New York State Court of Claims

New York State Court of Claims

FONTAINE v. THE STATE OF NEW YORK, #2001-029-078, Claim No. 95747


This claim for personal injury arose from a multi-vehicle automobile accident at the intersection of Route 9 and East Main Street in Wappingers Falls, New York on July 8, 1996 at about 8:53 am. The preponderance of the credible evidence compels a determination that the proximate cause of this collision was the conduct of the drivers.

Case Information

1 1.The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Finkelstein, Levine, Gittelsohn & PartnersBy: George M. Levy, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 27, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This claim for personal injury arose from a multi-vehicle automobile accident at the intersection of Route 9 and East Main Street in Wappingers Falls, New York on July 8, 1996 at about 8:53 am. The trial was bifurcated and this decision deals only with the issue of liability.

The traffic signal which controls the subject intersection is owned and maintained by the New York State Department of Transportation (hereinafter DOT) and normally operates in a red-yellow-green sequence. At the time of the accident, the signal was in flashing mode. Traffic proceeding on Route 9 faced a flashing yellow signal and traffic on East Main Street faced a flashing red signal.

Claimant posits two theories of State negligence: (1) the State was aware that this intersection contained a defective signal and negligently failed to correct it and (2) the State’s response, after receiving notice of a malfunction on July 8, 1996, was not reasonable and timely.

Claimant testified that on the morning of the accident she was driving north on Route 9 in her 1991 Acura, equipped with five-speed manual transmission and anti-lock brakes. Traffic on Route 9 was light and the roads were dry. The speed limit was 55 miles per hour (hereinafter MPH) until she reached the Village of Wappingers Falls, about a mile south of the accident, where the speed limit dropped to 40 MPH. She was traveling at the posted speed limit until she approached the Home Depot intersection[2], when she first saw the flashing yellow traffic signal at East Main Street. She then downshifted, reducing her speed to approximately 35 MPH, as she was aware this was not how the signal normally operated. As she approached the Home Depot intersection, she noticed a red passenger car to her left and slightly ahead of her in the center lane (driven by Frank Kuhlwein) traveling at approximately the same speed. When she was about five or six car lengths from the subject intersection, she touched her brakes lightly and the Kuhlwein vehicle remained in the same position relative to her vehicle. She did not see the white car driven by Anne Ponte[3], which was traveling on East Main Street, because the Kuhlwein vehicle was screening her view of the street. She first saw the Ponte vehicle when it was directly in front of her, about a car length away, at which time she applied the brakes with full force and blew her horn. The Kuhlwein vehicle struck the rear passenger side of the Ponte vehicle and claimant’s vehicle struck the front passenger side of the Ponte vehicle. After the collision, claimant’s vehicle and Ponte’s vehicle were forced to the right and came to rest in the entrance to the adjacent shopping plaza where her vehicle struck a dark colored BMW.

Anne Ponte, who was called by the State, testified that in July 1996 she had been working at the Home Depot on Route 9 in Wappingers Falls for about one month. On July 8, 1996 she arrived at the intersection of East Main Street and Route 9 between 8:45 am and 8:50 am and intended to follow her normal routine of traveling across Route 9 into the opposite parking lot. She had never seen the traffic signal at the subject intersection operating in the flashing mode; she treated the flashing red signal as a stop sign and came to a stop behind the stop line. When she looked north she could see past the New Hackensack Road intersection[4] and looking south she could see the Home Depot intersection. She claims she was stopped at the intersection for about ten minutes, looking at Route 9 in both directions, waiting for an opening in traffic.[5] She was driving a Chevrolet Cavalier with a five-speed manual transmission and was in second gear as she crossed the intersection. She had passed through five of the six lanes on Route 9 and was traveling at 10 to 15 MPH at the time she was struck by the two vehicles heading north on Route 9. She had not seen either vehicle that struck her vehicle.

