Sarantis Moundroukas, hereinafter
seeks damages for injuries arising
out of an automobile accident that occurred on the morning of August 17, 1997
when he drove his van northbound on the Taconic State Parkway (Taconic) and
allegedly lost control of his vehicle due to a one and a half foot tree limb on
the roadway. The trial of this claim was bifurcated and this Decision pertains
solely to the issue of liability.
Claimant, a 79 year old Greek immigrant, testified through a translator.
Claimant stated that he understood the questions and had no difficulty answering
However, his testimony was less
than clear. For example, when asked if he had been in an accident in August
1997, he answered "No" (T6:9). Then, when asked if he had been in an accident
in 1997, he answered "No" (T6:9-10). Claimant then stated that, "There was an
accident before" and when asked if he recalled when the accident occurred, he
said "1993" (T6:9-11). He continued to testify that the accident occurred on
the Taconic. When questioned what direction he was traveling , he replied
"South" (T6:12). He was then asked "North or South?" to which he responded
"North" (T6:12). Claimant stated that, en route to his business in Mahopac, the
accident occurred "About a half a mile from Route 6" (T6:12, 13). When asked if
at some point his vehicle came into contact with an object, he answered "No"
(T6:14). He was then asked, "At some point in time, did an accident occur?"
). He responded "There was a big, a wood right in the street"
). When asked where the big piece of wood was located, claimant
responded "On the sidewalk" (id.
). Upon further questioning he said,
"The side of the street" (T6:15). He described the wood as one and one half
feet long (T6:14).
The essence of
claimant's scant testimony, which was often not responsive to the questions
asked, is that the road was dry and it was not raining (T6:13-14). Claimant was
in the right lane, traveling at a speed of 45 to 50 mph, when he observed a one
and a half foot tree limb in the road and did not have ample time to take
evasive action to avoid hitting it (T6:15). According to claimant, his right
front tire hit the wood and the van flipped over to the right side of the
roadway. Claimant did not observe the wood in the roadway after his accident
Claimant's son-in-law, Nick Rentoulis, testified that the day after claimant's
accident, Rentoulis and an investigator, who is now deceased, went to the area
just south of the Shrub Oak exit where he believed that accident had occurred.
Rentoulis observed tire tracks, part of what he believed to be claimant's
vehicle, shattered glass, broken branches, and scattered cut wood in a grassy
area on the side of the road. Some of the wood was only 10 feet from the travel
lane and was three to four feet in length. The investigator took photographs of
the area. (Exs. 4, 7-9, 15-27, 37). The photographs were received into
evidence, however, the Court notes that the photographs do not depict any mile
markers or other identifying signs or landmarks specifying the roadway or any
State Trooper Miguel A. Nunez, who responded to the scene, completed an
accident report. The report placed the accident on the Taconic at mile marker
1155 and described the location as one mile south of the intersection with Route
132 (Ex. 45). Mile marker 1155 was more than one mile south of the intersection
with Route 132. Nunez was not called to testify by either party; thus the
location of the accident as set forth in the report remains inconsistent and
Joseph Osso, who is employed by the Department of Transportation (DOT) as a
Civil Engineer II, testified that, in 1997, he was a contract supervisor in the
construction department and engineer-in-charge in the region which covers the
area of the accident. In April 1997, he supervised a contract with Sun-Up
Enterprises (Sun-Up) to remove trees on the Taconic that had fallen on the road
during an April snowstorm. During the course of four days, Sun-Up personnel
removed limbs and branches from the Taconic in an area north of Route 202 near
the Shrub Oak exit (T6:69). As they proceeded, a DOT employee inspected the
work performed. Osso explained that mile marker 1155, as indicated in the
police report as the accident location (Ex. 45), is two and a half to three
miles south of the Shrub Oak exit and three quarters of a mile south of Route
Prior to reopening the road for traffic, all of the limbs and branches had to
be removed. The DOT inspector was at the work zone overseeing the project each
day (T6:57). It was the inspector's responsibility to ensure that all limbs
were removed from the site. If the inspector did not approve of the work
performed, the inspector could order Sun-Up to redo it until it was satisfactory
(T6:57-58). According to Osso, trees are never cut one day and then taken away
the next (T6:50). Limbs are not stacked for later removal. There is no
evidence that Sun-Up failed to satisfy the contract.
DOT is still using the services of Sun-Up.
Charles Eichler, who has been employed by DOT for 30 years, testified that he
has been a Highway Maintenance Supervisor II for 20 years. In 1997, he was
responsible for the area of the accident. He searched the records maintained in
his office and did not find any reference to tree removal or trimming in the
location of the accident for the two weeks before and after August 17, 1997, nor
was there any record of any complaint regarding roadway obstructions. On August
17, 1997, Eichler did respond to two other locations which had incurred damage
from a storm on August 16, 1997 (Ex. B).
