New York State Court of Claims

New York State Court of Claims

TUFANO v. THE STATE OF NEW YORK, #2002-016-042, Claim No. 100573


Synopsis



Case Information

UID:
2002-016-042
Claimant(s):
SARAH TUFANO and ANTHONY TUFANO
Claimant short name:
TUFANO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100573
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Sarisohn, Sarisohn, Carner, LeBow, Braun & Shiebler, Esqs.By: Michael Carner, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John Shields, AAG
Third-party defendant's attorney:

Signature date:
May 2, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is the decision on liability of the claim of Sarah Tufano[1]
who, while a pedestrian, was struck by a Department of Transportation vehicle. At trial, Ms. Tufano testified on her own behalf and called an eyewitness, Wilson Freire. The defendant put on the stand the driver, Salvatore Mazza, and another Department (DOT) employee, Thomas Vogel, a passenger with him at the time.
The basic factual context is undisputed. Claimant was attempting to cross Union Boulevard at its intersection with Second Avenue in Bay Shore, Suffolk County. Union Boulevard runs east-west and two lanes in each direction with no median or divider, other than road markings. Second Avenue has half as many lanes, one for traffic moving north and the other southbound.

Mazza was driving southbound on Second Avenue in his DOT Chevy pickup truck, began to make a left turn onto Union Boulevard going eastbound and struck Tufano, who had not quite made it halfway across the four-lane boulevard - - she was still in the left-most eastbound lane into which Mazza was turning (cl exh 1; def exh B). The weather was clear and sunny; the pavement dry. It was about 8 o'clock in the morning of February 5, 1999. The exact time did not become consequential to the determination of liability. Nonetheless, it might well be noted that claimant testified that she was struck some time between 8:15 and 8:30 am; the eyewitness had a range of 7 to 8 am; the driver Mazza pegged the time of the accident at 8 am and the police report listed it at 8:30 am (def exh A).
As of February 5, 1999, Mazza had been a bridge repair supervisor with the Department for eight years, and was in the midst of some bridge projects "out east...Hospital Road, Route 101...William Floyd Parkway." That morning, he arrived at 7:30 at the DOT facility in Babylon. Mazza took a headcount of his workers, did a quick check of his vehicle, drove off for coffee with Vogel, and then traveled south on Union Boulevard toward Second Avenue.
Tufano had also begun her workday - - at New Beginners Preschool, where she had been for fourteen years. Claimant left work and headed for a nearby florist to buy a gift for a colleague at the preschool who had suffered a death in the family. Tufano walked north on Second Avenue and uneventfully crossed to the southeast corner of its intersection with Union Boulevard. The flower shop was across the street, at or near the northeast corner of the intersection (cl ex 1).

What the parties are disputing is whether Tufano was in the crosswalk when traversing Union Boulevard. I conclude by the fair preponderance of credible evidence that she was:

