New York State Court of Claims

New York State Court of Claims

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.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
May 19, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

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, 2003.
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 [
See, 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 belief.
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 " 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..."
[citation omitted]. Liga v Long Island Rail Road, 129 AD2d 566 (2d Dept 1987). Claimant " 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 Hock, 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.
See, generally, 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 Conklin, 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 omitted)." 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 1996).
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.
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. [
See, 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. [
See, e.g., 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 that date.
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 representation[1]
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 sign."[2]
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. [
See, 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 been hurt.
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. [
See, 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 guardrail.

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. [
See, 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, Exhibit "42"].
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. [
See, 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 appropriately.
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, e.g., Cianciola v State of New York, 2002 WL 1969257 (Ct Cl 2002).[3] Such maintenance includes removal of obstructing foliage. McKenna v State of New York, 91 AD2d 1066 (2d Dept 1983)[4]; 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, e.g., Asnip v State of New York, 300 AD2d 328, 329 (2d Dept 2002)[5]; Edwards v State of New York, 269 AD2d 863, 864 (4th Dept 2000).[6] 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), appeal denied, 76 NY2d 702 (1990);[7] see, also, Shaw v State of New York, 196 Misc 792 (Ct Cl 1949).
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), affd, 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 denied, 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, [
see, 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 sign.

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
White Plains, New York

Judge of the Court of Claims

[1] Except for a "stop ahead" sign apparently installed by the Town of Montgomery after the accident that is the subject of this claim.
[2] All quotations are to trial notes or audiotapes unless otherwise indicated.
[3] State's failure to post precautionary speed advisory sign negligent; such negligence proximate cause of motorcyclist's injuries.
[4] 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, 112 AD2d 996 (2d Dept 1985).
[5] Claimant failed to establish that a tree overhanging State road was hanging so precariously as to put State on notice to make closer inspection.
[6] 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.
[7] 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.