New York State Court of Claims

New York State Court of Claims

D'AMATO v. THE STATE OF NEW YORK, #2001-019-001, Claim No. 98620


Susan D'Amato was severely injured as the result of an automobile accident on Aug. 26, 1996, while attempting a left turn with a green arrow at the intersection of State Route 110 and Broadway in Huntington, Suffolk County. After starting the turn, Mrs. D'Amato encountered a pedestrian and yielded the right-of-way, which exposed her to an oncoming vehicle traveling at more than twice the posted speed limit. The Court found the State created a dangerous condition by neglecting to install a fully protected left turn arrow and a lighting scheme that would have stopped both oncoming traffic and pedestrian traffic when a turn was being executed. In this bifurcated trial, the Court apportioned liability 60% to the driver of the speeding car; 20% to the State, and 20% to the Claimant.

Case Information

JOSEPH D'AMATO, Individually and as the Guardian of SUSAN D'AMATO
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:
CITAK & CITAK, ESQS.BY: Donald L. Citak, Esq., of counsel
Defendant's attorney:
BY: Denis J. McElligott, Assistant Attorney General of counsel
Third-party defendant's attorney:

Signature date:
January 16, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

This Claim is brought by Joseph D'Amato, the husband and legal guardian of Susan D'Amato who was injured as a result of an August 26, 1996, motor vehicle accident which occurred at the intersection of State Route 110 (hereinafter "Route 110") and Broadway, in the Town of Huntington, Suffolk County, New York, an intersection and roadway under the control of the New York State Department of Transportation (hereinafter "DOT"). The trial of this Claim, heard on May 23 and 24, 2000, was bifurcated and this Decision addresses the issue of liability only.

The relevant facts, as found by the Court after trial, are outlined below.

The manner in which this accident occurred went essentially unchallenged by the State. This collision occurred on August 26, 1996, at 5:40 P.M. on Route 110 (also known as New York Avenue) at its intersection with Broadway (to the east) and Railroad Avenue (to the west) in Huntington, Long Island, New York. At that time, a 1987 BMW 325-I, two-door convertible, was being operated by Jacob A. Giannelli in a northbound direction on Route 110. At the same time, Susan D'Amato was operating a 1991 Plymouth Acclaim, four-door sedan, in a southbound direction on Route 110 and was attempting to make a left-hand turn to proceed eastbound on Broadway. While making the turn, Mrs. D'Amato yielded the right-of-way to a pedestrian who was crossing Broadway from south to north in the crosswalk. The Giannelli vehicle and the D'Amato vehicle then collided within the intersection. As a result of the collision the D'Amato vehicle was deflected into a 1990 Chrysler New Yorker, four-door sedan, which was stopped in the center westbound lane of Broadway for a red traffic signal. Both Mr. Giannelli and Mrs. D'Amato were alone in their vehicles at the time of the accident and both were transported to the hospital by ambulance. Mrs. D'Amato sustained very severe and permanent injuries. After the accident, police investigators measured a single pre-impact skid mark from the Giannelli vehicle which was 85 feet long.

More specifically, as described by the testimony and the accident report of Claimant's expert, Route 110 is a multi-lane roadway which runs north and south. On the southbound approach to the intersection with Broadway and Railroad Avenue, Route 110 widens from two lanes of travel to four lanes, with the addition of left and right turn lanes. As one travels northbound on Route 110 to its intersection with Broadway and Railroad Avenue, there are two northbound through lanes and again a left and right turn lane. The posted speed limit in this area is 30 mph and is posted for northbound traffic approximately 650 feet south of the intersection.

Traffic at this intersection is controlled in all directions by colored globed traffic signals suspended above the intersection. At the beginning of the north/south travel sequences in each direction on Route 110, green left turn arrows are illuminated allowing a brief period of protection for left turning northbound and southbound vehicles. However, there is no red arrow signal prohibiting left turns after the green arrow signal terminates. Thus, northbound and southbound drivers turning left may do so, but must yield to through traffic coming in the opposite direction.

There are also traffic control devices mounted on poles at each corner of the intersection controlling pedestrians crossing Route 110, but only in an east/west direction. There are no dedicated pedestrian control signals for pedestrians crossing Broadway or Railroad Avenue in either a northbound or southbound direction. The movement of these pedestrians is regulated by the same signals which govern north/south vehicular traffic. Pedestrian controls are relevant here due to the presence of the Long Island Railroad commuter station on the southeast corner of this intersection which results in a heavy concentration of pedestrians in the area. Pedestrian traffic is most concentrated during the morning and evening rush hour periods, since commuter parking facility exists on all four corners of this intersection.

