SOUILLIARD v. THE STATE OF NEW YORK, #2003-030-016, Claim No. 103671
Claim dismissed. Claimant alleged Defendant's failure to clear obstructive
foliage at intersection that allegedly blocked stop sign - proximate cause of
her injuries in two car accident. Other driver who failed to stop at stop sign
was at fault.
SHARON LOUISE SOUILLIARD
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
THOMAS H. SCUCCIMARRA
LARKIN, AXELROD, TRACHTE & TETENBAUM, LLPBY: GUS P. FOTOPOULOS, ESQ.
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
May 19, 2003
See also (multicaptioned
Sharon Louise Souilliard, the Claimant herein, alleges in Claim Number 103671
that she sustained physical injury as the result of a motor vehicle accident
wherein a vehicle in which she was riding as a passenger was struck by another
automobile at the intersection of Route 17K and Bracken Road in the Town of
Montgomery, Orange County, on July 23, 1999. She alleges that the Defendant
failed in its duty to maintain its highways in a safe condition, specifically by
failing to properly clear obstructing foliage at the subject intersection,
blocking a stop sign. She also alleges that the Defendant created a dangerous
condition by negligently installing the stop sign at the intersection prior to
the accident. Trial on the issue of liability was held on February 24 and 25,
DEFENDANT'S MOTION TO STRIKE
As an initial matter, Defendant moved to strike the testimony of Sergio Lupian,
a witness who had not been disclosed in the Claimant's Bill of Particulars as a
notice witness [
, Civil Practice Law and Rules §3043(a) (4) and (5)], although
his name - and the purpose of his testimony - appeared on the witness list
provided by Claimant at a trial preparation conference held on February 4, 2003.
In her Bill of Particulars, Claimant had indicated that both actual and
constructive notice was claimed, but did not particularize to whom, by whom,
how, when and where said actual notice was given as it was unknown at the time.
The Claimant was also unable to state how long constructive notice of conditions
existed or when any dangerous condition commenced, except upon information and
At the trial preparation conference, Claimant provided a witness list including
Mr. Lupian's name. He was described on the list as a driver involved in a prior
accident on May 19, 1999 who did not see the stop sign. The Order of the Court
providing for the trial preparation conference directs counsel to raise any
evidentiary issues that may arise at trial at the conference. Notably,
Defendant never indicated that the inclusion of Mr. Lupian on the Claimant's
witness list was a surprise. Indeed at trial, a certificate of conviction
certified on February 4, 2003 regarding Mr. Lupian was proffered by the
Defendant and admitted as Defendant's Exhibit "E". Moreover, Claimant's counsel
indicated during oral argument on the trial motion to strike the testimony that
this witness was discovered in materials furnished by the Defendant as part of
consent discovery, although he was not positive as it might have been furnished
in litigation pending in Supreme Court.
A bill of particulars in a personal injury case is sufficient if it provides
"...an adequate description of the location of the accident, the acts or
omissions of the defendants constituting negligence and the manner in which the
defendants obtained notice of the dangerous condition..."
]. Liga v Long Island Rail Road
AD2d 566 (2d Dept 1987). Claimant "...is not required to elect between a claim
of actual or constructive notice, but can properly claim that the defendant had
both (see, e.g., Gordon v American Museum of Natural History, 67 NY2d 836,
837, 492 N.E.2d 774)...
[and may] set forth in the bill of particulars his or
her lack of present knowledge of the exact identities of the agents, servants or
employees which were given actual notice of the dangerous condition, and these
specifics can be alleged in a supplemental bill if, after discovery, the
plaintiff acquires the information....(citation omitted)
." Jaiman v
, 178 AD2d 508 (2d Dept 1991).
It is axiomatic that the purpose of a bill of particulars is to amplify the
pleadings, limit the proof and avoid surprise at trial.
, Civil Practice Law and Rules §§3041,3042, 3043;
Scalone v Phelps Memorial Hospital Center
, 184 AD2d 65, 76 (2d Dept
1992); Graves v County of Albany
, 278 AD2d 578 (3d Dept 2000); cf.
