprietary duty the county owed to travelers as owner of the road, by Trooper Burns accepting the 911 dispatcher's call to respond to the accident on Old Seneca Turnpike that morning, directing that the deputy sheriff's response be cancelled and investigating the accident, he, in effect, took control of the road. Claimant relies on the case of
Drake v State of New York, 97 Misc 2d 1015, affirmed on opinion below, sub nom Madigan v State of New York, 73 AD2d 1031, lv. denied 49 NY2d 705, to support his position. However, under the facts of this case, claimant's reliance is misplaced. In Drake, Native Americans took control of State property known as Moss Lake campsite, which was bifurcated by a county road. The Native Americans, while on the State land, were shooting at drivers passing by on the county road. The Court found the State liable based upon its proprietary duty as owner of the campsite, but also found that the State was liable because through the actions of the State Troopers, the State took control of the county road. To reach this finding, the Court relied on the fact the State Troopers regularly patrolled and in fact, increased patrols on the county roadway, had advised local police officials that all incidents involving the Native Americans would be handled by the State Police, and had established roadblocks at this location; thereby assuming responsibility for the portion of the road which bisected the state park all of which resulted from the fact that the State owned the land on which the conflict was being waged. In this case, the State Trooper accepted the call to respond to the Abrams' accident and investigated the same. By doing so, the State Trooper did not take control of the roadway a mile away from the site of the accident. The illogical conclusion to such an argument would expose the State to liability for the condition of a roadway not owned by the State at a location other than the site of the accident being investigated, solely because the State Police accepted a call for assistance instead of a police agency under the auspices of the governmental entity that owns the roadway.
Claimant has failed to establish that defendant breached a duty owing to claimant directly. The duty owed was a general duty owed to the public at large. Claimant failed to prove that Trooper Burns had notice of a hazardous condition on the roadway at the time he responded to the scene of the Abrams's accident and thus there can be no liability. Furthermore, it is mere speculation that a Department of Transportation truck dispatched after a report of icy conditions, could salt the area and clear the ice in sufficient time to prevent claimant's accident. It is also speculation that the ice on which claimant lost control would have existed at the time the truck traversed the spot where claimant's accident occurred. Finally, even if negligence was established, liability would still not be imposed because Trooper Burns was performing a governmental function for which immunity applies.

The Court denies all motions made during or at the close of trial which have not previously been decided.

Based upon the foregoing, the claim is dismissed. LET JUDGMENT BE ENTERED ACCORDINGLY.

September 28, 2001
Syracuse, New York

Judge of the Court of Claims

[1]Ms. Vallely identified the voice of Patricia Sager on the 911 tape, Exhibit 3.
[2]All quotes are either from the trial tapes or from the Court's trial notes unless otherwise noted.
[3]Per Ms. Vallely's testimony regarding Exhibit #1 and as measured by the Court in accordance with its scale.
[4]At some time after December 10, 1998, Trooper Burns was promoted to Sergeant, however he will be referred to as Trooper Burns for purposes of this decision.
[5]Exhibit 8
[6]See Exhibit 15, page 22.
[7]See Exhibit 14
[8] See Exhibit 10.
[9]See Exhibit 2.
[10] Claimant argues that this case should be decided in accordance with the ruling in Crosland v New York City Transit Authority, 68 NY2d 165; however, Crosland does not call into question the allocation of public resources, and the Court of Appeals in Kircher v City of Jamestown, 74 NY2d 251, 254-255 made it clear that the key to its holding in Crosland was statutory, not applicable to this case.