New York State Court of Claims

New York State Court of Claims

PARRINELLO v. THE STATE OF NEW YORK, #2003-029-312, Claim No. 100422


Synopsis


Collision between claimant's vehicle and State Troopers' vehicle. Court finds Troopers were in route to the scene of an accident and in emergency mode of operation. Therefore, VTL § 1104 is applicable and the reckless disregard standard also applies. The Court finds claimant failed to meet burden of proof and the claim is dismissed.

Case Information

UID:
2003-029-312
Claimant(s):
FRANCIS C. PARRINELLO and DEBRA PARRINELLO The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
PARRINELLO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100422
Motion number(s):

Cross-motion number(s):

Judge:
STEPHEN J. MIGNANO
Claimant's attorney:
Spiegel Brown Fichera Acard & Vasti, LLPBy: Thomas F. Vasti, III, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Barry Kaufman, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 18, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
This claim for personal injuries arises from a two-vehicle collision which occurred at the intersection of State Route 22 (hereinafter Rt. 22) and Broadway in Amenia, New York on June 6, 1997. The trial was bifurcated and this decision deals only with the issue of liability.

The evidence at trial established that at about 4:00 p.m. on June 6, 1997 the claimant[1]
was driving a Dodge minivan northbound on Rt. 22 approaching the area in which the accident occurred. As he approached the intersection of Rt. 22 and Broadway, he activated his left turn signal and began to make a left turn across the southbound lane of Rt. 22 to enter Broadway[2]. At that time, a marked New York State Police vehicle with its emergency lights and siren on, also traveling northbound, was passing claimant's minivan on the left, in the southbound lane of Rt. 22[3]. The inevitable collision occurred.
Trooper Robert Murphy was the driver of the police vehicle involved in the collision and Trooper David Denzel was sitting in the front passenger seat at the time of the collision. Each Trooper testified at a deposition[4]
that at the time of the accident they were responding to a Dutchess County Sheriff's radio dispatch for police assistance at a vehicular accident involving personal injuries at the intersection of Rts. 22, 44 and 343 in Amenia, which is located approximately one-half mile north of the subject accident.
Trooper Murphy testified that on the day of the accident he was assigned to the Dover Plains substation, had worked there for almost four years and was very familiar with Rt. 22. He stated that the substation is also on Rt. 22, about six miles south of Broadway in Amenia. He testified that on June 6, 1997 his shift started at 3:00 p.m. and at about 3:30 p.m. he and Trooper Denzel left the substation to pick up a State Police vehicle that was being repaired at a shop approximately three miles north of the substation.

Trooper Murphy stated that at approximately 4:00 p.m. a radio transmission was received from the Dutchess County Sheriff's Department advising that there was a three-car personal injury accident at the intersection of Rts. 22 and 44 in Amenia. The witness stated he activated the vehicle's emergency lights and siren and Trooper Denzel acknowledged receipt of the transmission saying that he and Murphy would respond to the scene. The transmission was received at about the time the Sheriff's Department changes shifts and he thought there would be few, if any, Deputies on the road. He further stated that the radio transmission did not indicate the time of that accident. He also testified that the repair shop is located about three miles south of Rt. 44. The Troopers responded at speeds up to 75 or 80 MPH but decelerated the vehicle when appropriate. Trooper Murphy stated that at the time of the collision with claimant's vehicle he was traveling about 45 MPH.

Trooper Murphy testified the weather conditions were dry and clear and the traffic on the road was medium. He stated he passed several vehicles as he drove north. When he reached the area of Lake Amenia Road, he saw claimant's vehicle somewhere south of the bridge (see Exhibit 28, DOT Photo Log (Photographs 90-93). There was one car between the police vehicle and the minivan. Trooper Murphy testified that at that time his speed was between 50 and 55 MPH.

