New York State Court of Claims

New York State Court of Claims

MOUNDROUKAS v. THE STATE OF NEW YORK, #2003-010-015, Claim No. 100584


One car motor vehicle accident dismissed because failure of credible evidence to establish defendant was negligent or caused or contributed to the happening of the accident.

Case Information

SARANTIS MOUNDROUKAS AND CHRISOULA MOUNDROUKAS The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

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

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 3, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Sarantis Moundroukas, hereinafter
claimant,[1] 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 them (T6:19).[2] 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?" (id.). He responded "There was a big, a wood right in the street" (id.). 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 (T6:18).
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 precise location.
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 unresolved.

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 202 (T8:37-38).

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 (T8:9).

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 remedy
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 liable (
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). Claimant 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, 893).
Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


June 3, 2003
White Plains, New York

Judge of the Court of Claims

[1] The claim of Chrisoula Moundroukas, claimant's wife, is derivative.
[2] "T6", "T7", and "T8" refer to the trial transcripts for January 6, January 7, and January 8, 2003, followed by a page reference.