New York State Court of Claims

New York State Court of Claims

NICHOLOS, FORD v. THE STATE OF NEW YORK, #2004-032-509, Claim No. 93386-A


Synopsis



Case Information

UID:
2004-032-509
Claimant(s):
SUSANNE M. NICHOLOS, ROBERT M. FORD, and ROBERT M. FORD as Parent and Natural Guardian of JESSICA L. FORD and ASHLEY FORD, Infants
Claimant short name:
NICHOLOS, FORD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
93386-A
Motion number(s):

Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Harriton & Furrer, LLP
By: Keith S. Harriton, Esq. and Urs Broderick Furrer, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Belinda A. Wagner, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 30, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

FACTS

At approximately 2:00 P.M. on November 9, 1995, Robert Ford drove north on Route 9W in the Town of Athens in his 1985 blue Buick Regal to pick up his paycheck from his employer. His wife Susanne Nicholos[1], and their two children were with him in the car. It was a dry, cold day and Mr. Ford had not consumed any alcohol or drugs that day. As they approached Coxsackie, New York, their vehicle was struck by a Chrysler sedan driven by Jesus Suarez, who had been traveling westbound on County Route 74[2] and was crossing onto Route 9W. The impact with the Suarez vehicle pushed the Buick into the southbound lane of traffic on Route 9W, where it was struck a second time, by a Greene County dump truck. Susanne Nicholos, Robert Ford and their children were wearing seat belts at the time of the accident (Tr, 697). Susanne Nicholos was seriously injured, ultimately losing her lower right leg.

Westbound traffic on County Route 74, prior to the intersection with Route 9W, first passes a yellow and black "STOP AHEAD" sign and then, approximately 512 feet later, passes two 48" x 48" "STOP" signs (Exhibits U, V). Approximately 883 feet before reaching the intersection, northbound traffic on Route 9W passes an intersection warning sign.

Susanne Nicholos had very limited memory of the event. At trial, she recalled that immediately preceding the accident she saw a car out of the corner of her eye, grabbed the dashboard, and exclaimed, "Oh, my God!". As the car in which she was riding started to spin, she looked toward the backseat at the children. She has no further recollection of the accident.

Robert Ford testified that his vehicle was traveling 45 to 50 mph as he approached the Route 9W/County Road 74 intersection. He looked ahead at the intersection but did not see any cars coming towards Route 9W from either direction.[3] In addition, there were no cars either in front of him or behind him on Route 9W (Tr, 718-719, 734). He was familiar with the area and knew that westbound traffic encountered two stop signs immediately before the Route 9W intersection.

As his Buick entered the intersection, Mr. Ford heard his wife say, "Oh, my God!" He turned to the right and saw a flash. He slammed on the brakes and realized that his car had been hit on the passenger side by another car.[4] The impact felt like a bump, he stated, and it caused his car to go into a spin. When it stopped spinning, he turned to check on the children and, as he turned back toward the front, he heard a loud thunderous crash (Tr, 719-721). His car had been struck a second time, by a Greene County dump truck that had been traveling south on Route 9W. Mr. Ford's next recollection was paramedics telling him not to move, while he was still in the driver's seat with his seat belt fastened (Tr, 722).[5]
Exhibit 64 depicts the mangled wreck of the Fords' vehicle after the accident. Mr. Ford also testified that immediately prior to the accident, his view of the intersection to the east had been obstructed by a flatbed trailer with an old rusty car upon it, which was parked parallel to County Route 74 on the southeast corner of the intersection (Tr, 725, 739). He claims the flatbed trailer and car blocked his vision of cars pulling into the intersection (Tr, 725). Although there were no exhibits showing this trailer and vehicle on the day of the accident, Mr. Ford drew their alleged location on Exhibits 45, 51[6] photographs taken a few days after the accident, and on Exhibit G[7], a photograph taken the day of the accident. Exhibit G shows the southeast corner of the intersection, but an ambulance is blocking the location where Mr. Ford claimed the trailer and vehicle were parked.[8]

Jesus Suarez, the driver of the vehicle that first hit the Ford's vehicle or "the Buick", testified that he was seventeen at the time and attending high school. He had lived in the Catskill area for seven years and, several months earlier, his family had purchased a brown Chrysler so that he could drive himself to and from school. He testified that there were no mechanical problems with the car and that he had not consumed any drugs or alcohol on the day of the accident or the previous day.

On November 9, 1995, Mr. Suarez had taken the day off from school to go somewhere with his girlfriend and her friend.[9] (Tr, 356). He stated that he did not know the speed limit on County Route 74 (Tr, 363) but that he was initially going 15 mph (Tr, 363, 397, 399). As he proceeded over railroad tracks, located approximately one-half mile from the intersection with Route 9W (Tr, 795), Mr. Suarez stated he reduced his speed to 10 mph (Tr, 398). He claims that he kept his foot on the brake from the train tracks to the intersection where the accident happened (Tr, 403). He did not recall seeing the "stop ahead" sign on County Route 74 but he did recall seeing the two big stop signs at the intersection. Despite seeing these signs, he did not come to a stop (Tr, 402, 406)[10] but merely looked to each side of the intersection a few times before crossing onto Route 9W (Tr, 409). He estimated his speed at this point to be 7 mph.

Mr. Suarez identified Exhibit 45 as displaying the cars that were parked on the southeast corner of the intersection. He said that these cars blocked his view of oncoming northbound traffic on Route 9W. He was not sure, however, if they were in the same location as that displayed in the photograph or whether a car on top of a flatbed trailer had actually been there on the day of the accident (Tr, 411- 412). He was certain, however, that the white van shown in Exhibit 45 and the vehicles displayed in Exhibit D (lower photograph) were there on the day of the accident (Tr, 413-414). Mr. Suarez also identified Exhibit 59 as showing trees or brush that also blocked his view of oncoming southbound traffic on Route 9W (Tr, 373-375, 407; Exhibit 44). Mr. Suarez claimed that if the cars and brush had not been there, the accident would not have happened (Tr, 387). He admitted on cross-examination that, as a result of this accident, he received a ticket for passing a stop sign. He later pled guilty to a lesser charge (Tr, 388).[11]

Although he could not remember whether he was going to turn right or left onto Route 9W, Mr. Suarez remembered later in his testimony that he made a stop at the stop signs, reduced his speed to a "walking" speed (approximately 2 to 3 mph), and was "creeping out" out into the intersection so he could see in either direction (Tr, 375-377, 381). He did not recall seeing any stop lines at the intersection (Tr, 380) and stated that the stop signs were located so far from the intersection that when he stopped near them, he would not have been able to see approaching cars (Tr, 382). He eventually stopped his car at the white edge line of the northbound lane on Route 9W (Exhibit 59; Tr, 383). Mr. Suarez stated that as he stopped his car at this line, he was hit by the Fords' vehicle that was proceeding northbound on Route 9W. He indicated that he had not seen the Ford vehicle prior to the collision (Tr, 383). Mr. Suarez did not see the Fords' vehicle spin or make contact with the Greene County dump truck (Tr, 385). Immediately after the collision, Mr. Suarez got out of his car, walked toward the Fords' vehicle and heard the children. He then fainted (Tr, 385). The Court found much of Mr. Suarez's testimony to be incredible. [12]

Mr. George Greiner, an employee of Greene County, a witness to the accident, was driving his small Chevrolet pickup truck behind Mr. Suarez on County Route 74. Mr. Greiner had been an Emergency Medical Technician and, at the time of the accident, was Chief Officer in the West Athens/Lime Street Fire District and an employee of Greene County. He was on his way to work for Greene County when he noticed someone throwing litter from the Suarez vehicle. Mr. Greiner increased his speed so that he could see the license plate number of the vehicle in order to report the littering (Tr, 801). As the Suarez vehicle approached the intersection, Mr. Greiner pulled his car halfway into a driveway that was approximately 50 feet from the intersection to record that license plate number (Tr, 820, 823, 825). As he pulled into the driveway, Mr. Greiner looked to the right to make sure that he missed a mailbox. When he looked back to his left, the accident happened (Tr, 826).