Most importantly in this case, there is a sight obstruction for northbound traffic approaching this intersection due to the steep grade of Route 110 on the south side of the intersection. The roadway at that location dips beneath a Long Island Railroad bridge which is located approximately 360 feet south of the center of this intersection. The roadway's elevation as it passes under the bridge is approximately 11 feet less than the crest of the roadway at the south edge of the intersection located approximately 310 feet north of the bridge. Consequently, at a point approximately 250 feet south of the intersection a northbound motorist cannot see into or through the intersection and a southbound motorist approaching the intersection or making a left-hand turn cannot see a vehicle which is more than 250 feet south of the intersection.

David Kaplan, a witness to this accident, was the operator of the second westbound vehicle in a line of traffic facing a red traffic signal on Broadway behind the 1990 Chrysler New Yorker. Mr. Kaplan testified that Mrs. D'Amato, while making her left-hand turn onto Broadway, paused across the northbound lanes of Route 110, to allow a pedestrian crossing Broadway from south to north to pass in front of her vehicle. While Kaplan testified that he looked away for a few seconds, his attention was again drawn back to the intersection when he heard a loud screech of brakes coming from the intersection in front of him. It appears that the D'Amato vehicle was just starting to move forward through the intersection again when the impact with the Giannelli vehicle occurred.

Based upon the collision analysis prepared by the Claimant's expert, John H. Meserve, of Northeastern Collision Analysis, the speed of the northbound Giannelli vehicle pre-braking and pre-impact was 64 mph or 34 mph over the posted speed limit. Accident reconstruction indicates a sight distance of approximately 250 feet, and a skidding distance of 85 feet leading to impact. The Giannelli vehicle traveled approximately 165 feet from the time the sight line was established until the brakes of that vehicle were actually applied. Meserve testified that at 64 mph the Giannelli vehicle was traveling nearly 94 feet per second and would have covered 165 feet in 1.75 seconds. Meserve testified that the impact speed of the Giannelli vehicle was 46 mph and taking into account the 85 feet of skid marks at the scene, he concluded that it would have taken Giannelli 1.1 seconds to decelerate from 64 mph to the 46 mph impact speed. He further opined that the collision occurred less than three seconds after the Giannelli vehicle came out of the dip under the railroad bridge and regained sight of the intersection. During that three-second period Mr. Giannelli would have had to perceive, react, and begin to take evasive action before the impact. Meserve concluded that at 64 mph the Giannelli vehicle's "impending impact zone", which is a function of the vehicle's speed, its stopping ability, and the driver's perception and reaction time, would be approximately 331 feet, or 81 feet more than the 250 feet of sight distance afforded at this intersection. Meserve concluded that had Giannelli been operating at 30 mph, the posted speed limit, the 250-foot sight line to the intersection would not have been problematic and he would have been able to bring his vehicle to a complete stop in less than half of that distance.

Meserve found three factors contributing to this tragic accident based upon his detailed analysis of the traffic control devices installed and operating on the date of this accident at this intersection. One, the Giannelli vehicle was traveling at an excessive rate of speed. Two, at the time the D'Amato vehicle entered the intersection she could not have seen the approaching BMW which was hidden due to the limited sight distance caused by the drop in the roadway under the railroad bridge. Three, the movement of the D'Amato vehicle through the left turn was delayed due to her yielding the right-of-way to a pedestrian as required by the Vehicle and Traffic Law. Meserve concluded that the primary cause of this collision was Giannelli recklessly operating his vehicle at a high rate of speed, during rush hour, in a commuter intense area with a significant view obstruction. However, Meserve concluded that a significant secondary cause to this collision was the combination of pedestrian/vehicle and vehicle/vehicle conflict within the intersection as a result of the traffic signal system in place. Meserve concluded that:
The lack of a fully protected left turn sequence for southbound traffic on Route 110, in concert with the lack of fully protected pedestrian crossings on the east and west sides of the intersection, creates conflict in the smooth flow of left turning southbound traffic, putting occupants of those vehicles at risk due to the view obstruction at the south side of the intersection. Left turns should not be permitted when green signals are displayed to opposing traffic, and pedestrian movement across the intersection should be prohibited when left turning traffic has a proper green arrow. Both vehicle-vehicle and vehicle-pedestrian conflicts would be eliminated by this simple change in the lighting system.
(Cl. Ex. 25).