Hayes v Kearney
, 237 AD2d 769 (3d Dept 1997). In Acunto v
, 260 AD2d 787, 788-789 (3d Dept 1999), a case cited by Defendant in
support of its motion to strike Mr. Lupian's testimony, the Appellate Division
granted a motion to preclude a treating physician's testimony concerning the
plaintiff's arthritis - which had purportedly developed as a result of his
injuries - saying that although the arthritis was not disclosed in the
plaintiff's bill of particulars, "...[s]uch evidence...may be introduced where
it flows immediately and necessarily from the information conveyed in the bill
of particulars...(citations omitted)
or where the record reveals that the
defendant should have known of such injury or condition....(citations
." Ultimately, the Court determined that the testimony should not
have been allowed since arthritis was not a condition that immediately and
necessarily flowed from the injuries that were set forth in the bill of
particulars, nor did the medical information found elsewhere in the record
sufficiently apprise the defendant and avoid prejudice. See, also
Chapman v State of New York
, 227 AD2d 867, 868 (3d Dept
In this case, however, the Court would be hard pressed to find that Defendant
was either surprised or genuinely prejudiced by the offer of Mr. Lupian's
testimony. First, at the very latest Defendant learned of Mr. Lupian's
existence slightly less than a month before trial at the trial preparation
conference. More likely, the Defendant knew or should have known of his
existence given that his was the only other accident at this intersection - as
the proof had it - in the year 1999. Second, since the Defendant offered Mr.
Lupian's certificate of conviction - dated the same day as the trial preparation
conference - the State clearly took steps to ready itself for his testimony. As
noted, Defendant never raised the lack of notice at the trial preparation
conference. Indeed, at the same conference a police accident report of Mr.
Lupian's accident was marked for identification and reviewed by both counsel
together with the associated certificate of conviction, as well as an additional
certificate of conviction regarding the other driver involved in Mr. Lupian's
accident. Finally, the underlying reasons for preclusion simply do not lie
here. There is no genuine prejudice or surprise.
With respect to undisclosed photographs taken by Mr. Lupian and a friend, and
admitted over objection into evidence as Claimant's Exhibits "29" through "41,"
similar considerations obtain. Mr. Lupian testified that he was served with a
subpoena to appear as a witness perhaps two weeks before trial. He said that
counsel for Claimant had not had any direct conversation with him until the
Saturday before trial. The conversation was over the telephone. At the earliest,
this was when counsel's office was made aware of the fact that Mr. Lupian and a
friend had re-visited the scene of his accident and taken photographs. Indeed,
counsel for Claimant did not see the photographs themselves until the day of
trial when Mr. Lupian appeared pursuant to subpoena. Mr. Lupian was subject to
complete and thorough cross-examination both as to the substance of his
testimony and the photographs taken. Accordingly, the Court does not find that
there is prejudice with respect to these photographs either.
FINDINGS OF FACT
Defendant stipulated to jurisdictional responsibility for maintenance of the
stop sign at the location where this accident occurred. The stop sign is placed
on Bracken Road - which is a Town of Montgomery road - at its t-shaped
intersection with Route 17K - a State road. Bracken Road is the trunk of the
"T", and 17K is the top of the "T."
As discussed, Sergio Lupian, a driver involved in an accident at the same
intersection on May 19, 1999, testified. He said that on the morning of May 19,
1999 he was proceeding north on Bracken Road toward Route 17K, and failed to
stop at the stop sign at the T-intersection of the two roads. As a result, he
drove out in front of a vehicle traveling east on Route 17K and was struck. In
the police accident report, it is noted that he claimed to have not seen the
stop sign. [
, Claimant's Exhibit "23"]. At trial he asserted he did not see the
sign because a large tree obscured it. Nonetheless, he was given a ticket for
failing to stop at a stop sign.
Two or three days after his accident, Mr. Lupian returned with a friend and
took photographs. He took them to use in local court to defend his claim that
the stop sign was not visible. As he admitted on cross-examination, the
photographs were taken with the view toward establishing that the sign was not
visible. Clearly, with respect to some of the photographs, the vantage point
was deliberately chosen to that end. [
, Claimant's Exhibits "29," "30" and "31"]. With respect to
those photographs, Mr. Lupian indicated that they were taken with a telephoto
lens from the grass to the right of the shoulder of the northbound side of
Bracken Road. Additionally, he was somewhat unsure as to which photographs he
or his friend took, but could report that they were the only photographers on
One photograph that Mr. Lupian estimated was taken from approximately 200 feet
away from the stop sign, shows the tree to be some distance in front of the sign
and to the left, and also shows the sign to have the familiar, octagonal
configuration of a stop sign, as well as its red and white colors. [Claimant's
Exhibit "32"]. It was taken toward the right-most white line of northbound
Bracken Road: not precisely the driver's view. Another photograph taken slightly
further north - and more from the driver's viewpoint since it was taken toward
the middle of the road - still shows the sign. [Claimant's Exhibit "41"]. It was
his testimony, however, that on May 19, 1999 he did not see the sign.