Mr. Greiner testified that the Suarez car did not stop at the intersection (Tr, 853), and that he did not see any brake or indicator lights on the Suarez vehicle before the accident (Tr, 866). He estimated that the Suarez vehicle went into the intersection at approximately 20 to 25 mph. According to Mr. Greiner, the entire front bumper area, including the grill and headlight assembly, struck the Fords' vehicle in an area extending from the front tire to the side door on the passenger side (Tr, 831-832). He described the impact as "very heavy" (Tr, 866).

Immediately after the impact, he stated, "There was a large cloud of debris came out of it. A lot of dust. There was a couple of big objects that flew, one of them that just stuck in my mind was one big object flew, popped straight up in the air and landed on the road." (Tr, 833). He later determined that one large object had been Susanne Nicholos, who was ejected from the Buick after the first impact (Tr, 847).[13] In Exhibit 33, a report that he made in his capacity as Chief Officer in the Fire District, Mr. Greiner wrote, in contradiction to Mr. Ford's testimony, that after the second impact "a subject was hanging out the back window of the vehicle, [lay] over the trunk lid . . . . [A] a male was [lying] on the back of the blue car . . . [and] stated his kids needed him, and [he] slid back in through the rear window of the car . . . [and] slid to the front seat of his vehicle." (Exhibit 33, p 2).

At trial Mr. Greiner was asked if on the day of the accident, there had been any obstructions in the way of a driver traveling west on County Route 74, looking towards northbound traffic on Route 9W. Regarding the southeast quadrant of the intersection, he testified that at the stop signs, which are back from the intersection, "there's a pole [telephone] there, there's an old car, there's a center island, it used to be a gas station there where the pumps were on the center island, they had planted a couple of pine trees. You can see those. Then if you go up and stop at the intersection, all that's behind you to the left and you can look right over the top of the crest of the hill." (Tr, 828). He further testified that there was at least one car there, with possibly a second car parked alongside of it (Tr, 828). At his deposition, Mr. Greiner had testified that at the time of the accident, he did not notice anything that would have blocked the view of the Suarez vehicle (Tr, 829). He acknowledged that there were always a few old cars on the property to the left of the intersection, but he could not say what the driver of the Suarez vehicle would have observed as he approached the intersection (Tr, 830-831). At his deposition Mr. Greiner said that he did recall a stop line on County Route 74, but on re-direct examination at trial, when he was shown Exhibits 46, 49 and 66, he could not discern a stop line on that side of the intersection (Tr, 883-884).

The driver of the Greene County dump truck, Mr. William Mabee, testified that he was driving the three-ton, sixteen-foot truck on the day of the accident to haul stone between a quarry in Earlton and a transfer station in Coxsackie (Tr, 893- 895, 910). On the day of the accident, he had inspected the truck and found no mechanical difficulties with it (Tr, 897). He had not consumed any alcohol, medication, or illegal drugs. Mr. Mabee had just made his last delivery to the transfer station and was returning south on Route 9W when, as he was approximately one hundred feet from the intersection, he saw the Fords' vehicle (Tr, 899, 911, 923, 947; see Exhibit 49/yellow mark). He was driving at 50 mph, and he estimated that the Fords' vehicle was fifty feet from the intersection, coming from the opposite direction (Tr, 900, 925, 931). As the Fords' vehicle reached the intersection, the Suarez vehicle, which he estimated to be traveling at 20 to 25 mph, suddenly emerged from County Route 74 and hit the Fords' vehicle toward the back on the passenger side (Tr, 902). When questioned on cross-examination about his ability to estimate the speed of the Suarez vehicle, Mr. Mabee testified, "...I know one thing, they [driver of the Suarez vehicle] didn't have no intentions of stopping." (Tr, 945). He further testified, " It [the Suarez vehicle] had to be going pretty quick if it hit that car, the blue car [the Fords' vehicle], to send it up to me" (Tr, 949). The first time that he saw the Suarez vehicle was when it made contact with the Fords' vehicle (Tr, 936-937). When he saw that impact, he immediately hit his brakes and turned to his right because he saw the Fords' vehicle coming towards him (Tr, 903). The Fords' vehicle hit his truck (Tr, 903), and the front end of Mr. Mabee's truck landed in a ditch on the side of the road (Tr, 940, 947; see Exhibit 49/red mark).[14]

State Trooper Leopold Klemke Jr. testified that he arrived at the scene of the accident fifteen minutes after it occurred, in order to secure the scene, check for injuries and conduct a general investigation of the accident (Tr, 964, 965). He talked to witnesses[15] at the scene and visited the hospitals where the injured were located. According to his police report and his testimony at trial, Trooper Klemke found that the apparent contributing factors and cause of the accident was Suarez's failure to yield the right-of-way and his disregard of a traffic control (Exhibits 28 and L). No contributing factors were attributed to the operation of the Fords' vehicle or the Greene County dump truck (Tr, 978, 980). He issued a ticket to Mr. Suarez for the failure to stop at a stop sign (Tr, 981). Trooper Klemke made his determination of cause by placing himself at the stop sign, where the Suarez vehicle should have stopped, and concluding that Suarez's view of northbound traffic at the scene of the accident was not obstructed (Tr, 987-988).

Sergeant James Halvorsen[16] testified as the defendant's expert reconstructionist. He prepared a collision reconstruction report on May 27, 1999 at the request defendant's counsel.[17]

Sergeant Halvorsen testified that the only pre-impact skid mark he observed at the accident scene came from the Greene County dump truck (Tr,1031). He opined that the majority of the damage to the Fords' vehicle came from the dump truck. When the Fords' vehicle was initially hit by the Suarez vehicle, that force caused the Fords' vehicle to go into a 195-degree rotation from its initial course. The dump truck swerved to its right and consequently hit the Ford vehicle on the passenger side where the door hinge met the rear quarter panel. The dump truck ripped through the driver's and passenger's compartments and re-directed the Ford vehicle back to its original location (Tr, 1034-1035).

As for the Suarez vehicle, Sergeant Halvorsen opined that the major portion of damage to that car was across its front end, which coincided with damage to the passenger side of the Ford vehicle. There was a paint transfer between the front end of the Suarez vehicle and the right rear quarter panel of the Ford vehicle. The second impact with the Ford vehicle occurred after the dump truck hit it and sent it back into the intersection where it lightly struck the Suarez vehicle (Tr, 1036). Sergeant Halvorsen opined that the cause of this accident was Mr. Suarez's failure to yield the right-of-way to traffic traveling on either side of Route 9W (Tr, 1041, 1049)[18].