Also called as a witness by the State was Emmett Hall who, on July 8, 1996, was employed by Triumph Auto Glass located at the subject intersection. Mr. Hall testified that at the time of the accident he was working in the southernmost garage bay (see Exh. 3). The garage doors were open and nothing was obstructing his view of northbound traffic on Route 9. He heard a car skidding and brakes screeching so he looked out of the garage and saw a woman driving a red Acura north on Route 9 about eight or nine car lengths from the intersection. The Acura was traveling about 50 MPH when he first saw it and it skidded through the intersection with smoke coming from its tires until it collided with the white (Ponte) vehicle. The Ponte car was traveling at less than 5 MPH when he saw it. The only other vehicle he remembers being involved in the accident was a BMW which was struck by either the Acura or the white car after they collided.

Mr. Hall does not recall seeing the Kuhlwein vehicle traveling on Route 9 northbound next to claimant’s vehicle or that it also struck the Ponte vehicle. Further, he testified that claimant’s vehicle was skidding. However, the investigating officer did not find any skid marks at the accident scene, claimant’s vehicle was equipped with anti-lock brakes and claimant testified she did not skid. Thus, Mr. Hall’s version of events is inconsistent with all other witnesses. Therefore, while we do not question his veracity, his observations are of limited probative value.

The State submitted the deposition transcripts of Frank Kuhlwein (Exh. H) and Gary Bolan[6] (Exh. L) into evidence. The testimony of both these witnesses was consistent with that of claimant. Both stated that Kuhlwein and claimant were next to each other proceeding north on Route 9 and the Ponte vehicle came across East Main Street and both the Kuhlwein vehicle and claimant’s vehicle struck the Ponte car. Kuhlwein testified that he was traveling below the posted speed limit, although he does not know how fast he was traveling at the time of the accident. Mr. Bolan was unable to estimate the speed of claimant’s or Kuhlwein’s vehicles.

Richard Bilodeau testified on behalf of the defendant. The witness has been a police officer since 1992 and a Wappingers Falls Police Officer since 1995. He is familiar with the subject intersection and confirmed the speed limit on Route 9 at that location was 40 MPH. On July 8, 1996 he was working the 7:00 am to 3:00 pm shift with an officer trainee. In the course of his duties, he arrived at the subject intersection at approximately 7:54 am and observed the traffic signal in flashing mode. After unsuccessfully attempting to reset the signal, he notified the police dispatcher to advise DOT of the malfunctioning signal and remained at the scene for about ten minutes to observe traffic. On other occasions and locations when a traffic light was malfunctioning, he had stayed and directed traffic where traffic volume or the possibility of an accident necessitated his presence. On July 8, 1996 he did not consider the location dangerous or requiring police presence. He returned to the subject intersection three times between 7:54 am and the time of the accident to see if the light had been repaired and if traffic flow required his intervention. Each time he observed light volume traffic moving smoothly and no traffic backups at the intersection. On each occasion he called dispatch to report the malfunctioning light and requested DOT be notified. He filled out the Police Accident Report which indicates the time of the accident as 8:53 am and he stated that this indicates the time he received the call to respond to an accident at the subject intersection.

The Wappingers Falls Police Communications Log for July 8, 1996 (Exh. 1) notes that at 7:54 am Officer Bilodeau reported a traffic light malfunction at the intersection of Route 9 and East Main Street and that DOT was notified. The log also indicates that Officer Bilodeau was instructed to direct traffic at the intersection until the DOT crew arrived (see Exh. 1). However, Officer Bilodeau stated that only a supervisor, not a dispatcher, could order an officer to direct traffic and denied ever receiving such instructions on July 8, 1996. He further stated that he did not recommend to headquarters that traffic be directed by an officer.