Trooper Murphy stated he passed the middle vehicle[5]
somewhere in the vicinity of the bridge. He also had been watching the minivan and did not observe it taking any particular action. When passing the Adhers' vehicle he could see the minivan and there was no traffic in the southbound lane. He passed Adhers at approximately 45 MPH and although the minivan was slowing, it did not have the brake lights or any signal lights illuminated.
Trooper Murphy testified that as he passed Adhers he had not yet decided to pass the minivan and traveled straddling the north and southbound lanes when it appeared the van was slowing. As there was no traffic in the southbound lane, he decided to pass the minivan. He stated that the speed of the minivan decreased further and still had no directional signals on. However, as the front bumper of the police vehicle reached the rear wheel of the minivan, the minivan began to veer left. Trooper Murphy also veered left and began to slow down. He stated that the minivan continued to veer left as did the police vehicle, at which point the police vehicle was at the western edge of the roadway and the vehicles collided just south of the beginning of the intersection of Rt. 22 and Broadway in the middle of the southbound lane of Rt. 22. The passenger side of the police car and the driver's side of the minivan collided but the vehicles were not connected. Both vehicles continued in a northwesterly direction and came to rest in the grass and reeds off the western (left) side of Rt. 22.[6]

Trooper Murphy stated that the police vehicle hit a milepost sign and a plaza sign. The milepost sign was severed and penetrated the windshield of the police vehicle. From the point of impact, the police vehicle traveled about 190 feet (see Exhibit 5).

At the time of the deposition, Trooper Murphy stated he thought the accident with Mr. Parrinello happened in the vicinity of 4:10 p.m but that the time was based upon what was written in the State Police accident report.

Before exiting the vehicle Trooper Murphy checked on Trooper Denzel and at that point, they heard a transmission from a Deputy Sheriff stating that he had arrived at the scene of the Rts. 22 and 44 accident. Trooper Murphy advised the Deputy that he would not be responding because he had been involved in a motor vehicle accident. Trooper Murphy thereafter checked on Mr. Parrinello and in the discussion, Mr. Parrinello stated he had not been paying attention and had the radio on loud.

Trooper Murphy's testimony was consistent with the information contained in the memorandum dated June 7, 1997 that he sent to the Troop K Troop Commander (Exhibit 6).

Trooper Denzel's testimony regarding the sequence of events was, for the most part, consistent with the testimony of Trooper Murphy.

Trooper Denzel could not recall the time the two Troopers left the substation but he estimated it to be somewhere between 3:00 and 4:00 p.m. Trooper Denzel did not recall the time of the accident, but estimated it to be around 4:00 p.m.

Trooper Denzel stated that as he and Trooper Murphy were driving to the repair shop, they heard the transmission from the Sheriff's Department regarding a personal injury accident at the intersection of Rts. 22, 44 and 343. They responded because it was around the time of the shift change at the Sheriff's Department.

Trooper Denzel further testified that Trooper Murphy activated the lights and siren. He could not recall whether he or Murphy reported the decision to respond to the accident scene. Also, as they proceeded north they passed a number of northbound vehicles (Exhibit 2, Page 55). During this time, Trooper Denzel did not hear any other transmission regarding that accident.

Trooper Denzel testified the speed limit in the area of the accident is 55 MPH until it changes to 35 MPH some distance north of the intersection of Rt. 22 and Broadway. At some point south of the strip mall, he remembered seeing the two northbound vehicles but could not remember the exact location (Exhibit 2, Pages 64-67).

Trooper Denzel testified they passed the first vehicle (Adhers' vehicle) without incident. After passing the first vehicle they were about three car lengths behind claimant's minivan. As they approached the minivan, it did not have any rear lights, brake lights or turn signal operating. At that point he could still hear the police vehicle siren (Exhibit 2, Page 72). The police vehicle slowed by about 5 to 10 MPH. When the minivan did not yield to the police vehicle, Trooper Murphy pulled into the southbound lane to pass it. The two vehicles were traveling side-by-side but before completing the pass, the minivan turned to the left and the two vehicles collided. The two vehicles were stuck together for a short distance and proceeded northbound until they came to rest.

Trooper Denzel's testimony was consistent with his June 7, 1997 memorandum to the Troop K Troop Commander regarding the instant accident (see Exhibit 7).