In 1992, Robert Winans Jr. was the resident engineer/highway maintenance engineer for the State Department of Transportation (DOT) in Greene County. His duty was to manage the DOT's highway maintenance program in that county (Tr, 28). He described Route 9W as a two lane, north/south highway that was thirty feet wide from edge of shoulder to edge of shoulder (Tr, 31). The speed limit at the location in question is 55 mph. He described County Road 74/Leeds Athens Road as an asphalt road with one lane running east and one lane running west (Tr, 33). The State's right-of-way runs thirty-eight feet from the center line of the highway (Tr, 39).

In 1995, William Logan was the Regional Traffic Engineer for the DOT's Region 1, a region that encompasses eight counties including Greene County (Tr, 302). One of his responsibilities was conducting traffic signal studies and maintaining seven hundred traffic signals (Tr, 301).[19] He received five hundred to seven hundred formal complaints per year that resulted in traffic engineering studies (Tr, 303). He testified that, as a result of a fatal July 1992 accident at this intersection, in which neither speed nor weather conditions were a factor, he asked a DOT employee to draw a three-year collision diagram covering the period from January 1, 1988 to September 30, 1991, and a sketch of the signage and sight distances at the location (Tr, 163). The diagram, contained within Exhibit 6, indicates that twenty-four accidents occurred at the location during that period. Speed studies were not conducted at that time (Tr, 166). The sketch showing signage and sight distances is also contained within Exhibit 6 and shows that in the westbound direction at that intersection, there is a 2000-foot sight distance looking to the north and a 500-foot sight distance looking to the south when a vehicle is stopped at the edge of Route 9W. In the eastbound direction, it shows the same sight distances. These distances were taken when the driver was twelve feet back from the edge of the pavement (Tr, 166-167). No sight distances were noted with respect to vehicles on Route 9W.

Pursuant to this investigation, Amy Burlarley-Hyland, another employee of the DOT, issued the directives that are contained in Exhibit 6, a DOT memorandum. She directed that certain sign changes be made, particularly that the 42-inch stop signs facing westbound traffic on County Route 74 be replaced with 48-inch stop signs; that a 48-inch stop sign replace an existing stop sign facing eastbound traffic on Leeds-Athens Road; and that the existing intersection warning sign be relocated 700 feet further south on Route 9W (Tr, 168). These changes had all been made before the date of the accident (Tr, 153).

Previously, in 1993, the Greene County Highway Superintendent had requested that DOT install "some type of firehouse warning device on Route 9W approaching the Leeds-Athens Road on which the West Athens-Limestreet Fire Company is located" (Exhibit 10). The request was denied because Leeds-Athens Road is not a State highway (Exhibit 14 ). In 1994, the DOT Regional Director, Richard Maitino, indicated that the request was a "good idea" and he asked for a review of the earlier decision (Tr, 196-197; Exhibit 14). On September 20, 1994, Mr. Logan visited the intersection for the first time and conducted a one-hour study during off-peak hours (Tr, 214-215, 342). The first page of Exhibit 16[20] contains Mr. Logan's observations from that day. He found the eastbound and westbound traffic volumes on County Route 74 and Leeds- Athens Road to be low but the speeds appeared excessive on Route 9W. His notes from his observations on September 20, 1992 state:

Based on accident record, additional warning of the intersection for Route 9W traffic and additional warning of the need to stop for side road traffic is appropriate. We will therefore install a flashing signal at the intersection, will install an oversized intersection warning sign facing SB, will change the existing NB intersection sign to oversized and will install a stop ahead sign warning sign on the EB approach. Additional warning on Route 9W for the firehouse would be of no benefit . . . . Signs and lights won't make it any easier to exit and would actually create a false sense of security for fire truck operators.

Mr. Logan also directed that speed data be obtained for the intersection. Joseph DeSorbo of the DOT conducted this investigation and determined that 85% of the vehicles traveling northbound on Route 9W were traveling at 58 mph or less (Tr, 236). For traffic traveling southbound, 43% were going over the speed limit of 55 mph (Tr, 237). Mr. Logan believed that this data corroborated his observations that the speeds were high at this intersection (Tr, 238). Mr. DeSorbo also drew a diagram of the intersection, dated September 28, 1994, which indicated that the eastside stop sign on County Route 74 was completely covered by brush and that the stop ahead sign on County Route 74 was leaning and in danger of falling (Tr, 240-241). Mr. Logan made a request to the Sign and Signals Group within the DOT to add the installation of the signal for the intersection to its contract with LaCorte Electric Construction and Maintenance Corporation ("LaCorte"). (Exhibits 57A, 57B; Tr, 248-249).

Exhibit 20, dated January 11, 1995, sets forth the design of the light signal as a flashing yellow light on Route 9W and a flashing red light facing County Route 74 and Leeds-Athens Road. Exhibit 21, dated April 7, 1995, contains a work order for new signs to be erected and installation of a flashing light at the accident intersection.[21] Exhibit 21, an internal memorandum of DOT identifies the intersection as Location 40. It states, "Location numbers 34, 35, 37, 38, 40 and 42 are new signal installations and should be done first (especially Location 37 which must be operational by the beginning of the fall school year).[22]

Exhibit 21, page 3, also reflects that 20-inch stop lines will be placed at the intersection, with field conditions to determine precisely where they shall be placed (Tr, 270-271). According to Mr. Logan, stop lines can be placed after a stop sign to indicate where DOT would like traffic to stop as it approaches a highway (Tr, 272).[23] He was unaware if the stop line had been installed at the intersection as of November 9, 1995 (Tr, 291).

Mr. Logan testified that the construction group within the DOT was responsible for the installation of the signal; the engineer-in-charge of that group was Janine Daughtry (Tr, 253). Mr. Logan was unaware if the change in the signage, as directed in Exhibit 19, had been completed as of November 9, 1995 (Tr, 291). He knew, however, that poles for the traffic signal had been installed but the signal had not yet been placed (Tr, 291).[24] Mr. Logan believed that the signal for the intersection would be installed some time before the life of the contract with LaCorte expired on September 30, 1996 (Tr, 323; Exhibit 57A). He testified that once the installation was approved, it would take one to four years for a signal to be installed (Tr, 324).

Janine Daughtry, who was once employed by the DOT as a Civil Engineer I, became the engineer-in-charge of the traffic signal installation contract that included this intersection. Exhibit 20 is the Notice of Action Taken, dated January 11, 1995 and signed by William Logan, which provided the description of the traffic signal to be installed at the accident location (Tr, 471). Exhibit 21 is the work order, designated "Work Order #2."[25] According to Ms. Daughtry and the contract, the installation of new signals at intersections were to be done within six months from the date that she notified the contractor, which in this case was within a day or two of the April 7, 1995 date on Exhibit 21 (Tr, 474-475, Exhibit 57A). Therefore, this signal should have been installed by mid-October 1995. Ms. Daughtry was also responsible for the installation of the signs and stop lines as referenced in Exhibit 21 (Tr, 476-477). Exhibit 22, a letter from Ms. Daughtry to LaCorte, relays the same information to the contractor as contained in Exhibit 21 indicating that Location 40 was among those sites to be done first.