David Ellis, a Civil Engineer I employed by DOT for over 12 years, was called as a witness by both parties. He testified that he has been the Engineer in Charge of the traffic signal crews for DOT’s Region 8 (which includes the subject intersection) since 1995. In July, 1996 the Region 8 traffic signal crew consisted of about six members who were responsible for the maintenance of approximately 500 traffic signals. The State has a program of relamping traffic signals at least once a year.[7] There was no formal program or procedure to monitor the frequency of bulb outages at a particular signal or intersection and no records, reports or statistics were maintained in this regard. However, traffic signal maintenance sheets are generated whenever any maintenance is performed on a traffic signal. Copies of these sheets are maintained in the traffic signal box and a copy is given to the foreman at the office. When a crew member performs maintenance on a signal, it is part of his training to review the maintenance sheets to determine prior maintenance activity and to see if it may be relevant to the problem at hand.

Mr. Ellis reviewed the signal operational specifications for the subject signal (Exh. 10). He stated that the subject intersection is a large intersection with numerous components. He stated that in July, 1996 the specifications indicate that there were five traffic signal heads containing at least one, and as many as four, signal faces. Ellis stated that the signal faces come in two sizes, 8 inch and 12 inch. The 12 inch faces take 135 watt light bulbs which are the bulbs at issue here. He further stated that there were a total of 32 bulbs at this intersection at the time of the accident on July 8, 1996.

According to the State contract relating to traffic signal equipment for the period November 1, 1994 through October 31, 1995 (Exh. 7), the average life expectancy[8] of a 135 watt bulb was 8,000 hours. Mr. Ellis was not aware of any written shelf life for these bulbs. He stated that in 1995 the relamping program in Region 8 began in February and that the subject intersection was relamped on August 3, 1995. The witness stated that any light bulbs left over from the prior contract would have been used before the new bulbs and that by August, 1995 his crews should have been using bulbs provided pursuant to the terms of the new contract (Exh. 7).

Mr. Ellis testified that on Route 9 north at the subject intersection there are two traffic signal faces for through traffic. This is designed for visibility and redundancy. There is one face for left turning traffic. If a bulb burns out in one of the two heads for a through movement, there will still be one indication visible to motorists and nothing happens with respect to the operation of the signal. If a bulb burns out in a turning lane signal, or if more than one bulb burns out for a through movement, the signal goes to flash since the current monitor does not sense a minimum amount of current. Mr. Ellis stated it is a common engineering practice for a traffic signal to operate in a flashing mode when this type of failure occurs. When the subject signal is in flashing operation, drivers on Route 9 face a flashing yellow indication while drivers on East Main Street and in the shopping plaza face a flashing red indication. This is the standard flashing operation according to the witness.

Mr. Ellis testified that by October, 1995 he had become aware there were apparent quality problems with respect to the 135 watt bulbs. The problem involved bulbs that were failing well before their rated life expectancies. Exhibit 7 contains a page which confirms that the State was aware of this problem as early as October 31, 1995. Upon becoming aware of the deficiencies in the 135 watt bulbs, DOT located bulbs which had been left over from the previous supply contract and used those bulbs in all subsequent relampings. He said no action was taken with respect to possibly defective bulbs in any of the intersections which had already been relamped; that generally, the defective bulbs failed within three to four months of installation but that there were also a number of immediate failures of the 135 watt bulbs. He stated that if that signal was not properly operating, it would be a safety issue; that an outage at an intersection such as Route 9 and East Main Street would create more of a hazard for motorists than an outage at a more rural intersection because it controls traffic traveling in four different directions. He characterized the situation as both inconvenient and a hazard because people could not be expected to exercise patience when inconvenienced by the outage. When asked to explain his earlier response that he did not consider the signal in flashing mode to be a “safe condition for vehicles crossing Route 9", he explained that traffic crossing Route 9 would be crossing many lanes of traffic without being assigned the right-of-way, and he did not consider that to be a safe condition.

The witness stated that prior to the relamping on August 3, 1995, the subject intersection had last been relamped on September 6, 1994. During the period between those relampings, there had only been a single bulb outage which did not involve a 135 watt bulb. Mr. Ellis sent a memorandum to DOT’s operations unit in Albany on October 11, 1995 (see Exh. 17) wherein he reports that from February, 1995 to the date of his memorandum, 7,212 bulbs (135 watts) had been installed in Region 8 and 150 had failed; of those, 1,833 bulbs had been installed in Dutchess County and 11 had failed.

