New York State Court of Claims

New York State Court of Claims

ARMWOOD v. THE STATE OF NEW YORK, #2002-001-516, Claim No. 99370


Claimant failed to prove his claim, sounding in negligence arising out of a collision between a bicycle and a State-owned vehicle, by a fair preponderance of the credible evidence, and the claim is dismissed

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:
Sonin & Genis, Esqs.By: Robert J. Genis, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Albert Masry, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
December 31, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

This action sounding in negligence arose out of a collision between a bicycle piloted by claimant Donald Armwood ("claimant")[1]
and a State vehicle operated by Lawrence A. Acevedo ("Acevedo"), an agent of the State Commission of Investigation, on September 2, 1998, at the intersection of West Fordham Road and the Major Deegan Expressway North. Typical of intersection-collision cases, where the right-of-way is controlled by a traffic control signal, the significant issue in this bifurcated trial was which party had the green light or, conversely, which party negligently proceeded through the red light in violation of the Vehicle and Traffic Law (see, Vehicle and Traffic Law § 1111 [a], [d]; 1A NY PJI 2:79 [3d ed]). The following evidence was developed at trial to explain the incident and answer this question.
Claimant testified that on the day of the accident he was traveling West on West Fordham Road heading towards its intersectsion with the Major Deegan Expressway. He explained that his approach to the intersection required him to ascend a fairly steep hill before he entered the intersection area. At the intersection, West Fordham Road consists of three lanes heading in each direction with the innermost lane designated as the turning lane for the Major Deegan Expressway entrance ramp.

According to claimant, he was bicycling down to the intersection and observed that the light controlling his travel lane was green. The traffic was flowing and the cars were traveling faster than he was on his bike as he proceeded through the intersection in the farthest right portion of the outside lane next to the curb. The State vehicle, a four-door sedan operated by Acevedo, claimant continued, hit him although he was not aware of the direction from which it came. Claimant further testified that, after seeing the car a split second before it hit him, he applied his brakes to avoid a collision and slid his tires before impact. According to claimant, his front tire hit the vehicle's right front fender, causing his body to hit the passenger door.

On cross-examination defendant State of New York ("defendant" or "the State"), among other things, introduced claimant's Verified Bill of Particulars (entered into evidence as Defendant's Exh. B). In response to defendant's demand in the Bill for "a specific statement of the manner of the occurrence alleged in the Claim" (Defendant's Demand for Verified Bill of Particulars, dated January 6 and filed January 8, 1999, ¶ 4), claimant averred that as Acevedo proceeded to make a left turn onto the Major Deegan Expressway, "[claimant] collided with [the] passenger side door of defendant's vehicle" (Defendant's Exh. B, ¶ 4).

The State's first witness was Alvin Rodriguez ("Rodriguez"), an Emergency Medical Technician who had witnessed the accident from the ambulance he was operating. He testified that while he was stopped at the same intersection, he saw a bicycle going in the same direction as he was. Although his testimony was obviously affected by the significant passage of time between the incident and the trial, Rodriguez seemed positive that he, and the other cars around him, were stopped at the time of the accident and that the reason they were stopped was because their lane of travel had a red light. He remembered seeing the bicyclist enter the intersection and a car coming out and hitting it, although he also stated that he did not remember how the car and bicycle contacted. Rodriguez remembered that after the collision he checked to see if the bicyclist was all right and that, although claiming injuries, the bicyclist refused medical treatment.

During a vigorous cross-examination, Rodriguez's weak present memory of the event was accentuated. Although he remembered that the bicyclist had been heading in the same direction as he was, he could not recall, for a fact, what color the light controlling his, and claimant's, lane of travel had been. On re-direct Rodriguez could remember that his vehicle was not moving but, as exposed during cross-examination, he had no specific recollection of the color of the traffic-control light at the time. Rodriguez was then shown a copy of a sworn statement that he had given to a State investigator on January 9, 1999, approximately four months after the accident. After reviewing the three-page document in an attempt to refresh his recollection, Rodriguez stated that because the accident happened four years earlier, he had no specific memory of what color the traffic light was independent of what was recorded in his statement. Rodriguez further testified that when he made the report it was an accurate portrayal of his recollection.

Exercising its discretion, the Court admitted the sworn statement into evidence over claimant's objection (Defendant's Exh. C) as past recollection recorded. In the Court's view, the requirements for admission of the sworn statement into evidence had been met. It was clear that Rodriguez witnessed the event; that he lacked sufficient recollection four years later to definitively state what color his, and claimant's, light had been; that the statement was relatively fresh when it was made and that it accurately portrayed his recollection of the event when it was sworn to (
see, People v Taylor (George), 80 NY2d 1; People v Somarriba (Lino), 192 AD2d 484). This statement, taken together with Rodriguez's testimony (see, Prince, Richardson on Evidence § 6-220, at 369-370 [11th ed]), presented a scenario in stark contrast to claimant's version of the event. The combination of evidence presented a situation where Rodriguez was stopped at a traffic light while the oncoming cars in front of him were turning left across the intersection to enter the Major Deegan Expressway. A bicyclist (claimant) to his right entered the intersection against a red light and collided with a vehicle (Acevedo's) turning left to enter the expressway (Defendant's Exh. C).
Acevedo's testimony was to the same effect. He testified that he was heading home after work and was situated as the first car in the left-hand turning lane of West Fordham Road poised to cross the opposite lanes of traffic to reach the Major Deegan Expressway, North. Traffic was heavy and when he saw that he had the green arrow, he proceeded to make the left turn heading towards the entrance ramp at a slow speed. The traffic going in the opposite direction was stopped before he proceeded, but as he was entering the ramp he heard a sound and peripherally saw claimant strike the passenger side of his car. On cross-examination, Acevedo admitted that he did not see the bicycle before impact, but maintained that he did have the green arrow and that he had seen that the oncoming traffic was stopped.

"A green light is an invitation to proceed. The driver who has a green light has the right to assume that the light is red for cross traffic and that other drivers will stop for the red light" (1A NY PJI 2:79, at 396 [3d ed]). Here, based on the weight of the credible evidence, the Court finds that claimant did not have a green light when he entered the intersection. Although Rodriguez's memory had been dulled by the passage of time, the Court credits his unbiased version of the event as supplemented by his sworn statement. The Court also finds Acevedo's coinciding version to be credible and, therefore, believes that when he made his left-hand turn, the traffic control device displayed a green arrow giving him the right-of-way. Thus, the Court finds that the sole proximate cause of the collision was claimant's own culpable conduct in running a red light. While the Court recognizes that Acevedo did not see claimant prior to impact, given claimant's lane position (the far right of the lanes), the reported heavy traffic conditions during what was rush hour and the fact that the stopped traffic could well have obscured claimant until he entered the intersection, the Court does not find that Acevedo failed to exercise due care while he navigated the intersection, or that he should have seen claimant before impact (
see, Siegel v Sweeney, 266 AD2d 200; 1A NY PJI 2:79, at 396 [3d ed]).
Based on the foregoing, the Court finds that claimant has failed to prove his claim by a fair preponderance of the credible evidence, and dismisses Claim No. 99370. Any motions on which the Court reserved judgment or which were not previously decided are now denied. The Chief Clerk is directed to enter judgment accordingly.

December 31, 2002
Albany, New York

Judge of the Court of Claims

[1]The claim of claimant Estelle Armwood is derivative in nature; therefore, "claimant" refers solely to Donald Armwood, as indicated.