Exhibit 57A sets forth the contract proposal for this location. The "Special Conditions" section of the contract indicates that the contract was for a period of twenty-four months and that work was expected to be completed within nine months from the issuance of a work order for rebuilt signals and within six months from issuance of an order for new work signals (Exhibit 57A, page 123, §1.2). The contract also provided that "[t]he contractor shall commence work . . . within ten days of the receipt of the "Work Order". . . . [T]he work shall be progressed continuously . . . so that it is entirely completed to the satisfaction of the Engineer-in-Charge within the appropriate period." (Id. at 173.) For each calendar day that work remains incomplete beyond the time period allowed for each work order, liquidated damages will be deducted from any money due the contractor (Exhibit 57A, p 174).

In Ms. Daughtry's opinion, the complete installation of the signal would have taken at least thirty-five days to allow for the necessary curing for the signal poles (Tr, 488-491). The contractor started work at the intersection on July 12, 1995[26]. As many of the photograph exhibits demonstrate, the work was not completed as of the date of the accident. According to Ms. Daughtry, it was discussed with her supervisor that LaCorte was not managing the project well (Tr, 504). She claimed that she spoke to the project manager at LaCorte several times about the timing problem. On October 17, 1995, she sent a letter to him relaying her displeasure about six of the locations noted in Work Order #2 that were past due for completion under the contact as of October 11, 1995 (Exhibit 26). She requested that a progress schedule be sent to her to ensure that the work could be finished as of September 30, 1996, the contract's completion date.[27]

Although at trial Ms. Daughtry could not recall whether the problems with Central Hudson Gas and Electric, the utility providing electricity to the site, were a cause for some delays, at her deposition she stated that she did not believe that to be true (Tr, 513). There is no mention of any such problems in her progress notes contained in Exhibit 23 (Tr, 515)[28]. She first visited Location 40 on July 12, 1995 and at that time she had no reason to believe that the work would not be completed on schedule (Tr, 522). The last time LaCorte was at the worksite before the accident was on July 28, 1995. Ms. Daughtry believes that workload and mismanagement by LaCorte were the reasons why they did not return to Location 40 until after the accident occurred (Tr, 547). Other than assessing liquidated damages against LaCorte, there was nothing else defendant could do to force LaCorte to work faster (Tr, 544).

With respect to the State's right-of-way on the southeast quadrant of this intersection, Exhibit 24 is a memorandum from Robert Winans to Nate Ingram of the Real Estate Unit within the DOT. Mr. Ingram's input was requested regarding junk cars on this quadrant of the accident intersection. This memorandum was drafted pursuant to a complaint from Mr. Chaste, the Town of Athens Code Enforcement Officer. The owners of the property were Francis and Carmella Maffucci. Mr. Francis Maffucci operated a business at this location, known as Maffucci Sales Company, Inc., which secured parts for antique automobiles (Tr, 1289). Mr. Maffucci was the only employee of the company at this time and the only person with the keys to any of the vehicles (Tr, 1291, 1293). He testified that he would use a white van with a red trailer, as shown in Exhibit 54, to transport these antique vehicles (Tr, 1292).

On August 25, 1995, Mr. Winans wrote to Mr. and Mrs. Maffucci, stating that some of the vehicles being stored on their property were on the State's right-of-way (Exhibit 25). He requested that the vehicles be removed before October 1, 1995, pursuant to section 52 of the Highway Law, which prohibits the placing of obstructions on a right-of-way, or be subject to fines of $25.00 to $1000.00 per day after that date. The letter also noted that section 89 of the State Highway Law controls junkyards and prohibits a junkyard facility from operating within 1000 feet of a highway unless it is visually screened or within an industrial area. The Maffuccis were cautioned that their facility could be deemed a public nuisance by the Town of Athens since it violated this section of the State Highway Law.

Within a few weeks of this letter, Mr. Winans visited the Maffucci property to discuss the matter (Tr, 91). Mr. Maffucci agreed to comply with the request to move the vehicles, but Mr. Winans was unclear as to whether Mr. Maffucci guaranteed that they would be removed by October 1, 1995 (Tr, 92). By the time the meeting occurred, Mr. Maffucci had already made some progress with regard to the removal of the vehicles (Tr, 93). Mr. Winans could not recall how many vehicles had been removed at that time, nor did he make any notes about the removal process (Tr, 94). There were no further follow-up meetings with or letters to Mr. Maffucci (Tr, 95). The only follow-up inspections by Mr. Winans consisted of drive-bys while on other business (Tr, 96). No fines were assessed against Mr. Maffucci (Tr, 96-97).[29]

Mr. Winans became aware of the accident of November 9, 1995 because he happened to drive by the intersection shortly after it occurred (Tr, 97). He did not clearly recall if there were any vehicles parked in the right-of-way at that time (Tr, 98, 102, 107).

Mr. Maffucci testified that he received the letter from Mr. Winans regarding the removal of the vehicles from the State's right-of-way and that Mr. Winans came to the property to talk with him (Exhibit 25; Tr, 1294). He said that Mr. Winans told him the vehicles had to be removed from the State's right-of-way, which extended thirty-eight feet from the center line of Route 9W. The front of the pine trees, as shown and labeled on Exhibit 54, marks where the State's right-of-way ends (Tr, 1294, 1318). Mr. Maffucci had started to move the cars behind the pine trees and to the rear yard where he had substantial space (Tr, 1296).

Mr. Maffucci identified the light blue vehicle in Exhibit F, a photograph taken at the accident scene, as a 1949 Lincoln Town Car sedan which could not be moved easily since it had no engine (Tr, 1302, 1308). This is the same car labeled as vehicle 1 on Exhibit 54, a photograph taken a few days after the accident. Mr. Ford had placed a yellow circle in front of this vehicle on Exhibit 54 to indicate where he saw a car on a flatbed trailer parked parallel to County Route 74 on the day of the accident. Mr. Maffucci testified, however, that he would never leave a vehicle on a trailer at that location, because the car could be hit by vehicles that frequently cut the corner while making a right-hand turn. He also added that he would not want to obstruct the view for motorists stopped at the stop sign on County Route 74 (Tr, 1314-1315). Mr. Maffucci identified seven other vehicles in Exhibit 54, a photograph taken a few days after the accident, stating that they were owned by him and located either on his property or on the State's right of way (Tr, 1305-1307).