Mr. Ellis reviewed the signal maintenance sheets for the subject intersection (Exh. 11) for the period from August 3, 1995 to July 8, 1996 and related that 6 of the 32 bulbs at the intersection burned out but only 4 were 135 watt bulbs. On March 22, 1996 a 135 watt bulb burned out causing the signal to operate in flashing mode[9]; on April 22, 1996 and May 9, 1996, a 135 watt bulb burned out, but the signal did not go to flashing mode; on May 26, 1996, two 60 watt bulbs burned out which caused the signal to go to flashing mode; and on May 30, 1996, there was another 135 watt bulb burnout which did not cause the signal to go to flash. Mr. Ellis stated that the maintenance history for the subject intersection was not unusual.

Mr. Ellis stated that the signals at the intersection immediately north (New Hackensack Road) and south (Home Depot Plaza) of the subject intersection are generally the same as the subject signal. He reviewed the traffic signal maintenance sheets for the Home Depot Plaza intersection for the period August 3, 1995 to July 8, 1996 (Exh. G) and stated that there were six separate incidents where 135 watt bulbs burned out; that these six incidents involved eight bulbs. He indicated that the total number of bulb burnouts at this intersection was not unusual. The witness also reviewed the traffic signal maintenance sheets for the New Hackensack Road intersection for the period August 3, 1995 to July 8, 1996 (Exh. J) and stated that during that period there was only one incident of bulbs burning out - two 60 watt bulbs burned out resulting in the signal going to flashing mode. Mr. Ellis testified that this was an unusually low number of bulb burnouts for an intersection. He referred to a document entitled “A Selective Response Policy for Traffic Signal Malfunctions” (Exh. 9) and stated that it deals with malfunctions which occur after normal working hours and doesn’t really apply to outages during working hours. The document classified this intersection as a “Class F” major intersection, which means that it requires “Full Response” (defined as requiring repair of the signal as soon as possible after it is reported). He agreed that, during working hours, a signal located at a Class F intersection should also be repaired as soon as possible. His normal working hours on July 8, 1996 were 7:30 am to 3:40 pm. He reviewed a Report of Traffic Signal Malfunction (Exh. 13) and stated that it reflected that a call was received at 7:55 am on July 8, 1996 which involved the traffic signal located at the intersection of Route 9 and East Main Street in Wappingers Falls. The exhibit also reflected that the malfunction was reported by the Wappingers Falls Police Department and was given to Dave Costello and Barnett Waldo and that they received the message or responded at 8:30 am. The signature at the bottom of the form indicated that Barnett Waldo received the call at 7:55 am. The witness testified that the time of “8:30" which appears on the exhibit reflects the time that two crew members were committed to handling that call and was not able to ascertain from the form whether or not anything had been done with respect to this reported malfunction between 7:55 and 8:30 am. He identified the maintenance work sheet for July 8, 1996 (part of Exhibit 11), which reflected that Dave Costello and Barnett Waldo handled the call and arrived at the signal at 9:40 am. He testified that, for this particular intersection under the circumstances, he would consider a response time of an hour to be reasonable. He stated that there is no written DOT policy regarding what constitutes a reasonable response time for a signal malfunction or repair and that, generally speaking, his crews try to respond to a signal in flashing mode within two hours. When asked about the subject intersection during the rush hour he said he would expect it to take his people less than two hours and reiterated that one hour would be a reasonable time to respond to the signal.

David Costello, a DOT employee for over 24 years and a traffic signal mechanic with the Region 8 traffic signal crew since 1981 was called by both parties. Mr. Costello testified that he works out of the DOT signal shop on Burnett Boulevard in Poughkeepsie. He agreed with Mr. Ellis that the subject intersection is a Class F “full response” intersection. He confirmed that DOT received a call at 7:55 am on July 8, 1996 and that he and Mr. Waldo arrived at the intersection at 9:40 am; that he is not sure what time he left the shop that morning but he signed out at 8:30 am. He stated that it would take at least a half hour to get from the shop to the subject intersection at that time on a weekday. Mr. Costello testified that, to the best of his knowledge, between the time the call was received at 7:55 am and the time he responded, he was engaged in his duties as the Inventory Control Officer. He stated that all the crew members were very busy that morning and he had to be pulled from his normal duties to respond to the subject intersection.