Claimant, Francis Parrinello, testified at trial. He stated that on the day of the accident he had been driving from New Jersey to his home in Amenia. He stated that he left New Jersey at approximately 2:00 p.m and that during his trip home, up until the accident, he listened to the radio and cassette tapes. He described the volume of the music to be moderate - loud enough for him to hear the music even though several of the minivan's windows were open. He also testified that he was able to hear his pager inside the vehicle over the radio. Mr. Parrinello described the traffic on Rt. 22 as moderate, but as he approached Amenia there was very little traffic on the road.

Mr. Parrinello testified that he activated his left-turn signal when he was north of Lake Amenia Road and south of the bridge. He also testified that as he proceeded toward the bridge he did not see any traffic ahead. After he crossed the bridge, he started to brake in anticipation of his turn onto Broadway. He testified that he waited until the double yellow line ended at the intersection of Rt. 22 and Broadway to make the turn. He denied cutting across the yellow line. Claimant testified that he slowed in anticipation of the turn onto Broadway but did not feel any need to stop because the only traffic heading southbound was several hundred yards to the north and posed no danger. He also testified that his vehicle was fully engaged in the turn, entirely in the southbound lane when he heard a police siren, which he described as a single blip sound, at the exact moment of the collision.

Mr. Parrinello testified that the front of the police vehicle hit his vehicle pushing his minivan 180 degrees around to face east. However, despite being pushed and spun to the right, he testified that his vehicle continued in a north by northwest direction, which he described as "surfing sideways", and that his vehicle continued in that fashion onto the grassy area. Then he testified that his vehicle came back into a position facing north and it continued straight in a north by northwest direction until it came to rest on the west side of Rt. 22 in a grassy area beyond the intersection of Rt. 22 and Broadway. The witness also stated that after the collision he saw the emergency lights of the police car flashing.

Mr. Parrinello testified that immediately after the accident he spoke with one of the Troopers involved in the accident and that the Trooper said he did not see the turn signal on the minivan because the sun was in his eyes. Mr. Parrinello testified that as he was driving north on Rt. 22, there was no glare from the sun.

Mr. Parrinello testified he stayed in the vehicle until the rescue personnel took him out and brought him to the hospital. At the hospital, State Police Sergeant Murphy[7]
approached him about signing some paperwork, which he refused to do.
On cross-examination, Mr. Parrinello stated that he was focused on the traffic ahead of him and not on the traffic behind him.

Verva J. Adhers[8]
testified that on June 6, 1997 she was traveling north on Rt. 22 in the Town of Amenia on her way home from work. She stated that she got off from work at 4:00 p.m. and she had driven about ten minutes when she witnessed the instant accident at the intersection of Rt. 22 and Broadway. The witness stated that as she got to the area of the ice cream stand, south of Broadway (see Exhibit 28, Photo Log, Photographs 93 and 94) she was traveling about 40 to 45 MPH when she heard a siren. Mrs. Adhers stated she turned her head to the left and saw a State Police vehicle parallel to her, going past her, heading north in the southbound lane. She was unable to estimate the speed of the police vehicle.
Mrs. Adhers testified that claimant's minivan was about three car lengths in front of her as the police vehicle went past. The minivan was in the northbound lane of Rt. 22 approaching the intersection of Broadway. The witness stated that she saw a signal light activated on the minivan after the police vehicle had already passed the back of the minivan. It was her belief that the driver of the police vehicle could not see the minivan's turn signal. At that point, she pulled her car off the road and stopped because she knew there was going to be a collision and did not want to be involved in it.

Mrs. Adhers could not recall if the police vehicle's emergency lights were on but she remembered hearing the siren. She said that the police vehicle and the minivan were about even when she saw the minivan's tires turn to the left and hit the police vehicle. She also saw the police vehicle move to the left but was not sure if this was an evasive move or if it was after the first collision. She stated she thinks the two vehicles collided three separate times as they continued up Rt. 22, across the intersection of Broadway and eventually come to a rest in a grassy area on the west of Rt. 22.