Nicholas Bellizzi[30], who testified on behalf of the claimants, stated that the intersection had an adverse accident history based upon his review of the DOT's records. He also testified that the stopping sight distance of 500 feet for northbound traffic at that intersection was inadequate under the New York State Design Manual and the American Association of State Highway and Transportation Officials ("AASHTO") Manual (Tr, 611-612).[31] In his opinion, the stopping distance and the intersection sight distance were not adequate.[32] Mr. Bellizzi also testified that the terms "safe stopping sight distance" and "intersection sight distance" are essentially the same. The former would apply to any place along a road, while the latter applies only to intersections (Tr, 616-617). Mr. Bellizzi was of the opinion that 500 feet of sight distance for northbound traffic on Route 9W was inadequate, given the 55 mph speed limit (Tr, 621) and, that such restrictive sight distance was a proximate cause of the accident (Tr, 622).[33] He also concluded that the absence of a white stop line was also a proximate cause of the accident since it would have provided information to Mr. Suarez as to where to stop to obtain the maximum sight distance available (Tr, 623). Since the cost to install such a line would be modest, he opined, it was improper for the DOT not to have installed the stop line as of the date of the accident (Tr, 631, 637). He also concluded that if there were vehicles parked on the Maffucci property, as presented in Exhibits 45 and 54, they would be a sight distance impediment and another proximate cause of the accident (Tr, 623-626). Had vehicles still been parked on the Maffucci property on November 9, 1995, after the DOT had directed that they be removed, then the DOT's actions to enforce its order were inadequate (Tr, 630). Mr. Bellizzi opined that the inadequacies of the DOT's studies made prior to the one conducted by Mr. Logan in 1994, studies that failed to call for some method of distinguishing the intersection, were also a proximate cause of the accident. Finally, he stated that if the DOT was aware that installation of the flashing light would be delayed (Tr, 636, 638), it had an obligation to take some interim affirmative steps such as installing the stop line or posting a "limited sight distance" sign before the intersection.

Upon cross-examination, Mr. Bellizzi testified that, based upon his review of Mr. Suarez's examination before trial,[34] he believed that Mr. Suarez stopped several times as he edged out into Route 9W before colliding with the Ford vehicle (Tr, 661). Although the DOT had moved the "intersection ahead" sign on Route 9W further back, so that motorists could see it sooner, the motorists still would not know where the intersection was once they traveled around the curve on Route 9W northbound (Tr, 667). The proposed flashing signal would have identified the intersection and, based upon his own observations, he thought that motorists approaching the crest of the hill would be able to see such a signal (Tr, 669). Mr. Bellizzi agreed, however, that there are no studies that have concluded a flashing light actually reduces the speed of vehicles (Tr, 670). He did not find fault with any determination made by the State concerning the fire house.

Raymond Dardeski[35] testified as defendant's expert.[36] Exhibit S, the1932 record plans for the portion of Route 9W that includes the accident site, shows the sight distance from the top of the vertical curve south of the accident intersection as 670 feet (Tr, 1110; Exhibit S, Sheet 25). Mr. Dardeski could not find the record of methods used to calculate that sight distance when the road was constructed, and it has not been reconstructed since that time (Tr, 1105). He defined "intersection sight distance" as the distance that a driver can see traffic on the roadway, when the driver's eyes are twelve feet back from the edge of the pavement of the intersection (Tr, 1111, 1122). It is assumed a driver on a side road approaching an intersection with a more primary road will use reasonable caution and judgement by bringing the vehicle to a stop at a place where the traffic on the main roadway can be seen (Tr, 1120). This is the type of sight distance that applied to Mr. Suarez's vehicle (Tr, 1117), whereas "stopping sight distance" is the distance one can see as he/she travels on a road (Tr, 1113). He observed that when a road is to be reconstructed, the reconstruction will be done in accordance with the Design Manual, which also contains references to the AASHTO requirements (Tr, 1114). For a non-reconstructed road, however, the proper authority is the Manual of Uniform Traffic Control Devices ("MUCTD") (Tr, 1114). When doing an investigation on an unreconstructed road, the MUCTD is the resource to be consulted (Tr, 1115).

Mr. Dardeski opined that the measures taken by the DOT in response to the 1992 investigation of this intersection were made in accordance with good and acceptable engineering principles (Tr, 1127). He testified that the accident history for 1988-1991 showed that there were only two similar accidents involving cars heading westbound and northbound at that intersection (Tr, 1128). The updated intersection accident history for 1988-1992 showed three similar accidents at that intersection (Tr, 1131). Mr. Dardeski also testified that denying the request for the firehouse warning device was in conformance with good and acceptable engineering principles, since the MUTCD prohibits the use of such device when a firehouse is not abutting the roadway on which the device would be used (Tr, 1129). He opined that the measures taken after Mr. Logan's study of the intersection in 1994 were also in compliance with good and acceptable engineering principles, inasmuch as Mr. Logan visited the site, reviewed all other measures taken, and then recommended the next measure in a progressive series of increased traffic control devices (Tr, 1135). He explained that gradual progressive measures are used because overuse diminishes the effect of a device (Tr, 1142). He also testified that stop lines under the MUTCD are not mandatory; they are merely a device to delineate where a vehicle should stop (Tr, 1144).

Mr. Dardeski believed that the placement of a "limited sight distance" sign would have been ineffective, since he determined through a study, while he was the Director of Traffic and Safety, that such signs were ineffective. He reached this conclusion by monitoring vehicle speeds before and after the signs were installed at various locations. They found that speeds either increased or stayed the same after the installation of the signs. Referring to Exhibit 16, he commented that the 85% of the vehicles traveling at that location were going 58 mph and that such speeds would not warrant a reduction of the speed limit at that location (Tr, 1178). He further noted that there was no need for any interim safety improvements to be made since the controls that were in place could adequately control the intersection (Tr, 1180).

Reviewing Exhibit 6, Mr. Dardeski testified that the DOT found the sight distance for northbound traffic to be 500 feet. According to his own calculations, he determined that the sight distance for northbound traffic was 606 feet (Tr,1189).[37] For traffic on County Route 74 and Leeds-Athens Road, the sight distance is 500 feet to the south and greater than 2000 feet to the north. Based upon his calculations, he opined that the sight distance for Mr. Suarez was reasonable and adequate and that he should have been able to identify a gap in which to safely cross or turn onto Route 9W (Tr, 1190). Mr. Dardeski testified on cross-examination, however, that according to his calculations using the AASHTO Manual (which, as noted previously, is used for newly designed highways), a sight distance of 975 feet would be needed for a vehicle turning right onto Route 9W from County Route 74 (Tr, 1257-1259/Exhibit 69).[38]
APPLICABLE LAW AND DISCUSSION
Property owners owe a duty of reasonable care to those with whom they interact (Basso v Miller, 40 NY2d 233, 241 [1976]), and the scope of that duty is measured in terms of foreseeability (Perrelli v Orlow, 273 AD2d 533, 534 [3d Dept 2000], citing Pizzola v State of New York, 130 AD2d 796 [3d Dept 1987]). With respect to roads and highways built, owned and maintained by public entities, such as the State, there is a nondelegable duty to adequately design, construct and maintain these roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 284 [1986] ["Once the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger."]; Alexander v Eldred, 63 NY2d 460, [1984]; Weiss v Fote, 7 NY2d 579 [1960], rearg denied 8 NY2d at 934 [1960]). On the other hand, the State is not an insurer of the safety of its roadways, and therefore the mere happening of an accident does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]).

As a general proposition, the State has fulfilled its duty to the traveling public when a highway is made reasonably safe for those who obey the rules of the road, despite the fact that almost any road can be made safer in some fashion (Tomassi, 46 NY2d at 97). As a result, liability will not attach unless the State had either actual or constructive notice of a dangerous condition and then failed to take reasonable measures to remedy it (see Brooks v New York State Thruway Auth., supra; Valentino v State of New York, 62 AD2d 1086 [3d Dept 1978]; Rinaldi v State of New York, 49 AD2d 361 [3d Dept 1975]).