The Claimant next called Thomas Oelerich, the DOT Regional Traffic Engineer in Charge of Region 10 which includes Suffolk County and the subject intersection. Mr. Oelerich's job responsibilities are to manage traffic and safety operations for the region including maintenance and installation of traffic signals at this particular intersection. This witness acknowledged that DOT received a letter from one Roberta Rosen dated September 7, 1990, "[r]equesting a
left-hand turn arrow be installed at New York Avenue heading north, turning west into Railroad Street." (Cl. Ex. 18, emphasis in original).

Before discussing the specific response to this particular complaint, Mr. Oelerich described the general policy and procedures of DOT regarding citizen complaints.
Oelerich testified that letter complaints are prioritized, acknowledged and then assigned to an investigator who collects the appropriate data and makes a study, as well as a traffic survey. Each investigator applies his/her own engineering judgment to determine what data is to be collected based upon the specifics of the case at hand. DOT then analyzes the results and makes a determination. Oelerich was clear that every complaint results in an investigation. The witness testified that the investigation records and results are kept in specific intersection files maintained by DOT.

Oelerich attempted to detail the DOT's responses to the Rosen complaint. According to Oelerich, once the Rosen letter was received, DOT would have looked to confirm Ms. Rosen's allegations of an increased accident rate at this intersection. To this end, DOT would have reviewed the State's preexisting accident surveillance system and annual reports. Mr. Oelerich acknowledged that this file consisted of a Collision Diagram dated February 22, 1991 indicated a left turn accident rate, both south and northbound, at two times higher than the accident rate in any other portion of the intersection (21 accidents versus 10 accidents). (Cl. Ex. 20A). Additionally, Oelerich reviewed the Vehicle Delay Study Data Sheet dated February 25, 1991. (Cl. Ex. 20B). Oelerich was reluctant to concede that no other documentation or studies of this intersection existed, only that they were not in the file. Nevertheless, Oelerich maintained that DOT "would never make a decision based on a collision diagram and delay study by itself...." (T., Vol. II, p 338).

However, Mr. Oelerich was unable to actually produce any documentation, other than the Collision Diagram and Vehicle Delay Study Data Sheet, of the decision-making process related to the Rosen investigation. This witness testified that supporting documentation, such as memoranda outlining DOT recommendations, remedial options to be considered and field investigations, are not necessarily documented. Furthermore, Oelerich acknowledged there was no indication that pedestrian traffic was considered, or if it was considered, that those considerations were recorded in any manner. Oelerich testified that the Rosen investigation ultimately led to DOT adding a left turn lane and protected left turn signal for northbound traffic turning left onto Railroad Avenue. DOT concluded that this action would clear northbound vehicles waiting to turn left onto Railroad Avenue, thereby improving visibility for southbound vehicles turning left onto Broadway of oncoming northbound traffic. (Cl. Ex. 21). The witness further testified that there was no record of any monitoring of this intersection after 1991.

At the close of the Claimant's case the State presented only one witness, Mr. Stanley Lechner, who is the claim and records access officer for DOT. The State offered various exhibits through Mr. Lechner in the form of photographs and photo logs showing the conditions of the intersection at about the time of this accident. (St. Exs. A1-A29).


It is well-settled that the State of New York has an absolute nondelegable duty to maintain its roadways in a reasonably safe condition and that failure to do so will result in liability to the State for injuries resulting from a breach of that duty. (
Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). Inherent in this duty is the obligation to construct, design, and maintain roadways in a reasonably safe condition taking into account such factors as existing traffic conditions, terrain and pedestrians. (Gutelle v City of New York, 55 NY2d 794). The State's duty extends to the design and maintenance of traffic control devices at intersections of the roadways under its control. (Wood v State of New York, 112 AD2d 612, 614). However, the mere occurrence of an accident on a State roadway does not confer liability since this duty does not have the effect of making the State an insurer of the safety of its roadways. (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 the State was negligent in its duty to maintain its roads and that such negligence was a proximate cause of the accident. (Bernstein v City of New York, 69 NY2d 1020). Additionally, the State must have had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition before liability will attach. (Rinaldi v State of New York, 49 AD2d 361).

Claimants assert the State was negligent in four respects: 1) by failing to provide an adequate protected left turn arrow for southbound traffic on Route 110; 2) by failing to provide any dedicated signals for pedestrians crossing Broadway; 3) by failing to construct, design and maintain this intersection given the steep grade and resulting sight obstruction; and 4) by failing to erect signs to warn motorists of the limited sight line.