Mr. Lupian also identified a photograph taken after Claimant's accident,
stating that it, too, was a fair and accurate
of Bracken Road in a northbound direction heading toward Route 17K. [See
Claimant's Exhibit "21"]. In this photograph some sort of red and white sign is
visible to the right and back of the tree.
William Loving, the driver of the car that struck the car in which Claimant was
a passenger, testified. He stated that on the morning of July 23, 1999 he had
been traveling northbound on Bracken Road - a road he had traveled on more than
one occasion, usually as a passenger - heading toward his brother-in-law's
house, intending to make a right turn onto Route 17K. His daughter was in the
passenger seat, and he was listening to her talk. From his previous travel on
Bracken Road, he was aware that there was a stop sign - or perhaps a yield sign
- at the intersection with Route 17K, but he was nonetheless surprised when it
"popped up" when he was "2 to 3 feet from the
He admitted that on that day he knew an intersection was coming from "a couple
of hundred feet away" and had slowed to "perhaps 30 to 35 miles per hour." When
the stop sign "was suddenly there," he put an arm across his daughter, applied
his brakes "extremely hard" and tried to make the right turn "to avoid the
vehicle...[he] was about to hit head on."
On later reflection, he said he realized that there was some kind of vegetation
obscuring the stop sign, but admitted that he had never stated this during the
proceedings surrounding this litigation, or in a still pending lawsuit
involving this same accident in which he is named as a defendant.
Mr. Loving pled guilty to a violation of 1172(a) Vehicle and Traffic Law,
failure to stop at a stop sign. He did not choose the option offered on the
plea form he mailed in of giving an explanation for his guilt.
Caroline Souilliard, the driver of the car in which Claimant was a passenger
and the Claimant's mother, also testified. At approximately 10:00 a.m. on July
23, 1999, she was proceeding eastbound on Route 17K on her way home. She first
perceived Mr. Loving's maroon colored car as she came alongside Bracken Road -
which was on her right as she was traveling. No sooner had she noticed the car,
when she realized "he's going to hit us." She recalled a heavy impact to her
car, "spinning it around in circles." Her "air bag came up," and she "kept
pressing on the brake to try to get the car to stop." The air bag prevented her
from seeing. The car came to rest on the westbound side of the road, with the
tail of the car on the eastbound side, on an angle. Mr. Loving's car was on the
westbound side headed into a guardrail. Photographs depicting the vehicles as
they came to rest at the scene of the accident were identified by the witness.
[Claimant's Exhibits "15"- "19"].
"Several days later" Caroline Souilliard took a photograph of the approach to
Route 17K on Bracken Road. [
, Exhibit "21"]. She testified that except for a new "stop ahead"
sign apparently installed by the local municipality the photograph fairly and
accurately depicted the intersection as it had been on the day of the accident.
The photograph shows a large tree, with some vine-like vegetation growing on its
trunk, beyond which some sort of red-colored sign can be seen. The grass
surrounding the tree and the red sign appears to have been recently mowed. She
indicated that the photograph was taken from her vantage point in the passenger
seat, and that she could not recall the distance she was from the intersection
when she took the photograph. She said she took the photograph to "prove you
can't see the stop sign." Later, she testified that she did not notice anything
about the vegetation on Bracken Road on the day of the accident both as she
drove - because she was paying attention to the road she was on - and after the
accident - because she was more concerned with ascertaining if her daughter had
Caroline Souilliard claimed to have been aware of the tree's existence for 10
years, and asserted that it blocked visibility of the stop sign, but could not
describe it as it was on July 23, 1999. She also identified the photographs
taken by Mr. Lupian as fair and accurate representations of the approach to
Route 17K on Bracken Road.
Barney Van Dyke, a Town of Montgomery employee responsible for mowing along the
shoulder of Bracken Road in the vicinity of the subject stop sign, testified
briefly. During the "season" - May to October - the Town would mow
approximately once per month, although many times the "State beat him to it."
Prior to July 23, 1999 the Town had mowed "two to three times." He calculated
the distance from the tree to the stop sign as "30 feet or more," and the
distance from the stop sign to Route 17K as 6 feet. He suggested that the State
must have mowed the area after May 19, 1999 and before July 23, 1999, given the
extent of overgrowth depicted in Mr. Lupian's photographs. Although he stated
that the photographs show some obstruction of the stop sign from some vantage
points, he also testified that he himself had never known of any problems with
visibility of the sign. [
, Claimant's Exhibits "29" - "41"].