In the instant case, claimants bear the burden of establishing that defendant was negligent in its maintenance of the intersection of Route 9W and County Route 74/Leeds-Athens Road and that such negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020, 1021-22 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]; Demesmin v Town of Islip, 147 AD2d 519 [2d Dept 1989]). Claimants contend that the State had actual notice of the dangerous nature of this intersection because of the known presence of vehicles, cars and brush obscuring the view of drivers on both Route 9W and County Route 74, and because there was a record of highway accidents going back more than ten years. The State, it is alleged, failed to remedy these dangers in a timely and reasonable manner. Specifically, claimants assert that the State's failure to erect a flashing light and stop line at the intersection and/or to require that bushes and vehicles be removed from the roadside were proximate causes of the accident and thus of claimants' injuries.

Obstructions and Sight Distance

The 1994 study performed at the direction of William Logan revealed that the sight distance for westbound traffic on County Route 74 looking south (i.e., at northbound traffic) was 500 feet, and claimants' expert found the same sight distance for northbound motorists on Route 9W as they looked east (i.e., at westbound traffic). These distances are less than would be required by AASHTO standards, but those standards do not apply to highways constructed before their adoption unless and until the highway is reconstructed. It is noteworthy that, despite the finding of a 500 foot sight distance, the DOT did not attempt to change the configuration of the road to make the sight distance greater.

There was no evidence presented from which the Court can conclude that the 1994 study was inadequate or improperly done, although claimants make that argument with respect to earlier studies. Consequently, the State's decision to leave the sight distance unchanged is protected by the immunity accorded State discretionary planning decisions (Weiss v Fote, 7 NY2d 579, supra). With respect to the earlier studies, even if they were not properly done and/or were based on insufficient information, that does not automatically mean that the end result was wrong. DOT might well have reached the same decision, to leave the intersection essentially as it was, even after a complete, thorough investigation. An inadequate investigation means only that the State loses the protection of the immunity normally accorded governmental studies and planning decisions. It is still necessary, however, for claimants to prove that the actions taken by defendant were negligent and caused injury. In the instant case there is little evidence on which the Court could base a conclusion that more was needed to protect motorists at this intersection during the years prior to 1994. In fact, as discussed below, the factual basis for making some changes in 1994 is not compelling.

Claimants argue that there is a compelling history of prior accidents at this intersection which highlights the dangerous nature of the intersection and makes the State liable for delay in remedying the danger presented. After careful consideration of that accident history, the Court is unable to reach the conclusion urged by claimants. Exhibit 16 contains the most detailed list of accidents that occurred at or near the accident intersection prior to November 1995. Of thirty-four incidents logged for the period of time between January 1, 1988 and December 31, 1992, only five involved motorists who came were from one of the side roads (County Road 74 or Leeds-Athens Road) and collided with vehicles going north or south on Route 9W.[39] Only two of those five accidents involved accidents similar to the one that occurred in this case. This history is simply not sufficient to prove that the intersection presented an unusual danger (see McDonald v State of New York, 307 AD2d 687 [3d Dept 2003] ["numerous" prior accidents including two within the sixty days prior to the subject accident were evidence of dangerousness and notice]; Martin v State of New York, 305 AD2d 784, 785 [3d Dept 2003], lv denied 100 NY2d 512 [only one similar accident within three years is not sufficient to establish dangerousness]; Merrill Transp. Co. v State of New York, 97 AD2d 921 [3d Dept 1983] [evidence of more than 80 accidents in the preceding six years, many similar to subject accident, was proof of dangerousness and notice]).

The issue of Mr. Maffucci's cars and roadside brush in the area must also be addressed. Mr. Ford is the only person to have made reference to a flatbed trailer containing an automobile, although such an object would have been readily apparent to anyone on the scene and unusual enough to be remembered. Trooper Klemke, in particular, had a duty to study the site and surrounding area to discover any factors that may possibly have contributed to the accident and he made no mention, either in his report or in his testimony, of such an unusual obstacle. In light of the trauma that Mr. Ford suffered in connection with the accident and the reasonable explanation provided by Mr. Maffucci as to why he would never leave one of his cars in such a position, the Court must conclude that there was no such large object on the southwestern corner of the intersection.

On the other hand, it appears likely that there were some cars still in locations on the State's right-of-way. Although it is impossible to determine from the testimony and other evidence just how many there were and where they were placed, Mr. Maffucci appeared to admit that he had not yet moved all that were required to be moved. In determining whether any cars or any brush in the area could have hampered the vision of either driver, the Court chooses to rely on Trooper Klemke, rather than either of the drivers, who were somewhat vague and inconsistent on this point. Trooper Klemke described the method that he used to determine if there had been any impairment with Mr. Suarez's line of vision, and the Court credits the conclusions that he reached. The Court is also comfortable in assuming that, had there been any question about visual interference with Mr. Ford, the Trooper would have carried out the same procedure with respect to Route 9W.

There was no credible testimony, however, that either the cars located on the State's right-of-way or roadside brush interfered with the operation of their vehicles by either Mr. Ford or Mr. Suarez. Once again, the absence of any significant history of similar accidents is telling in this regard, for it is evident that both the brush in the area and Mr. Maffucci's cars had been at the same location for some time prior to the accident. Even if the State could be considered negligent in failing to enforce its directive to Mr. Maffucci, it would be necessary to make a causal connection between the presence of the cars and the happening of the accident for liability to be imposed.

There were two possible scenarios developed by the testimony and other evidence. One, which the Court did not credit, is that Mr. Suarez stopped in response to the stop signs and then was driving at a "walking" pace, "creeping" up to the intersection, and carefully looking for oncoming traffic. This scenario is extremely unlikely in light of the other testimony, the contradictions in Mr. Suarez's own account of events, and the physical impact on the cars. Even if it were accurate, however, someone using that extremely cautious approach would have had time to look around any obstacles in the way. The more likely scenario, supported by those who witnessed the events, is that Mr. Suarez did not stop and advanced into the intersection at a rapid pace. In other words, he was driving so negligently that the same result would have been achieved whether or not there were cars or brush on the State's right-of-way. If Mr. Suarez would not stop for two oversized stop signs, then it is very unlikely that he would have looked carefully whether or not there were objects to some extent in the way. The Court is convinced that the presence of the cars, while legally improper, did not significantly hamper the vision of either driver or play a role in the happening of the accident.

"Dangerousness" of Intersection

There is little doubt that the primary cause of this accident, and therefore claimants' injuries, was the negligence of Jesus Suarez. The Court finds that the weight of the credible evidence supports a conclusion that he did not stop at the stop signs on County Route 74, although he was aware that they were there, and that he did not slow down enough to make sure there was no traffic on Route 9W. The only evidence suggesting that he did stop was the testimony of Mr. Suarez himself, and even he was not consistent on that point, stating on one occasion that he did not stop but merely looked in both directions several times before entering the intersection. As claimants' counsel observes, however, the fact that Mr. Suarez's independent actions were a proximate, and perhaps a primary, cause of the accident does not automatically absolve the State for any negligence on its part.