The State relies upon the doctrine of qualified immunity which protects highway planning decisions that require expert judgment or the exercise of discretion, unless the attendant study was plainly inadequate or there was no reasonable basis for the plan. (
Friedman v State of New York, supra, 67 NY2d 271; Weiss v Fote, supra, 7 NY2d 579). In relying upon this defense, it is the State's burden initially to establish that the relevant decisions were "[t]he product of a deliberative decision-making process, of the type afforded immunity from judicial interference [citations omitted]." (Appelbaum v County of Sullivan, 222 AD2d 987, 989). As such, once the State is aware of dangerous traffic conditions at a particular location it must undertake remedial action to alleviate that danger. (Friedman v State of New York, supra, 67 NY2d, at 284). In so doing, the State must review the remedial modifications made at specific locations to be certain that the conditions previously brought to the State's attention have, in fact, been remedied. (Demesmin v Town of Islip, 147 AD2d 519). Failure to do so may, in fact, subject the State to further liability for any resulting injuries. (Olson v State of New York, 139 AD2d 713).

Initially, the Court finds that the failure to provide an adequately protected left-turn arrow, and the lack of any dedicated signals for pedestrians crossing Broadway, did create dangerous conditions and determines that the State was negligent in failing to provide such traffic control devices. The green left turn arrow that Mrs. D'Amato encountered invited her to commence her left turn. Once she started this turn, she was faced with a crossing pedestrian for which she was compelled to yield, thereby leaving her in the intersection without protection.[1]
The evidence showed that DOT visited this site in August of 1987, widening the pavement at the intersection and posting "No Turn on Red" signs for vehicles approaching from the south, west, and east. (Cl. Ex. 16). In addition, the lighting sequence of the traffic control devices controlling traffic and pedestrians in all four directions at this intersection was reviewed and revisited. Three years later, in 1990, DOT received the Rosen complaint. In 1991, the DOT completed the Rosen investigation and installed a left-turn arrow and lane for northbound traffic only. As a result of that study, DOT acknowledged that "[a] high incidence of southbound left turning vehicles colliding with northbound Route 110 vehicles."[2] (Cl. Ex. 21, emphasis added). This record clearly supports a finding of actual notice of these dangerous conditions.

Additionally, it is well-settled that highway improvement projects must be the result of an all-inclusive study. (17 NYCRR 271.1). As such, a finding of constructive notice of these dangerous conditions is also warranted in view of the 1987 and 1991 improvement projects from which, if done appropriately, should have alerted DOT to these dangerous conditions through its normal study and investigative process.

Qualified Immunity:
Without conceding the issue of notice, the State relies on the doctrine of qualified immunity. As previously indicated, in order for the State's argument to be successful, there must be proof that the relevant decisions were part of a deliberate decision-making process. (
Friedman v State of New York, supra, 67 NY2d 271). However, the Court finds no evidence that either the 1987 or 1991 improvements were the product of a deliberate decision-making process or that there was proper monitoring of traffic conditions thereafter. While it is clear that the work contemplated in the letter to Ms. Rosen was in fact done, Mr. Oelerich could find no record of any studies, plans, drawings, diagrams, writings, or other memos detailing the review and analysis of this situation, other than the Collision Diagram and Vehicle Delay Study Data Sheet, prior to adding the left-turn lane for northbound Route 110 traffic. In fact, Oelerich conceded that the decision-making process leading up to improvement work is not always documented and not always monitored after completion. (T. Vol. II, pp 343-344). Furthermore, Oelerich conceded that a Collision Diagram and Vehicle Delay Study Data Sheet are insufficient to support any informed determination. (T. Vol. II, p 338). Nor could Oelerich offer any follow-up studies, analysis, memorandums, or writings relating to this intersection after the improvements were made. In sum, there are no documents, no testimony, no traffic study, no notes or reports, no field observations to establish that DOT ever engaged in any study, let alone an adequate study, of the southbound left turning lane on Route 110 in relation to vehicle/vehicle conflict and/or vehicle/pedestrian conflict, or that the issue ultimately went any further than to appear in a blind carbon footnote to the regional office. As such, it is impossible to tell whether DOT considered the required Manual of Uniform Traffic Control Devices standards and guidelines, or for that matter any other controlling authority, prior to the 1987 and 1991 improvements.[3] Consequently, the State may not seek the protection of qualified immunity since there is a total failure of proof on the part of the State to show any deliberate decision-making process preceded the 1987 and 19991 improvements, or that any follow-up surveillance was ever done after implementing the same.