Eichler testified that if DOT's Maintenance Department had cut trees, they
would not have been left on the side of the road unless there was another
emergency that needed to be addressed (T8:8). Under such circumstances, the
limbs would be stacked in a pile far enough away from the road to be safe for
motorists (T6:84-85). In any event, the limbs would not be left on the side of
the road for more than 48 hours (T8:8). Eichler viewed the photographs in
evidence that purportedly represented the accident location. In the absence of
reference markers, Eichler could not even identify the roadway as a state road
It is well settled that the State has a duty to maintain its roadways in a
reasonably safe condition and that duty extends to trees adjacent to the roadway
which could reasonably be expected to result in injury or damage to the users of
the roadways (
see Harris v Village of East Hills
, 41 NY2d 446; Asnip v State
of New York
, 300 AD2d 328; Guido v State of New York
, 248 AD2d 592).
The duty to "properly inspect and correct [the potential danger] by trimming or
removal is essential to proper maintenance" of trees by the State (Edgett v
State of New York
, 7 AD2d 570, 574). Liability, however, does not attach
unless the State had actual or constructive notice of the potentially dangerous
condition and then failed to take reasonable measures to correct the condition
(see Leach v Town of Yorktown
, 251 AD2d 630). "In order to
constitute constructive notice, ‘a dangerous condition must have been
visible and apparent
and must have existed for a sufficient length of time
prior to the accident to permit [the] defendant's employees to discover and
it' " (Fowle v State of New York
, 187 AD2d 698, 699 [citations
omitted; emphasis in original]).
The mere happening of an accident on a state roadway does not render the State
see Tomassi v Town of Union
, 46 NY2d 91; Brooks v New York
State Thruway Auth.
, 73 AD2d 767, affd
51 NY2d 892). It is
claimant's burden of establishing that the State was negligent and that such
negligence was a proximate cause of the accident (see Bernstein v City
of New York
, 69 NY2d 1020, 1021-22, Marchetto v State of New York
179 AD2d 947; Demesmin v Town of Islip
, 147 AD2d 519).
contends that the evidence established that defendant created the dangerous
condition by permitting tree limbs to be left on the side of the road for nearly
four months from April 1997 and that this condition was a proximate cause of
claimant's accident. Upon consideration of all the evidence, including
listening to the witnesses testify and observing their demeanor as they did so,
the Court finds that the evidence was insufficient to establish that defendant
either created the condition or should have been aware of it (see
Sellitto v State of New York
250 AD2d 754 [claimant failed to prove that
the State either caused a dangerous condition or had notice of a recurrent
dangerous condition existing in a specific area]). On the record presented,
including the testimony of Osso and Eichler, it would be highly speculative to
find that defendant left the wood on the side of the roadway for approximately
four months. Significantly, there was no proof of any prior accidents or
complaints involving tree limbs in the area of claimant's accident (see
Vega v Jacobs
, 84 AD2d 813 [proof of prior accidents at the same place
and under substantially similar circumstances may be offered on the issues of
foreseeability of danger and notice]).
Additionally, claimant failed to establish that any negligence attributable to
defendant was a proximate cause of his accident, i.e.:
"[w]here the facts proven show that there are several possible causes of an
injury, for one or more of which the defendant was not responsible, and it is
just as reasonable and probable that the injury was the result of one cause as
the other, plaintiff cannot have a recovery, since he has failed to prove that
the negligence of the defendant caused the injury."
(Ingersoll v Liberty Bank of Buffalo
, 278 NY 1, 7; see
also Bernstein v City of New York
, 69 NY2d 1020, supra
Marchetto v State of New York
, 179 AD2d 947, supra
was bound to see that which should have been seen with the proper use of his
senses (see Weigand v United Traction Co.
, 221 NY 39; Sappleton
v Metropolitan Suburban Bus. Auth.
, 140 AD2d 684). He was obligated to
operate his car at a rate of speed and in such a manner of control as to avoid
an accident (see Woolley v Coppola
, 179 AD2d 991, 992). In light
of claimant's testimony, which fails to clearly state, among other things, that
claimant had an accident on the date specified in the claim, it would be highly
speculative to find that any negligence of defendant contributed to the cause of
claimant's accident. The evidence presented was insufficient to establish a
causal relationship between the State's alleged negligence and claimant's
accident (see Brooks v New York State Thruway Auth.
, 51 NY2d 892,
Defendant's motion to dismiss, upon which decision was reserved, is now
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 100584.