Where the acts of a third party intervene between a defendant's actions and injury to the claimant/plaintiff, the defendant's actions may nevertheless be a proximate cause of the injuries. "In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence." (Heffler v State of New York, 96 AD2d 926, 927 [2d Dept 1983]). To constitute an intervening or superseding cause, "the conduct in question must be ‘so extraordinary or far removed from the defendant's conduct so as to be unforeseeable' such that ‘it is unreasonable to hold the defendant responsible for the resulting damages' (Feeley v Citizens Telecom. Co. of N.Y., 298 AD2d 745 [3d Dept 2002], quoting Decker v Forenta LP, 290 AD2d 925 [3d Dept 2002] and Miller v Town of Fenton, 247 AD2d 740, 741[3d Dept 1998]). In the situation presented here, of course, it is not at all extraordinary or unforeseeable that a motorist might drive from a side road onto a main highway without taking proper precautions and verifying that the way is clear. In fact, the foreseeability of just such an event shapes the State's duty. Consequently, if defendant was negligent in failing to take precautions regarding what it knew to be a dangerous intersection and if that negligence had a causal connection to the accident, the State would bear some responsibility for the accident, even though the actions of Mr. Suarez were the primary cause of the accident.

Unfortunately for claimants, as discussed above, there was scant proof that this intersection posed any unusual danger to motorists as a result of inadequate signals to halt traffic coming from County Route 74. Exhibit 16, discussed above, does not present a compelling picture of repeated accidents of the type involved in this action. If the State was negligent to permit the conditions of which claimant complains (absence of a flashing light, stop signs inappropriately distant from the intersection, absence of a stop line) to remain unaltered prior to 1994, because to do so created a dangerous, hazardous condition for traffic coming into the intersection from County Route 74, then there would have been more than two similar accidents in the prior five- year period encompassed in Exhibit 16.

Interestingly, Mr. Logan's comments summarizing the 1994 study that ultimately resulted in a decision to enlarge the signs, erect a flashing light at the intersection, and create a stop line do not reference any particular danger or marked history of accidents as the reason for this move. While noting that erection of some additional warnings at the intersection (a flashing light and oversized stop signs) would be "appropriate," Mr. Logan's comments focused on two other matters: the inadvisability of installing a regular (three color) stop light and the impossibility of obliging the local Fire Department's request regarding a device directly connected to times when a fire engine had to cross or turn onto Route 9W. DOT's decision to place additional warnings at this intersection appears to have resulted from several considerations (possibly providing some additional protection for fire trucks, possibly encouraging motorists to slow down to avoid collisions with deer and other animals[40]), in addition to or perhaps instead of preventing accidents that involved vehicles coming out of the side roads onto Route 9W. In any event, preventing accidents such as the one involving claimants and Mr. Suarez, appears to have been a relatively minor factor in the decision to install additional safeguards. Because the danger of such collisions was small, it was not negligent for the State to allow the improvements to be installed at the normal pace.

The fact that this collision occurred before the flashing light was in place is tragic irony only if the presence of such a light would have caused Mr. Suarez to stop and look carefully before proceeding into the intersection. Failing to install the light in a faster than ordinary manner was not negligence on the part of the State, however, because there was nothing to indicate that the intersection was unusually dangerous with respect to accidents of this nature. In addition, there is little to support a conclusion that the presence of such a light would have had an effect on the events of November 9, 1995. In order for the absence, or inadequacy, of a warning sign or signal to be considered a proximate cause of an event, it must be established that the actor's course of conduct leading up to the accident would have been different if the sign or signal had been present (Vasquez v Consolidated Rail Corp., 180 AD2d 247, 250 [3d Dept 1992]). Mr. Suarez does not deny that he saw the two oversized stop signs as he approached the intersection but, the Court has determined, he nevertheless failed to stop. There is no reason to believe that he would have been more obedient to a flashing light or a clearly-visible stop line. This is particularly true since the accident occurred in daylight, when all warning would be equally visible, rather than at night or under overcast conditions, when a flashing light might be the only thing easily visible. This accident was, without any doubt, a tragic event for the entire Ford/Nicholos family, particularly for Susanne Nicholos who lost a limb. It is impossible not to feel genuine sympathy for the victims of this accident and not wish to compensate them to some degree. As another jurist has recently had occasion to point out, however, "the Court is required to ensure that such sympathy is not improperly used as a vehicle to ascribe liability and grant an award where legal liability has not suitably been established" (Fellin v Sahgal, 4 Misc 3d 1025(A) [Sup Ct, Kings Co. 2004]). Despite the thoroughness of claimants' counsel, the Court determines that the preponderance of the evidence fails to establish that the State was negligent or that any action on the part of the State was a proximate cause of claimants' injuries.

All motions not heretofore decided are denied and defendant's counterclaim is dismissed on the ground that it is moot.

The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.