Alicia Whitely[9]
was called as a witness by claimant. On June 6, 1997, at the time of the subject accident, Mrs. Whitely was at the ice cream stand (known as Fudgy's) in the strip mall off Rt. 22 just south of the intersection with Broadway.
The witness stated that she heard a police siren going from south to north. She does not recall seeing the police vehicle but the siren was continuous and steady. She stated that she then heard a crash and saw that a State Police vehicle and a white minivan had collided. She did not observe any of the events prior to the collision.

Claimants assert that no emergency situation existed which would provide the defendant with qualified immunity under Vehicle and Traffic Law (hereinafter VTL) § 1104. Immunity is not available where the driver was not responding to an emergency and in such circumstances liability may be predicated on the principles of ordinary negligence (see,
Mattera v Avis Rent A Car Sys., 245 AD2d 274) upon which claimants clearly prevail in this matter. Thus, claimants assert that VTL § 1104 does not apply and Trooper Murphy should be held to an ordinary negligence standard. In the alternative, claimants assert that even if VTL § 1104 applies, the Trooper's actions were reckless and without due regard for the safety of others.
VTL § 1104 provides qualified immunity from civil liability to the driver of an authorized emergency vehicle when he or she is operating the vehicle in an emergency situation. However, this privilege does not:

"relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others" (VTL § 1104 [e]).


The term "emergency operation" is defined by VTL § 114-b to include:


"[t]he operation...of an authorized emergency vehicle, when such vehicle is engaged in...responding to, or working or assisting at the scene of an accident...police call...or other emergency..."


Additionally, VTL § 101 provides that every police vehicle is an "authorized emergency vehicle". Furthermore, the driver of an "authorized emergency vehicle" is exempt from certain "rules of the road" under VTL § 1104 (
Criscione v City of New York, 97 NY2d 152, 156; Riley v County of Broome, 95 NY2d 455, 462).
Claimants spent a great deal of time at trial attempting to establish that the accident at the intersection of Rts. 22, 44 and 343, to which the Troopers claim to have been responding at the time of this accident, was a minor property damage accident and had been completely cleared prior to the subject collision. Thus, claimants assert that no legitimate emergency situation existed at the time of the subject accident and Trooper Murphy's actions as the driver of the State Police vehicle are not protected by VTL § 1104.

To establish that the accident at Rts. 22, 44 and 343 had been cleared prior to the subject accident, claimants offered a time-line of events beginning at the time of the first accident and extending to the time of the subject accident. Claimants contend that the subject accident occurred between 4:18 and 4:20 p.m. and not at 4:10 p.m. as asserted by the State Police.

Dutchess County Deputy Sheriff Thomas Cuddeback was called as a witness by claimants. He testified that he has been employed as a Dutchess County Deputy Sheriff for 16 years and has been assigned to the Amenia substation for 10 to 12 years. He stated that his shift began at 4:00 p.m. on June 6, 1997. He could not recall what time he arrived at the substation on that day but estimated it was at about 3:30 p.m. He stated that at some point after his shift started he received a dispatch from the Sheriff's Department Dispatcher to respond to the scene of a personal injury automobile accident at the intersection of Rts 22 and 44 in Amenia[10]
. He arrived at the scene and immediately notified the Sheriff's Department of his arrival but he could not recall how long it took him to arrive or the time he arrived there. At the time he arrived he believes Amenia Fire personnel were already there. The witness stated that while he was on his way from the substation to the Four Brothers accident scene he spoke to an officer in a State Police vehicle. He does not remember if he contacted the Trooper or the Trooper contacted him and he does not recall the substance of the conversation or who the Trooper was. After arriving at the Four Brothers accident scene he advised the Troopers that he had arrived at the scene and was investigating. The Trooper told him that he was involved in his own accident and would not be responding to the Rt. 44 accident. The witness did not know what time this radio transmission was made.
Deputy Cuddeback referred to Exhibit 31, the Dutchess County Sheriff's Department Incident Report of the Four Brothers accident, which indicates that the accident occurred at 3:45 p.m. (see also Exhibit 32, MV 104A [Accident Report]) and that it was reported to the Sheriff's Department at 3:50 p.m. by telephone. According to the AEGIS Public Safety System Incident Report (Exhibit 62), the Four Brothers accident was reported at 3:50 p.m. The witness was dispatched to the scene at 4:16:54 p.m. and he arrived at the scene at 4:17:27 p.m. or 33 seconds after he was dispatched.