Sharon Louise Souilliard, the Claimant herein, testified briefly as well. She
did not remember much surrounding the collision. She only recalled driving
along Route 17K, passing the "house on the right with the tubs on the side lawn,
just prior to Bracken Road," when she heard her mother say "we're going to get
hit." Thereafter she remembers getting out of the car, and sitting beside the
Peter Kosloski, an Assistant Resident Engineer of the Newburgh Residency for
the New York State Department of Transportation (hereafter DOT), testified
concerning his department's role in road maintenance in the State's right of
way, his own responsibilities in that regard, and the actual maintenance of the
subject intersection. From his investigation of DOT records, there was no
significant accident history at the intersection of Bracken Road and Route 17K.
No complaints regarding the lack of visibility of the stop sign at the
intersection were noted either. Prior to July 23, 1999, the crews responsible
for mowing and trimming the areas along Route 17K near Bracken Road had mowed
the shoulders twice in June and once in July. [
, Claimant's Exhibits "43" - "45"]. Although based on viewing Mr.
Lupian's photographs he agreed that the tree appeared to obstruct the stop sign,
and he would have recommended cutting it down, he also noted that the stop sign
was visible from some locations depending upon the distance. More
significantly, he said he would have a "hard time making a judgment" on trimming
or removing a tree - and whose job it would be to perform - from photographs
alone. The goal is to have "reasonable visibility," which does not necessarily
mean continuous visibility to the motorist as he approaches the intersection. He
noted that the stop sign had been reinstalled on September 11, 1997, as shown in
State records, at the same location. [See
A. Landolina, a police officer employed by the Town of Montgomery Police
Department since 1991, gave both Mr. Lupian and Mr. Loving tickets for failing
to stop at a stop sign after their respective accidents. [
, Claimant's Exhibits "23" and "11"]. He testified that he was very
familiar with Bracken Road because the Town of Montgomery Police Station is at
110 Bracken Road approximately one-half mile away from the intersection with
Route 17K. He could not recall whether there had ever been obstruction of the
stop sign at the intersection, and would have been obligated to report any
visibility problems had there been any.
On July 23, 1999 he issued the ticket to Mr. Loving because Mr. Loving had gone
through the stop sign, and had adequate visibility on that date to have stopped
DISCUSSION AND CONCLUSION
It is well-settled that the State has a non-delegable duty to design, construct
and maintain its highways in a reasonably safe condition.
Friedman v State of New York
, 67 NY2d 271 (1986). Although not the
insurer of the safety of its highways, the State is nonetheless responsible for
properly posting, maintaining and positioning signs along a State highway
designed to warn motorists of hazards that may lie ahead, and in installing and
maintaining appropriate traffic control devices where warranted. See,
, Cianciola v State of New York
, 2002 WL 1969257 (Ct Cl
Such maintenance includes removal of
obstructing foliage. McKenna v State of New York
, 91 AD2d 1066 (2d Dept
; see, also
, Hamilton v State
of New York
, 277 AD2d 982, 983 (4th Dept 2000). The mere happening of an
accident at a particular location on a State highway does not necessarily render
the State liable, however. A claimant must establish either that the State
created or had actual or constructive notice of the existence of an unsafe or
dangerous condition and then failed to take reasonable measures to remedy that
condition. Fowle v State of New York
, 187 AD2d 698 (2d Dept 1992). The
conditions must be of such a nature and degree so as to put the State on notice
to make closer inspection. See
, Asnip v State of New
, 300 AD2d 328, 329 (2d Dept 2002)
Edwards v State of New York
, 269 AD2d 863, 864 (4th Dept
Finally, having shown that there was
a breach of duty by Defendant's failure to remedy the dangerous condition, a
claimant must establish that the breach proximately caused the accident and the
resulting injuries. Donaghy v Bilotti
, 159 AD2d 478 (2d Dept 1990),
, 76 NY2d 702 (1990);
, Shaw v State of New York
, 196 Misc 792 (Ct Cl
Every motorist is bound to use his senses to see what is before him.