Claimant called James Spratt, a professional engineer licensed in New York for 28 years with an emphases in Civil Engineering, as an expert witness. Mr. Spratt testified that he worked for the New York State Department of Public Works1[0] until 1968 as a consulting engineer and served as Dutchess County Commissioner of Public Works from 1972 until 1992. Since that time he has again been a consultant and has appeared as an expert witness in Court on numerous occasions. He described the subject intersection as an “adapted T” intersection because it has three public legs with the fourth leg of the intersection leading into a private shopping plaza. The witness stated that this is different from a normal 4-way intersection in that the volume of traffic crossing from East Main Street into the shopping plaza would not be as heavy as what one would expect crossing through a normal 4-way intersection. He testified that the fact that the intersection met the State warrants for the particular type of traffic signal installed meant that this level of signal was required, and having the signal deteriorate from full operation to flashing mode created a dangerous intersection and a safety problem. He stated his opinion that the operation of the signal in a flashing mode created an unsafe condition, because the turning lanes increased the complexity of the intersection and the possibility of conflicts. The situation is compounded by the fact that, when the signal goes into flashing mode, the turning arrows go dark adding to the potential conflicts between turning motorists and those proceeding through the intersection. The loss of the turning arrows would cause the cars in the designated turning lanes to backup, creating another line of cars to obstruct the sight line of drivers on the mainline road. No such backup occurred in this case. He reviewed the available records and determined that the only program of maintenance of the traffic signals by the DOT was an annual relamping, with repairs being made on an on-call basis. He also reviewed the maintenance records for the intersection, which revealed only one 60 watt bulb burning out between the 1994 and 1995 relampings, while there were five burned out 135 watt bulbs between the August 1995 relamping and the date of this incident on July 8, 1996. There were actually five outages during the period from March through June of 1996, which was a significant change from what he considered the norm1[1] and indicated that corrective action should have been taken to cut the number of outages down to the same frequency as in previous years. He further opined that the Home Depot intersection does not actually compare with the intersection in question as the Home Depot intersection only has two public legs - north and south, while the remaining legs feature a private plaza on each side. The number of outages at the Home Depot intersection was also above the norm and would be an indicator that the relamping program might need to be adjusted. The witness testified that the State had no program in place for identifying problem locations or intersections which might require premature relamping. He opined that the lack of such a program violated good engineering, traffic safety and maintenance procedures because it failed to assess the actual events occurring in the field. Such a program would also have helped the State to more quickly determine and pinpoint the problem with the 135 watt bulbs.

Mr. Spratt stated that the distance from the traffic signal shop on Burnett Boulevard to the subject intersection is nine miles and estimated, based upon his knowledge as former Dutchess County Commissioner of Public Works, that the trip would take approximately 18 minutes during the morning rush hour. He expressed the opinion that the actual response time of 1 hour 45 minutes, on July 8, 1996, was excessive.1[2] He opined that a reasonable response time to this location would have been twenty-five minutes. He stated that good traffic safety and maintenance practice would have suggested requesting assistance from a local police agency to monitor and control traffic flow until the repair could be completed. In Mr. Spratt’s opinion the State’s failure to properly maintain this traffic signal was a partial cause of claimant’s accident. He also opined that the actions of Ponte, in attempting to cross six lanes of traffic on Route 9, were foreseeable due to the conditions extant at the time. He also concluded that claimant had no chance to avoid striking the Ponte vehicle, since that vehicle was less than a car length away when she first saw it, and her own vehicle was traveling at approximately 35 MPH.