Claimants assert that Exhibit 62 is unreliable based upon (1) the AEGIS Public Safety System record of a Dutchess County 911 Dispatch establishing that the 911 Dispatcher received a call at 3:48:48 p.m. regarding the Four Brothers Accident and that the Amenia Fire Department was dispatched to the scene at 3:49:14 p.m. (see Exhibit 60) and (2) the testimony of Amenia Fire Department Chief John Macura and Captain Larry Murphy that Deputy Cuddeback was at the scene of the Four Brothers accident before 4:00 p.m.

Both Chief Macura and Captain Murphy were called by claimants. They each testified that they received pages at 3:48 p.m. on June 6, 1997 from the Dutchess County Emergency Response System (911 Dispatcher) regarding an automobile accident at Rts. 22 and 44. Chief Macura testified that he arrived at the Four Brothers parking lot approximately two minutes later and Captain Murphy said it took him about six minutes to arrive at the scene. Chief Macura stated when he arrived at the scene there were no police vehicles present and that Deputy Cuddeback arrived at the scene at approximately 4:00 p.m. Captain Murphy's testimony was that he arrived at the scene at approximately 3:55 p.m. and that Deputy Cuddeback was present when he arrived.

Given the discrepancies in both the testimony and the documentary evidence, the Court is unable to establish the exact time of either accident. However, the exact minute the subject accident occurred is not dispositive of the issue of whether the State Police were properly responding to "an emergency situation" at the Four Brothers accident

On redirect, Chief Macura testified that he informed Deputy Cuddeback that he (the Fire Chief) was leaving the scene of the Four Brothers accident and the scene was cleared about one minute
after he heard a siren and a crash south of his location. About two minutes later he received a 911 dispatch to respond to the scene of the subject accident (see Exhibit 61). Based upon this testimony the State Police had every right to believe their presence was still necessary at the Four Brothers accident scene regardless of the exact time that the subject accident occurred.[11] No testimony was offered by claimant to refute this belief.[12]
Claimants assert that the deposition testimony of Troopers Murphy and Denzel is inconsistent in certain respects, such as to the speed and position of their vehicle when passing Mrs. Adhers' vehicle and that the Court should draw a negative inference based upon the State's failure to present a direct case and offer the testimony of these Troopers. However, the Court notes that the burden of proof is upon claimants and the State is not required to present a direct case if its counsel believes claimant has failed to sustain his/her burden of proof. The Court will not draw any negative inference based upon the State's decision not to put forward a direct case especially where their deposition testimony was already admitted. Presumably, claimant could have subpoenaed the Troopers and requested to treat them as adverse witnesses for purposes of cross-examination.

The Court has weighed the testimony of the witnesses and has no basis to discount the testimony of Troopers Murphy and Denzel that they heard a radio transmission from the Dutchess County Sheriff's Department regarding a personal injury automobile accident and that the Troopers indicated they would respond to the scene. The Court accepts Trooper Denzel's statement (contained in Exhibit 7) that they acknowledged receipt of the transmission and indicated they would respond. Otherwise, there would have been no reason for Deputy Cuddeback to "call them off" upon his arrival at the Four Brothers scene.

