New York State Court of Claims

New York State Court of Claims

TRI-STATE v. THE STATE OF NEW YORK, #2002-016-057, Claim No. 101669


Case Information

TRI-STATE CONSUMER INSURANCE COMPANY a/s/o ROBERT AND MAUREEN ADLER The caption has been amended sua sponte to reflect that the sole proper defendant is the state of New York.
Claimant short name:
Footnote (claimant name) :
The caption has been amended sua sponte to reflect that the sole proper defendant is the state of New York.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Murray Lemonik, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Laurie A. Gatto, AAG
Third-party defendant's attorney:

Signature date:
June 12, 2002
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the liability trial of a property damage claim arising from a

collision between a state vehicle and one driven by Robert Adler. The Tri–State Consumer Insurance Company took over the suit as the subrogee of Robert and Maureen Adler.
On the morning of June 3, 1998, a Department of Transportation (DOT) vehicle, a bright yellow dump truck (def exh B), was headed eastbound on the service road of the Long Island Expressway (LIE), just off exit 51 in
western Suffolk County. The DOT truck stopped at a red light at the intersection of the service road with Route 231, also known as Deer Park Avenue.
Michael Curreri, a twelve-year veteran of the Department, was driving; DOT supervisor Daniel Sorrese was next to him in the passenger seat. Both Curreri and Sorrese testified at trial; they were matter-of-fact, credible witnesses, and if they did not know or recall something, would say so. Two other employees who were also in the truck at the time were not called to the stand.
The crew had left the DOT yards in Melville and were on the way to their assigned duties for the day, which included checking Route 231 and its grassy areas for debris.
Curreri had been waiting for the light to change in the second lane from the right, the lane from which a vehicle could either turn right or drive straight ahead. The truck was stopped at the light for about 15 seconds and was the first vehicle in its lane. Curreri described what happened when he tried to make a right onto Route 231 in a southbound direction:

[The] light turned green...the truck is a stick, so I put my foot on the clutch and I was in first gear and was just moving the truck very slowly and I was making a turn into the intersection and right away I see something coming flying on the side of me and hit and right away I stopped the vehicle right in the middle of 231.
What surprised Curreri was the Chevy Suburban van driven by Robert Adler (cl exh 1); it had
been in the far right lane from which only right turns were permitted. It was undisputed that the Suburban had been driven straight ahead and had not attempted or begun a turn to the right. Route 231 is two lanes in each direction; thus cars in the two rightmost lanes of the Expressway service road turning onto 231 southbound can maintain their positions within lane.
Curreri recalled that he was driving "maybe two, three miles an hour. I was just coming out of first gear." He testified that the Adler vehicle was moving faster, at 10 to 15 miles per hour. Out of the side of his eye, Curreri noticed Adler's vehicle, but the time between first sighting and collision was a "split second," and he had no chance to react. His passenger Sorrese never saw the other vehicle until impact. The specific contact of the two vehicles was between the front bumper of the dump truck on the passenger side and the left rear of Adler's van.
The driver's position in the dump truck is situated sufficiently high and affords a good view of other vehicles. Curreri testified that he had his right directional signals on. His truck has two sets of directionals for enhanced visibility: high - - above each side view mirror, and low – above each mud flap. When Curreri picked up the state vehicle at the Melville yards, he performed the safety check for lights, mirrors and the like, as he did every morning when he was the crew driver. Neither party at any time asserted that the weather or the condition of the road had anything to do with the accident.
Section 1110(a) of the Vehicle and Traffic Law provides in relevant part that "[e]very person shall obey the instructions of any official traffic-control device applicable to him...unless otherwise directed by a traffic or police officer..." At the light where Curreri waited with his truck, the service road had four lanes. Suspended over each of the four lanes was a rectangular, black-on-white traffic control device. Under the Uniform Manual of Traffic Control Devices[1]
, which are part of the official compilation of the State's rules and regulations, the four overhead signs are termed "intersection lane use signs," and they limit lane use to vehicles making specific traffic movements (17 NYCRR §213.5; §213.1[e]).
Over the rightmost lane is a right-turn only sign - - a right arrow over the word "ONLY," depicted in R3-24 of §213.5. The next lane over, second from the right, was controlled by a sign that permitted either a right turn or driving straight ahead (the figure in R3-26). These are the two lanes at issue here, but to complete the picture, the next two lanes are symmetrical: the left-most lane is left-turn only, and a vehicle in the second lane from the left may turn either left or drive straight ahead (R3-22 and R3-25).

Robert Adler ignored this lawful direction.
Claimant Tri-State Insurance contends the "fact that [defendant] saw plaintiff subrogor before hitting his vehicle in the rear creates a strong inference of negligence on the part of the defendant" (see its Letter Brief, dated March 1, 2000 at page 1). Claimant does however concede that there should be an apportionment of damages (id., page 2).
Claimant's contention that what transpired was a garden variety rear-end collision in which the trailing vehicle is presumptively at fault does not square with the facts in this case. The vehicle of claimant's subrogor was in a place which it should not have been, namely, straight ahead beyond its turning-only lane in violation of Vehicle and Traffic Law §1180 and §213 of the Manual of Traffic Control Devices. Compare, for example, two recent Second Department cases: Bustillo v Matturro, 740 NYS2d 360 (2002), and Sabbagh v Shalom, 289 AD2d 469, 735 NYS2d 593 (2001).
In view of the foregoing, this claim (no. 101669) is dismissed. All previous motions not ruled upon are hereby denied.

June 12, 2002
New York, New York

Judge of the Court of Claims

[1] 17 NYCRR §200 et seq.