Nicholas P. Pucino, a licensed professional engineer, testified as an expert witness on behalf of the State. Mr. Pucino has experience with investigating and analyzing safety of signalized and unsignalized intersections and studying traffic signal operation and street lighting. Mr. Pucino stated that, during the ten years that he was the Chief Engineer of the East Hudson Parkway Authority, he had overall technical supervision for the crews that maintained the traffic signals and street lighting systems on the parkway. He also conducted studies of the mortality and economics of various types of luminaires1[3] so that the parkway system had more efficient lower cost lighting and a reasonable relamping program, and designed and oversaw the upgrading of the system as well as new lighting systems.

The witness stated that for all practical purposes the subject intersection operates as a T-type intersection. He agreed with Mr. Spratt that traffic crossing from East Main Street to the shopping plaza at this intersection is extremely light. However, he disagreed with Mr. Spratt’s conclusion that the low volume of crossing traffic makes the intersection more dangerous than an intersection which has full crossing volume. Mr. Pucino stated that one would expect an intersection that had more crossing traffic to have more accidents since with lower volume there are fewer cars making turning movements and less likelihood of an accident.

The traffic signal at the subject intersection was also in flashing mode on January 19, March 22, and May 26, 1996 (see Exh. 11). Mr. Pucino testified that he reviewed the accident history maintained by DOT for the intersection and there were no accidents on these dates. Mr. Pucino expressed his belief that the subject intersection is safe when the signal is in flashing mode so long as motorists behave responsibly. He explained that the best way to determine whether an intersection is operating safely while the traffic signal is flashing is to observe traffic at the intersection during the flashing operation. He stated that anyone with some traffic safety background who is present at the scene (in this case, Officer Bilodeau), is in a position to evaluate the safety of the intersection.

Mr. Pucino examined the bulb burnout history for the subject intersection, in concert with the failures in the adjoining intersections, and found the burnouts to be within normal range of variability for traffic signal burnouts. While he considered the number of burnouts “probably above average”, it was not so unusual as to require specific action. There was no reason to relamp this intersection ahead of schedule in his opinion. Exhibit K is a graph prepared by Mr. Pucino which shows the cumulative number of lamp burnouts against the time since the last relamping at the Home Depot and East Main Street intersections.1[4] The graph shows great variability in the bulb burnout rates for the intersections in both the numbers and the timing. Pucino stated that this variation is common because bulbs don’t all behave in a uniform fashion. Thus, Mr. Pucino disagreed with Mr. Spratt’s statement that the burnout history was out of the norm. He again stated that this is the kind of variability one can expect. In Mr. Pucino’s opinion, early relamping was not necessitated by the burnout rate.

Pucino directly contradicted Mr. Spratt’s assertion that the life expectancy of a bulb means that 100 percent of the bulbs will last the rated life. He explained that the rated lamp life is the point in time at which it is expected that 50 percent of the lamps would survive and 50 percent would be lost. It is impossible to manufacture a bulb with a specific burnout point. Therefore, manufacturers provide a mortality curve which shows the number of burnouts expected over various percentages of the rated lamp life.1[5]

With respect to the issue of response time, Mr. Pucino looked at the response time pattern for other events when the subject signal went on flash and found one hour to be typical. On January 19, 1996, the crew arrived within one hour of receiving the call; on March 22, 1996, within one hour and 40 minutes; and on May 26, 1996, within one hour and 15 minutes. Further, the witness disagreed with Mr. Spratt’s opinion that anything more than 25 minutes is unreasonable. Asked the significance of the fact that this subject accident occurred less than one hour after DOT was notified of the malfunction, Mr. Pucino stated that this is within the range of reasonable response times. Also, Mr. Pucino disagrees with Mr. Spratt’s assertion that DOT should have contacted the Wappingers Falls Police Department for traffic control since the call originated from the Wappingers Falls Police Department. In the witness’ opinion, the police officer on the scene responds as he deems appropriate based upon conditions he sees. Since DOT may request, but not order police intervention, the Court agrees that a return notification was unnecessary.