Pursuant to VTL § 1104 (c), all authorized emergency vehicles,
except police vehicles, must be operating a siren and at least one lighted red light for the exemption of the statute to apply. Consequently, the exception applies to all police vehicles involved in an emergency operation even if the officer does not employ emergency red lights and the siren (see, Cerruti v State of New York, Claim No. 90028, filed August 20, 1997, McNamara, J.). The incident here involved a police vehicle responding to the scene of an accident (see VTL § 114-b) which, according to the unrefuted testimony of Chief Macura and Deputy Cuddeback, was not cleared until after the instant accident. Therefore, this Court must find that the State Police vehicle was involved in an emergency operation and the "reckless disregard" standard applies (see, Criscione v City of New York, 97 NY2d 152 at 158; Szczerbiak v Pilat, 90 NY2d 553 at 556-557; Saarinen v Kerr, 84 NY2d 494 at 500-501).[13]
As a matter of legislative policy, the "reckless disregard" standard is extremely difficult for any claimant to attain. It has been defined as "the conscious or intentional doing or an act of an unreasonable character in disregard of a known or obvious risk so great as to make it highly probable that harm would follow,
and done with conscious indifference to the outcome" (Szczerbiak v Pilat, 90 NY2d 553, supra at 557 [emphasis supplied]; see also Saarinen v Kerr, 84 NY2d 494 supra at 501) .
There is no proof in the evidence adduced at trial demonstrating that Trooper Murphy's operation of his police vehicle was an intentional act of an unreasonable character done with conscious indifference to the outcome.

According to VTL § 1144 (a), claimant was required to yield the right-of-way and, among other precautions, stay clear of the intersection upon the approach of an authorized emergency vehicle (
Tobacco v North Babylon Fire Dept., 251 AD2d 398). For whatever reason, claimant failed to do so. Trooper Murphy stated that as his vehicle approached claimant's minivan, the minivan slowed down, he did not see any turn signal on the van so he pulled into the southbound lane of Rt. 22 to pass it. According to Mrs. Adhers, the reason Trooper Murphy did not see the turn signal on claimant's minivan was because Mr. Parrinello engaged the signal after the police vehicle was past the back of the minivan. The Court finds Mrs. Adhers' disinterested testimony on this point more persuasive than claimant's testimony that he activated his left turn signal south of the bridge. As a result, I can find no evidence that Trooper Murphy knew, or should have known, the intentions of claimant.
Under the facts presented at trial, there is no rational basis upon which to conclude that Trooper Murphy operated his vehicle with the type of knowing disregard required to establish defendant's liability under VTL § 1104 (e). Absent such showing, the claim must be, and is, hereby dismissed. In light of the Court's decision, the State's counterclaim is dismissed as moot. All motions made a trial, upon which the Court reserved decision, are now denied. The Chief Clerk is directed to enter judgment accordingly.


September 18, 2003
White Plains, New York

HON. STEPHEN J. MIGNANO
Judge of the Court of Claims




[1] As the claim of Mrs. Parrinello is derivative in nature, unless otherwise indicated, all references to claimant will be to Mr. Parrinello.
[2] According to the witnesses, Broadway intersects with Rt. 22 at about a 45 degree angle.
[3] The evidence established that Rt. 22 is a two-lane roadway with one lane for northbound traffic and one lane for southbound traffic.
[4] Neither Trooper appeared at trial. After a dedicated hearing, redacted copies of the transcripts of the deposition testimony of Trooper Murphy and Trooper Denzel were admitted into evidence at the trial as Court Exhibits 1 and 2 respectively. The parties stipulated to the entry of the Troopers' testimony in this form.
[5] Identified during this trial as the vehicle driven by Verva Adhers a/k/a Verva Parker.
[6] The location of the vehicles after the accident with respect to Rt. 22 and each other, as well as the condition of the vehicles, is shown in Exhibits 12-22).
[7] Not Trooper Robert Murphy.
[8] On June 6, 1997, Mrs. Adhers was known as Verva J. Parker. Since the date of the accident she has married. The Court will refer to this witness as Mrs. Adhers.
[9] On June 6, 1997, Mrs. Whitely was known as Alicia Rebideau. Since that date, she has married. The Court will refer to this witness as Mrs. Whitely.
[10] It was established at trial that a pizzeria known as Four Brothers was located at the intersection and this accident was also referred to by the witnesses as the "Four Brothers accident".
[11] This sequence is also corroborated by the testimony of Deputy Cuddeback, discussed, supra.
[12] The Court also notes that Chief Macura's testimony on this point is quite persuasive in view of the fact that he was clearly upset with the actions of the Troopers.
[13] As set forth by the Court of Appeals in Criscione v City of New York, 97 NY2d 152, supra, this finding is mandated on the objective basis that the response to an accident was an "emergency response" regardless of the state of mind of the Troopers at the time.