Robinson v State of New York
, 38 Misc 2d 229, 234 (Ct Cl 1962),
, 19 AD2d 946 (3d Dept 1963), appeal denied
, 14 NY2d 484
(1964). Thus, even where the defendant had failed to replace a stop sign that
had been knocked down by a sanitation truck almost one month earlier, when the
driver failed to yield at the intersection the stop sign should have controlled
to the vehicle approaching on its right, the First Department still found that
the driver was obligated to correctly judge when the other vehicle would reach
the intersection - making allowances for his own physical disabilities - and
that the lack of a stop sign was not the proximate cause of the accident.
Sherman v City of New York
, 206 AD2d 272 (1st Dept 1994), lv
, 85 NY2d 802 (1995).
In this case Claimant has failed to establish control, actual or constructive
notice of a dangerous condition and, more importantly, that any purported
failure to remedy a dangerous condition was a proximate cause of Claimant's
injuries. As to control, while the State conceded that it was responsible for
maintaining the stop sign, [
, Vehicle and Traffic Law §1681(a)] there was no evidence as to
where the State's right of way vis-à-vis Bracken Road ended. As to
notice, there was no evidence that this intersection had been burdened with
numerous accidents, or that any complaints about it had ever been voiced.
Instead, photographs Mr. Lupian had taken in May, 1999, showing the area to be
overgrown, and a photograph taken within days of the accident showing the area
to be relatively clear were presented, and testimony tainted by various degrees
of interest was offered to explain away discrepancies. Notably, most of the
photographs show a stop sign, or some other traffic control device, at the end
of Bracken Road: yet these were photographs all taken for the intended purpose
of showing how the tree purportedly obscured the stop sign.
The testimony of Caroline Souilliard and William Loving is difficult to credit
due to self interest, and is marred by inconsistency. First, Mrs. Souilliard
proclaimed that the photographs taken in May, 1999 were fair representations of
how the accident scene looked in July, 1999. Later, she declared that the
photograph she had taken was the way the scene looked, only to withdraw that
testimony when it seemed to imply that the area was cleared of vegetation. Mr.
Loving is a defendant in another lawsuit who appeared relieved to accept an
explanation that a tree obscured his view of the intersection rather than the
fact that it was his lack of attention that prevented his seeing the stop
The only evidence of how far the supposedly obscuring tree was from the stop
sign is the testimony of Mr. Van Dyke, who clearly stated that there were
approximately 30 or more feet between the tree and the stop sign, with an
additional 6 feet from the stop sign to the intersection of Bracken Road and
Route 17K. Further evidence established that there was reasonable visibility of
the stop sign from as far away as 200 feet. Claimant has not shown by a
preponderance of the credible evidence that vegetation or trees obscured the
stop sign to the degree that it created a dangerous condition.
Moreover, any purported negligence on the part of the State of New York was not
the proximate cause of this accident. Mr. Loving was familiar with the road on
which he was driving, was aware that an intersection with Route 17K was
imminent, had seen either a stop sign or a yield sign at the end of Bracken Road
on prior occasions, but nonetheless did not pause or stop at the intersection.
This accident would not have happened but for Mr. Loving's failure to stop and
observe oncoming traffic at the intersection of Bracken Road and Route 17K.
Accordingly, Claimant has failed to establish liability on the part of the
State of New York and Claim Number 103671 is dismissed in its entirety.
Let Judgment be entered accordingly.
May 19, 2003
Plains, New York
HON. THOMAS H. SCUCCIMARRA
Judge of the Court of
Except for a "stop ahead" sign apparently
installed by the Town of Montgomery after the accident that is the subject of
All quotations are to trial notes or
audiotapes unless otherwise indicated.
State's failure to post precautionary speed
advisory sign negligent; such negligence proximate cause of motorcyclist's
The Appellate Division remitted the case to
the Court of Claims for an apportionment of liability and assessment of damages,
finding as a matter of law that two trees in the State's right of way blocked
the driver's view of the State road as she attempted to enter the State route
from a local road. On remittur
, McKenna v State of New York
AD2d 996 (2d Dept 1985).
Claimant failed to establish that a tree
overhanging State road was hanging so precariously as to put State on notice to
make closer inspection.
Claimant failed to establish that prior
accident history at intersection warranted investigation of the conditions at
the intersection where Claimant alleged failure to post "stop ahead" sign in
advance of intersection, and failure to maintain the stop sign at a certain
height, caused the accident. Claimant had alleged she did not see the stop sign
before proceeding into the intersection and striking another vehicle.
City's failure to maintain yield sign on
expressway exit ramp not proximate cause of plaintiff's injuries. Driver's car
went out of control and was sole cause of accident.