The State has a nondelegable duty to properly and adequately design, construct and maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 NY2d 271). However, the State is not an insurer of its highways and the mere happening of an accident does not create a presumption of liability against it (Tomassi v Town of Union, 46 NY2d 91). A claimant has the burden of establishing that the State was negligent and further that the negligence was the proximate cause of the accident (Demesmin v Town of Islip, 147 AD2d 519). Significantly, liability cannot attach unless the State had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (Brooks v New York State Thruway Authority, 73 AD2d 767, affd 51 NY2d 892).

DOT has a duty to install, operate and maintain traffic control devices at the intersections of state highways (Vehicle and Traffic Law § 1681). The State will be held liable if it has notice of a defect in a traffic signal that causes a potentially hazardous condition at an intersection and fails to take corrective measures (Meyer v State of New York, 51 AD2d 828). To recover, a claimant must establish that a malfunctioning light was a proximate cause of the accident (Wood v State of New York, 112 AD2d 612).

Negligence on the part of a governmental entity maintaining a traffic signal will not be established absent expert testimony that a traffic signal operating in flash mode instead of sequentially is an unreasonable danger to the public because of the nature and traffic volume of the specific intersection in question (Watzka v La Grange, 42 AD2d 658; Law v State of New York, Claim No. 94901, Collins, J., filed 4/7/98).

The failure to observe and stop at a properly operating flashing red light can give rise to a determination of negligence for a breach of the statutory duty and of the common law obligation to see what is there to be seen (Milka v Hernandez, 187 AD2d 1031). If the trier of fact determines from the proof that traffic signals are operating properly in flash mode, a motorist’s failure to observe the flashing signal and yield the right-of-way will result in the dismissal of a claim brought against the State as the proximate cause of the accident would be the conduct of the involved drivers (Law v State of New York, supra; Denision v State of New York, Claim No. 92500, McNamara, J., filed 3/18/98).

The evidence established that the subject signal was on flashing mode at the time of the accident because one of the 135 watt light bulbs had burned out. The evidence further established that the signal defaulted to flashing mode several times previously and that the State was generally aware of a problem with the 135 watt bulbs purchased pursuant to the contract (Exh. 7) and used during the 1995 relamping season. The 135 watt bulbs had a rated lamp life of 8,000 hours and the State was aware by October, 1995 that a number of the bulbs were failing before their rated life expectancies.

The Court finds the testimony of the State’s expert, Nicholas Pucino, to be more credible on the issue of the life of the 135 watt light bulbs. Pucino explained that the bulb’s rated life is the point at which half of a given quantity of identical bulbs may be expected to fail. He stated that it is impossible to manufacture a bulb with a specific burnout point.

According to Spratt, two or more bulb burnouts at a signal during a given year would warrant a premature relamping of the signal and after the second bulb failure on April 22, 1996, DOT should have taken crews from the scheduled relamping of intersections and relamped the subject intersection ahead of schedule.

In contrast, it was the opinion of Pucino that there was no cause to relamp the subject signal ahead of schedule. He stated that the number of burnouts was not so significant as to warrant a premature relamping especially at the cost of not relamping a signal that was already at its 12 month service life somewhere else in the system. Thus, he does not consider DOT’s action unreasonable. This Court agrees.

The Court finds that the maintenance history for the subject signal from August, 1995 to July 8, 1996 was not a significant change from the “norm”. The evidence established that approximately two percent of the 135 watt bulbs which were installed in Region 8 during the 1995 relamping year burned out prematurely. The Court finds that this percentage which was well under the mortality rate as described by Pucino and did not place the State on notice of a dangerous condition. We also find the preponderance of the credible evidence presented at trial failed to establish that the State was negligent in its repair and maintenance of the subject traffic signal based upon the failure to relamp ahead of schedule.

Claimant also alleges that the State’s failure to arrive at the subject intersection prior to claimant’s accident constituted negligence. As stated above, liability will not attach unless defendant had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (id p 17). The evidence established that the signal went to flash mode at 7:49 am and that DOT was so notified at 7:55 am. The accident occurred at 8:53 am, less than one hour later. On the facts in evidence, there is no basis for the Court to conclude that the failure of defendant to respond within 58 minutes is, per se, negligence.