Causation & Culpability
As the parties are well aware, even with the State's actual and constructive notice of a dangerous condition at this location, the burden remains with the Claimant to prove by a preponderance of the evidence that said condition was a substantial factor in causing the accident and subsequent injuries. (
Bernstein v City of New York, supra, 67 NY2d 1020). Here, the Court finds that there were a number of substantial factors contributing to the instant accident. First and foremost is the conduct and operation of the Giannelli vehicle. Clearly, with the pedestrian and vehicular traffic conditions then and there existing, the operation of the Giannelli vehicle at more than twice the legal speed limit and in an area of severely limited visibility was, in fact, an accident waiting to happen. From the evidence presented at trial it is clear if the Giannelli vehicle had been traveling at the posted speed limit there would have been more than sufficient sight distance and reaction time available to Giannelli to bring his vehicle to a complete stop short of impact with Mrs. D'Amato. Furthermore, the testimony at trial also establishes that there was sufficient distance to the rear of the D'Amato vehicle through which Mr. Giannelli could have maneuvered his vehicle had the other factors of operation and control been more reasonable and prudent.

In the same vein, Mrs. D'Amato herself bears some responsibility for this accident, tragic as it may be. The record and the testimony of her husband reflect the fact that Mrs. D'Amato was fully familiar with this intersection having lived in the area for approximately 30
years and having traveled through this intersection on frequent occasions. As such, Mrs. D'Amato was fully familiar with the traffic control devices at this intersection, as well as the limited sight distance of the northbound traffic from the dip in the roadway which she would encounter on a left-hand turn.[4] Additionally, Mrs. D'Amato was surely aware of the pedestrian traffic at this intersection due to its proximity to the Long Island Railroad Huntington Station. The Court also finds that Mrs. D'Amato was fully familiar with the timing and sequence of the traffic control devices controlling pedestrian traffic at Route 110 with its intersection with Broadway.[5] Also, according to the testimony of the only eyewitness, Mr. Kaplan, Mrs. D'Amato had stopped her vehicle approximately 15 feet in front of the pedestrian. The facts at trial established that the northbound right-hand turn lane of Route 110 is approximately 9 feet wide and that the pedestrian walkway on Broadway sits east of the Route 110 intersection an additional 15 feet. Considering Mrs. D'Amato's vehicle was approximately 15 feet long there was sufficient room for Mrs. D'Amato to pull forward to both stop for a pedestrian in the crosswalk and clear both of the northbound through lanes of the intersection in order to avoid oncoming traffic. There is no question that her failure to do so constituted a tragic error on her part.

Be that as it may, the Court finds that the State's conduct and inaction was a substantial factor contributing to this accident. The Court finds that a more adequately protected left turn sequence with appropriate control of pedestrian traffic traveling north and south across Broadway could have reduced the risk southbound drivers faced when making a left-hand turn across the northbound lanes of Route 110. To do otherwise, and to allow minimally protected left-hand turns with no control of pedestrian traffic after inviting a vehicle into the intersection under the protection of a brief left-turn arrow, is to clearly bring left turning vehicles into contact with uncontrolled pedestrians thereby trapping those vehicles as targets for northbound through vehicles. On the facts presented in this case the Court believes that the Claimant has established that the State's negligence was a proximate cause of the accident and Claimants' injuries.

Based upon the foregoing, and under these circumstances, the Court finds Mr. Giannelli 60%
liable, Claimant Susan D'Amato 20% liable, and the State 20% liable for this accident and resulting injuries to Claimants Susan D'Amato and Joseph D'Amato.

The Court will set this matter down for trial on the issue of damages as soon as practicable. All other motions on which the Court may have previously reserved or which were not previously determined, are hereby denied.


January 16, 2001
Binghamton, New York

Judge of the Court of Claims

Vehicle & Traffic Law 1151.
This notation was on a blind carbon copy on the DOT's response to Ms. Rosen sent to the DOT's Division Director of Traffic Engineering and Safety in Albany.
17 NYCRR 271.1 states, in pertinent part, "[t]he need for a traffic control signal should be determined by comprehensive investigation of prevailing traffic conditions, physical characteristics, and expected traffic conditions at the location. A thorough study is also desirable to obtain data for the proper design and operation of the signal. The data should be evaluated as a whole and should include...the number of vehicles entering the intersection...pedestrian volumes..."

As such, the Court finds no evidence to indicate posted warning signs relative to the limited sight distance would have altered, in any manner, the actions of either Mr. Giannelli or Mrs. D'Amato. (Atkinson v County of Oneida, 59 NY2d 840, rearg denied, 60 NY2d 587).
Claimants seek the benefits of the Noseworthy doctrine. (Noseworthy v City of New York, 298 NY 76). The Court finds Noseworthy inapplicable since the State did not witness the accident, thus placing "[t]he parties were on an equal footing with respect to knowledge of the occurrence." (Lynn v. Lynn, 216 AD2d 194, 195).