December 30, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims




[1]The couple divorced in 1997 (Tr, 691).
[2]Heading northbound on Route 9W, County Route 74 is on the east side of Route 9W and Leeds-Athens Road is on the west side of Route 9W.
[3]At his examination before trial, however, Mr. Ford testified that he did not look to his right before entering the intersection (Tr, 749-750).
[4]Although he did not see Mr. Suarez run the stop sign at County Route 74, he told police what he thought had occurred (Tr, 750-751).
[5]This is contrary to the report of Mr. Greiner, an eyewitness, that Mr. Ford was ejected through the back window onto the trunk of his car (Exhibit 33).
[6]Exhibits 45 and 51-54, photographs taken a few days after the accident, are admitted for the purpose of showing Mr. Ford's belief regarding the location of the flatbed trailer. Mr. Ford was unsure as to the location of any other cars that may have been on the southeast corner of that intersection the day of the accident (Tr, 103, 107, 108, 714).
[7]Exhibit G is admitted into evidence (see, Tr, 745).
[8]Mr. Ford maintained that the trailer and car were parked there even though at his examination before trial he had testified that he did not look to his right as he proceeded through the intersection (Tr, 749-750).
[9]He could not remember where he was going (Tr, 356).
[10]Later in his testimony Mr. Suarez claimed that he did bring his vehicle to a stop (Tr, 375-377, 381).
[11]The testimony regarding the plea bargain is admitted over claimant's objections (Miszko v Luma, 284 AD2d 641 [3d Dept 2001]).
[12]The Court makes this determination on the substance, not the delivery, of Mr. Suarez's testimony. His testimony was encumbered by many inconsistencies. Although it was difficult to follow his answers on cross-examination, the Court determined that his inconsistencies were due to his lack of credibility, not his difficulty in understanding the English language. He claimed that English was his first language (Tr, 455).
[13]It is unclear to the Court, however, when Susanne Nicholos was ejected from the vehicle since by her own testimony she turned to check on her children after the first impact.
[14]Mr. Mabee defined the sequence of events as "simultaneous" which he defined as "one thing happened–one right after another" (Tr, 947).
[15]Exhibit M, a supporting deposition of Robert Ford taken by Trooper Klemke that evening, is not admitted into evidence, Johnson v Lutz (253 NY124 [1930]). It should be noted that defendant attempted to admit this document through Trooper Klemke, not Mr. Ford while he was subject to cross-examination.
[16]In 1982 Sergeant Halvorsen earned his bachelor's of science degree from the College of Environmental Science and Forestry of Syracuse University. He previously was employed by the Police Department in Ocean City, Maryland, where he attended a collision reconstruction school. He eventually joined the New York State Police and was certified as an accident reconstructionist after attending the Institute of Police Technology and Management at the University of North Florida. At the time of trial he had reconstructed approximately 105 accidents. He has taught accident reconstruction at the New York State Police Academy and has authored various articles in the Journal of Accident Reconstruction. Exhibit N is the Sergeant's curriculum vitae.
[17]A series of photographs contained within Exhibit P and Exhibit G, a blow-up photograph of a portion of Exhibit F, are admitted into evidence since the photographs show the accident site under conditions that are substantially the same as those at the time of the accident, Calandriello v New York Racing Assn., 203 AD2d 503 (2d Dept 1994).
[18]Over the objection of claimant's counsel, this statement is admitted into the record since the disclosure required under CPLR § 3101(d) and the report submitted by Sergeant Halvorsen refer to the cause of the accident. His determination was made after careful study of the accident. His report to the defendant was based upon a preliminary report that he completed at the time of the accident.
[19]Exhibit 7, a letter from Jeanne E. Townley to the Board of Fire Commissioners, is not admitted into evidence. A business paper received from another business entity falls outside the scope of CPLR § 4518(a), even if the recipient regularly files the papers (Colonno v Executive I Assocs. et al., 228 AD2d 859 [3d Dept 1996], citing Standard Textile Co v National Equip. Rental, 80 AD2d 911; see also West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949 [4th Dept 2002]). Exhibit 4 is not admitted for the same reason, as well as relevancy, since it was unclear if it pertained to the accident intersection. Exhibit 5 is also not admitted for this latter reason.
[20]Exhibit 16 contains twenty pages. The 17th and 18th pages are the same as Exhibits 9 and 8, respectively, to which defendant objected based on hearsay since the claimant could not lay a proper foundation for the business records exception to the hearsay exclusion from evidence. The Court concurs with the defendant pursuant to the reasons set forth in footnote 20, and Exhibit 8 and the 17th and 18th pages of Exhibit 16 are not admitted. The second page of Exhibit 11, is also not admitted, pursuant to Johnson v Lutz, 253 NY 124, supra. Exhibit 9 was admitted into evidence by stipulation. However, the second page of Exhibit 9 is the same as Exhibit 8 and is not admitted for the reasons stated above.
[21]It erroneously references the removal of a 36" x 36" stop sign but correctly references the DOT's symbol of R1-1E for a 48" x 48" stop sign (Tr, 147,153).
[22]See also, Exhibit 22, a letter from Janine Daughtry of the DOT to Jack Geary of LaCorte (Tr, 273-274). The intersection of Route 9W and County Route 74/Leeds-Athens Road was Location 40.
[23]A stop line has no regulatory function but merely indicates where a vehicle should stop for some other regulatory device at a location (Tr, 331). If no stop line is present, a vehicle should stop at a point where the motorist can make a decision as to whether it is safe to enter the intersection (Tr, 331).
[24]Exhibit 35, a phone log dated the day after the accident that contains hearsay, is not admitted.
[25]There were two work orders for twenty-four signal installations as part of the contract with LaCorte.

[26]Exhibit 23, is only admitted to the extent it references dates prior to November 9, 1995. Also Exhibit 37, which is dated January 1996, is not admitted due to its post-accident date, as well as the testimony regarding when the signal was finally installed (Tr, 529).

[27]LaCorte responded to her letter but since such response (Exhibit 27) was not a letter prepared by the DOT, it is not admitted (see footnote 20).
[28]To the extent that Exhibit 23 is admitted (see footnote 26).
[29]The Court admits Exhibits 71-75, photographs taken two years after the accident, which were offered to impeach Mr. Maffucci's credibility as to the speed and thoroughness of his removal of the vehicles from the State's right-of-way. Schechtman v Lappin, 161 AD2d 118 (1st Dept 1990). Although these exhibits show vintage cars on the Maffucci property, they do not establish what was parked there on the day of the accident or if any vehicles blocked the vision of any drivers.
[30]Mr. Bellizzi is a licensed Professional Engineer in New York, New Jersey, Connecticut and Pennsylvania. He worked as an engineer for the New York City Department of Transportation and various private firms until he started his own business in 1984. He is a member of various professional organizations (see, Exhibit 63).
[31]Defense counsel objected to this testimony, contending that this road, which was built in 1932, is not subject to either the Design Manual or the AASHTO Manual (Tr, 612-615). Mr. Bellizzi argued that although the road was constructed in 1932, whenever a safety complaint is made, one looks to the current criteria to assess its validity (Tr, 620). The Court admits the testimony but gives it limited weight.
[32]Defendant also objected to the testimony of intersection sight distances in that it was not specifically mentioned in the CPLR § 3101 (d) response for this witness. The objection is overruled since paragraph 5 of such response includes "restricted sight distance" which could include intersection or stopping sight distance.
[33]In response to a question regarding his interpretation of how the accident occurred, Mr. Bellizzi summarized the police report without mentioning that the police concluded that Mr. Suarez ran a stop sign (Tr, 606-607).
[34]Counsel for defendant objected to Mr. Bellizzi's reliance on the Suarez EBT transcript. It is appropriate for an expert witness to base his opinion on a review of deposition transcripts of individuals with knowledge of the transactions underlying a lawsuit (see e.g. Bockelmann v New Paltz Golf Course, 284 AD2d 783 [3d Dept 2001]; Gilbert v Luvin, 186 Misc 2d 447, 451 Sup Ct, NY County 2000, revd on other grounds 286 AD2d 600). "[T]he trial court may admit expert testimony if it is ‘based upon facts either found in the record, personally known to the witness, derived from a "professionally reliable" source or from a witness subject to cross-examination' " (Schou v Whiteley, 9 AD3d 706 [3d Dept 2004], quoting Brown v County of Albany, 271 AD2d 819, 820 [3d Dept 2000], lv denied 95 NY2d 767 [3d Dept 2000]). In any event, Mr. Bellizzi also stated that his opinion would be the same without consideration of the transcript (Tr, pp 605-606).
[35] Mr. Dardeski, who spelled his name with a "D" at trial but his resume indicated his last name begins with a "G", is a licensed professional engineer in New York and sixteen other states. He was employed by the DOT for twenty-seven years (Exhibit R). His last position there was as Director of the Traffic and Safety Division, which monitored the operational safety of the traffic control devices of the State. He is presently a partner with Clough, Harbour and Associates, an engineering firm with business throughout the Northeast (Tr, 1100).
[36]Exhibits T, U, and V are not admitted into evidence. They were offered as aids to the Court, but some valid objections were raised by claimants' counsel and, in any event, the exhibits do not provide significant assistance in simplifying or making clear the matters under consideration (see generally Prince, Richardson on Evidence § 7-310 [Farrell 11th ed]).
[37]Although the Court did not admit the diagrams containing these calculations (Exhibits U, V and T), Mr. Dardeski did testify to these calculations that were based upon his visit to the accident location. Defense counsel elicited his calculation for northbound but failed to orally obtain such specific sight distances for westbound traffic.
[38]Exhibit 69 is admitted over defense counsel's objections (Tr, 1255-1259).
[39]Counsel for claimants asserts that there were eight "T-bone" type accidents at this intersection, but he has counted those that occurred because of turns being made by vehicles, either onto another road or from driveways.
[40]Seven of the thirty-four accidents reported in Exhibit 16 were animal related.