The Court accepts the on-scene evaluations of Officer Bilodeau who repeatedly concluded that there were no traffic problems at the intersection and it did not constitute a dangerous condition on July 8, 1996. The Court accepts Pucino’s opinion that a person with some traffic safety background who is present at the scene of a malfunctioning signal is in the best position to determine if the intersection is dangerous. This is just what Officer Bilodeau did and the Court accepts his repeated on-scene findings as the most persuasive evidence submitted on this issue. As claimant failed to establish that the defendant had notice of a dangerous condition and failed to take reasonable measures to correct it, this cause of action is dismissed.

The preponderance of the credible evidence compels a determination that the proximate cause of this collision was the conduct of the drivers. Neither Ms. Ponte nor claimant saw the other until just prior to the accident. Each was bound to see that which should have been seen with the proper use of her senses (Wiegand v United Traction Co., 221 NY 39; Mohammad v Frische, 223 AD2d 628; Sappleton v Metropolitan Suburban Bus Auth., 140 AD2d 684). Ms. Ponte attempted to cross Route 9 when she did not have an opening in traffic to clear all the approaching vehicles. Ms. Fontaine did not see the Ponte vehicle enter the intersection . The apportioning of fault will be left for determination in the pending Supreme Court action.

Defendant’s motion to dismiss made at the conclusion of trial, upon which the Court reserved decision, is now granted and the claim is dismissed. All other motions made at trial upon which the Court reserved decision are denied as moot. The Clerk of the Court is directed to enter judgment accordingly.

June 27, 2001
White Plains, New York
Judge of the Court of Claims

[2]. Testimony of other witnesses at trial established that the Home Depot intersection is approximately 500 feet south of the subject intersection.
[3]. At the time of trial Anne Ponte had married and is known as Anne Ponte Beaham. For convenience, the Court will refer to her as Anne Ponte.
[4]. Testimony established that the New Hackensack Road intersection was located approximately 500 feet north of the subject intersection.
[5]. This “10 minutes” seems unlikely in view of the testimony by all involved that traffic was “light” and that the two other intersections were operating correctly.
[6]. The driver of the BMW (Exh. L).
[7]. Relamping begins in early spring and continues through late fall. Relamping includes changing all the bulbs, cleaning the lenses, cleaning the cabinet, checking the detectors, checking wire connections and ensuring that the signal is operating in accordance with specifications.
[8]. The number of hours the bulb is illuminated.
[9]. Another bulb was out at that time. A 107 watt pedestrian indicator bulb.
1[0]. This is DOT’s predecessor agency.
[1]1. The witness considered the norm to be the previous full year’s bulb outages. In this case, the 60 watt bulb.
1[2]. In this matter, the real question is whether a response time of 58 minutes is unreasonable since post-accident response time is causally irrelevant.
1[3]. “Luminaires” refers to the entire lamp - the bulb as well as the shield or lens.
1[4]. Mr. Pucino did not plot the New Hackensack Road intersection since it had only a single burnout during the period in question.
1[5]. Mr. Pucino explored the issue of potentially defective bulbs and found that, in Region 8, it was approximately two percent of the 135 watt bulbs that were initially found to be defective. They were early burnouts, often within four to five months. New Hackensack Road had no 135 watt bulb burnouts, but the Home Depot intersection had an early burnout history. Therefore, he opined it is likely that some of the defective bulbs had been installed in the signal at the Home Depot intersection. Since the first failure at East Main Street was over seven months after the relamping, Pucino believes that one cannot say that there were defective bulbs installed at the subject intersection. He further opined that the State did not have to reevaluate its relamping schedule based upon the number of burnouts between August 3, 1995 and July 8, 1996. He stated that this intersection is just a little piece of the whole Region 8 pie and the number of burnouts at the subject intersection would not be a concern to him.