1. Mr. Freire, an independent eyewitness, was certain that she was within the crosswalk. He had a matter-of-fact manner that made him quite credible on the stand, although he initially testified, at variance with claimant's testimony, that Tufano was crossing north to south, then corrected himself, said he could be mistaken - - it may have been south to north. Claimant's recollection that she was going from the south to the north side of Union Boulevard is on sounder footing because it reflects that she had not yet made it to the florist's. To that effect, Freire did not recall Tufano carrying anything, nor did Mazza observe any package from the florist shop when he went to assist Tufano.
Freire
was stopped on Second Avenue behind the crosswalk waiting at the red light; claimant was struck in the middle of the next lane over (the left lane of eastbound Union Boulevard traffic). While defendant elicited the fact that Freire was the second vehicle in his lane from the intersection, I do not credit defendant's theory that Freire had an obstructed view of what happened. He was in a Pathfinder SUV and described the vehicle in front of him as a car. Further, even if the car was blocking his view straight ahead, the events unfolded diagonally to Freire's left, which afforded a clear view.
2. Claimant credibly testified that she was walking in the crosswalk.
3. Claimant's testimony about her path, illustrated in red on claimant's exhibit 1, shows that there was no incentive to cross Union Boulevard east of the crosswalk away from the intersection, because that would be a longer route.
4. The driver Mazza in his deposition testimony stated that: "I believe I was past the crosswalk at the time of impact." Mazza, however, conceded that he never saw Tufano until she was hit by his truck, or was right in front of him.[2] Neither Mazza nor his co-worker Vogel ever actually saw whether Tufano was walking in the crosswalk; but they attempted to deduce Tufano's location when struck from where she and the truck were following the impact. Freire explained that the impact "sent her about 10, 15 feet...She flew. She was in the air." Ms. Tufano said "I went flying"; she did not attach any distance to her flight.
By their testimony, the two DOT employees suggest that inasmuch as Ms. Tufano was alert (she asked about her pocketbook) and able to ambulate (Mazza had to ask her to sit down), claimant was not hurt very badly and could not therefore have been thrown very far, if at all: thus when found a few feet outside of the crosswalk, claimant must not have been within the crosswalk when she was struck. Defendant's theory is unsupported by credible evidence and is wholly speculative, particularly without an expert in accident reconstruction.

Section 1151 of the Vehicle and Traffic Law is entitled "Pedestrians'
right of way in crosswalks." Unless traffic signals otherwise control, subdivision (a) of §1151 requires a driver to - -
yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is upon the half of the roadway upon which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger...
See, for example, Zabusky v Cochran, 234 AD2d 542, 651 NYS2d 190 (2d Dept 1996).
Here the light was green for both driver and pedestrian: Mazza had a green light as he drove south into the intersection preparing to turn left; Tufano had the same green light as she came from the other direction. This was a regular green light,
i.e., there was no left-turn arrow signal.
Neither claimant nor the eyewitness made reference to whether Mazza had utilized his vehicle's left turn signal.
The driver and his passenger testified that Mazza did so signal. By itself, the use of such a signal by a vehicle would not change the right-of-way rules vis-a-vis a pedestrian.
Under subdivision (b) of V & T Law §1151 and
PJI 2:75, a pedestrian is the negligent party if he or she walks or runs into the path of the vehicle so suddenly that it is impossible for it to yield the right of way.[3] Such was not the case with Tufano. Freire described her as "just walking slow... [walking at a r]egular pace." Tufano, without credible challenge, described her crossing: "Before I crossed, I stepped onto the curb. I made sure there [were] no cars coming on my left-hand side as I was crossing. I got to the middle of the road and that's when I saw the truck on top of me."
Claimant bears no responsibility for the accident; she acted in accordance with the standard therefor:
"Whether or not a pedestrian is in a crosswalk, a pedestrian is negligent for failing to look with care for oncoming traffic, but if the pedestrian looks as he/she starts to cross and the way seems clear, the pedestrian is not bound to look again as a matter of law, Knapp v Barrett, 216 NY 226...see Sullivan v Locastro, 178 AD2d 523, 577 NYS2d 631." (Comment to PJI 2:75 [2002 ed at p 379-80])
***
In view of the foregoing, the defendant is fully liable for the accident of February 5, 1999 and any damages arising therefrom to Sarah and Anthony Tufano. All motions not previously ruled upon are hereby deemed denied. The parties will be contacted preparatory to the damages' trial of this matter.


LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

May 2, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims



[1] Because the issue of liability involves only Ms. Tufano, i.e., the claim of her husband is derivative, references herein to "claimant" and "Tufano" pertain to Sarah Tufano.
[2] Answer [Mazza]. "I was coming into the intersection, had my signal on and my foot on the brake, looked both ways, didn't see anyone, made my turn, and I was swinging my head back and forth for a double take - and there she was...Right in front of me, and I hit my brakes. Q. From the moment that you saw her to the time you hit your brakes, how much time transpired? A. I'd say, a fraction of a second. Q...had you seen her prior to that moment? A. No, sir.
[3] Subdivision (b) of §1151 reads, "No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield."