MARTINEZ v. THE STATE OF NEW YORK, #2004-033-527, Claim No. 100100
FABIAN MARTINEZ and DESIREE MARTINEZ,
both infants by their mother, HANNIA BARBOZA,and HANNIA BARBOZA, individually
Footnote (claimant name)
THE STATE OF NEW YORK The Court sua sponte amends the caption to read The State of New York as the only defendant.
Footnote (defendant name)
JAMES J. LACK
Sanders, Sanders, Block & Woycik, P.C.
By: E. David Woycik, Jr., Esq. andHoward Eison, Esq.
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
September 28, 2004
See also (multicaptioned
On September 30, 1998, Hannia Barboza (hereinafter "claimant") was returning
home from her church when she was involved in a motor vehicle accident. The
accident occurred at approximately 10:00 p.m. at the intersection of Washington
Avenue and the Long Island Expressway South Service Road (hereinafter "Service
Road") in Brentwood, New York. Claimant's son and daughter were passengers in
the car; the son in the front passenger seat and the daughter in the
Claimant stated that all of the occupants were wearing seatbelts.
Washington Avenue is a north/south road which crosses over the Long Island
Expressway (hereinafter "LIE"). It is one lane in each direction with a turning
lane also in each direction (
Exhibit 27). Claimant was headed southbound and was stopped at the
light which intersects the Service Road, an eastbound only roadway which runs
parallel to the LIE. At the location of the accident, the Service Road is three
lanes across. The right/southern lane is only for right turns onto southbound
Washington Avenue. The middle lane is for traffic proceeding eastbound while
the left/northern lane is for either traffic proceeding eastbound or for left
turns onto northbound Washington Avenue (cf.
Exhibit 28). Trial
testimony established that the stop line on Washington Avenue is 32 feet to the
north from its intersection with the Service Road (cf.
Exhibit 51). The
intersection is controlled by a traffic light.
Claimant testified that she has lived in Brentwood, in the same house, for
approximately twenty years and that it was her custom to attend church services
on Wednesday evenings, accompanied by her children. Invariably, she took the
same route from her home to her church and back home
As she approached the intersection on the evening of the accident, claimant
noticed that the light was red in her direction and stopped at the stop line on
Washington Avenue prior to continuing southbound on Washington Avenue. While
stopped, claimant testified that she looked to the right toward the oncoming
traffic from the Service Road identifying Exhibit 25 as the view she had of the
Service Road on the evening of the
According to claimant, she had no view of the Service Road west of the
intersection due to the heavy growth of foliage next to Washington Avenue and
along the northern border of the Service Road. She further testified that she
could not see any lights coming from vehicles traveling east on the Service Road
When the light turned green, claimant stated that she again looked to the right
before proceeding estimating that she was traveling at 5 to 10 m.p.h. as she
entered the intersection. She further stated that it took her a second or two
to reach the intersection from the stop line. From the time she stepped on the
gas, claimant testified she never took her foot off the accelerator (Tr. 48).
She first saw lights coming toward her from the Service Road as she entered the
intersection and then heard an explosion and felt a bump (Tr. 49). The force of
the impact drove claimant's car onto a lawn of a house on the southeast corner
of the intersection and the motion of her car was stopped when it hit a parked
car. Claimant testified that she would not have proceeded into the intersection
if she could have seen the other vehicle approaching on the Service Road. On
cross-examination, claimant stated that it had rained earlier in the evening and
at the time of the accident the roads were wet.
Claimant next called Benny Balsamo. Balsamo was driving the other vehicle
involved in the accident. He was working on the incident date in Greenlawn, New
York until approximately 9:30 p.m. and lives in East Patchogue, New York. The
accident site is between these two locations and was on the route he regularly
took to travel home.
The witness testified that it was raining lightly at the time of the accident
and the roads were wet. Further, he said that the speed limit was 30 m.p.h. and
that he was driving at that rate of speed traveling in the left (north) lane of
the Service Road. In examining Exhibits 26 and 29, Balsamo identified the
foliage depicted in the photographs as appearing to be in the same manner as the
night of the accident.
He further testified that he was unable to see any cars on Washington Avenue
near the intersection with the Service Road due to the foliage. The witness
stated that the first time he noticed the traffic light at the intersection was
when he was approximately one mile away.
Upon approaching the intersection, the witness stated, he looked to his right
and left but was only able to see foliage. At this point, the traffic light had
turned yellow and Balsamo believed he was approximately 175 to 200 feet away
from the traffic light (Tr. 90). When he saw the light had turned yellow he
applied the brake, but his truck began to skid. Balsamo took his foot off the
brake and when he began to reapply pressure to the brake to stop the skid, his
foot slipped off the brake, such that his vehicle entered the intersection and
came into contact with the claimant's vehicle. The witness testified that he
never saw claimant's vehicle or its lights prior to coming into contact with it
in the intersection.
During cross-examination, Balsamo admitted that he may have been 250 feet from
the traffic light when he noticed that it had turned yellow. He also
acknowledged that the light might have been red when he entered the
intersection, but stated he could not be sure as to either of these facts
because he was busy trying to stop his vehicle.
The only other witness to testify who saw the accident was Robert Ludwig.
Ludwig was called as a witness by defendant. He was traveling on a motorcycle
behind Balsamo and stated that he was approximately 100 feet behind Balsamo's
vehicle in the right lane approximately 500 feet from the intersection. He
testified that his rate of speed was 55 to 60 m.p.h. and he estimates that
Balsamo was going slightly slower because he was "starting to catch up" to him
(Tr. 547). Ludwig noticed the traffic light when he was about 300 feet from
the intersection and said that it was red. At this point, he states that the
vehicle was still 100 feet in front of him and 200 feet from the intersection.
According to Ludwig, when Balsamo's vehicle was 5 to 10 feet from the
intersection it began to skid. Ludwig estimates that the vehicle was traveling
40 to 50 m.p.h. when it skidded into the intersection and impacted with
claimant's automobile. Ludwig described the impact as "severe" (Tr. 553). The
witness testified that, from his vantage point, he could see claimant's car
approaching the intersection.
On direct examination, Ludwig stated that the light was red from where he first
noticed it and he started to slow down because he knew it would not turn green.
However, he stated that the Balsamo's vehicle did not slow down and testified
that while it had rained earlier in the evening, it was not raining at the time
of the accident. According to the witness, the roads were, for the most part,
dry with some wet areas.
In examining claimant's Exhibit 6, Ludwig stated that the foliage depicted in
the exhibit was thicker and greener than what was present on September 30, 1998
at the time of the accident. In fact, the witness described the foliage on the
night of the accident as "sparse" (Tr. 564). As to the foliage that did exist,
he stated that it was only present north of the chain link fence which runs
parallel to the Service Road. During cross-examination, the witness stated that
there were no leaves, only twigs where the foliage was (Tr. 575). However, on
further cross-examination after examining Exhibit 29, Ludwig admitted that there
was dense foliage at the intersection at the time of the accident. After being
shown Exhibit 28
, Ludwig further conceded that there was an abundance of trees, shrubs and
bushes along the Service Road running for at least 75 feet west from the
intersection. He then agreed that unless a driver is 100 feet back from the
intersection, the foliage would block the view of Washington Avenue (Tr. 579 -
Claimant also called Suffolk County Police Officer Christine Cunningham.
Cunningham responded to the accident scene on September 30, 1998. She testified
that she had patrolled this area for years and drove through this intersection
at least twice a day. The officer stated that the foliage limited the sight
distances of drivers on Washington Avenue looking toward the Service Road and of
drivers on the Service Road looking toward Washington Avenue. Cunningham
testified that she did not issue any traffic summonses as a result of the
Claimant called four more witnesses: Frank Slavik, Bruce Bijesse, Robert Robus
and William Gorski. Slavik and Bijesse worked for the Suffolk County Department
of Public Works (hereinafter "DPW") at the time of the accident. Slavik stated
that DPW divided Suffolk County into three zones for work purposes and that he
was in charge of Zone 1 which includes the portion of the Service Road that
crosses Washington Avenue. According to both witnesses, the County's area of
responsibility is from the sound barrier on the south side of the Service Road
to the chain link fence on the north side of the Service Road. Bijesse worked
under Slavik and was in charge of a work crew. Both witnesses were familiar
with the intersection and neither could recall a crew from defendant trimming
any of the foliage within the State's area of responsibility north of the chain
link fence. According to Bijesse, no DPW crew ever pruned bushes or foliage in
Suffolk County's area of responsibility south of the chain link fence.
Slavik acknowledged that Suffolk County had received complaints concerning this
intersection as well as sight distance problems at the intersection (Exhibits
31, 35, 37 and 40). Bijesse investigated three of these complaints (Exhibits
31, 37 and 40)
, declaring no sight problem existed because the intersection is controlled by a
traffic signal. Each of the witnesses admitted that eastbound vehicles
traveling on the Service Road and southbound vehicles on Washington Avenue would
be unable to see each other due to the foliage.
Robus and Gorski worked for the NYS Department of Transportation (hereinafter
"DOT") at the time of the accident. Robus was the resident engineer-in-charge
of the Islip area from 1995 through 2003. Gorski was the highway maintenance
supervisor for the area. Robus testified that he was familiar with the
intersection and had regularly driven through it proceeding from one work
location to another. Gorski stated that he had only seen the intersection from
the LIE, a State maintained road. Gorski admitted that the foliage existing on
defendant's property was not maintained (Tr. 356). In examining the area
through claimant's photographs, Robus testified that two-thirds of the bushes
and foliage are located on property maintained by defendant (Tr. 347).
The last witness to testify for the claimant was Joseph Champagne, an
engineering expert. During his direct testimony, Champagne explained that
Exhibit 43 showed that defendant's right-of-way extended from the sound
barrier south of the Service Road to the sound barrier north of the North
Service Road. In other words, defendant owned the area from the south sound
barrier to the north sound barrier, which includes both service roads and the
LIE. However, Champagne indicated that, through agreement, Suffolk County
maintains both service roads.
Champagne stated that he was familiar with the New York State Manual for
Highway Maintenance (Exhibits 47A -
The manual, according to Champagne, directs defendant to conduct semi-annual
inspections of roadside brush and foliage to schedule cutting and trimming
(§3.233 Exhibit 47H). Robus had earlier testified that these were only
guidelines and that no inspections had taken place in the three years prior to
the accident that he had been the resident engineer.
Champagne opined that planning sight distances for a controlled intersection
are no different than planning for an uncontrolled intersection. The objective,
according to the witness, is to give drivers as much sight distance as possible
to make the intersection as safe as possible. Champagne recognized that it is
impossible under certain circumstances to give motorists optimal sight distances
(e.g. buildings on the corner, sound barriers, bridge abutments, etc.).
However, he declared that foliage is not the equivalent of other
non-environmental obstructions because it can be trimmed, cut or shaped to
provide motorists with adequate sight distances.
In designing an intersection, the designer must recognize that people disobey
traffic signals, the expert explained. The intersection then becomes as if it
is uncontrolled and the designer should
It was Champagne's opinion that defendant deviated from good and accepted
engineering practices in failing to daylight the intersection by removing those
hazards which were easily removed or controlled , i.e. the foliage (Tr. 438).
It was his further opinion that defendant's failure to maintain the foliage at
this intersection was a contributing cause of the accident (Tr. 438). Lastly,
the expert opined that defendant failed to adhere to good and accepted
maintenance policies (Tr. 439).
The last witness to testify during the trial was defendant's engineering
expert, Bruce Savik. Prior to his testimony, claimant objected and asked that
the witness be excluded. The basis for claimant's objection is that claimant
had rejected defendant's expert disclosure, pursuant to CPLR 3101(d), as
inadequate and maintained at trial that the disclosure fails to meet the
requirements of the statute. Defendant's disclosure (Exhibit 55) and claimant's
letter rejecting the disclosure (Exhibit 56) were entered into
Defendant's disclosure was made on or about August 11, 2002 and objected to on
or about September 2, 2003.
In opposition to claimant's objection, defendant argued that the disclosure was
sufficient. Defendant argued that while its disclosure named several
individuals, each had "distinct backgrounds and distinct CV's" (Tr. 636).
Defendant's argument continued that the number of the experts are redundant
because some of the individuals retired and that the areas of testimony are well
delineated. "The CV is very clear. It delineates what he's going to testify to
and he's been here. So I just want to make sure that the record reflects that
clearly he's qualified, competent and should be able to testify and the
disclosure was sufficient." (Tr. 638)
The Court reserved decision as to this issue and allowed Savik to testify. At
this time the Court grants the application of claimant and precludes the
testimony of defendant's expert, on the basis that the CPLR 3101(d) disclosure
is deficient. In its objection to the expert disclosure, claimant's counsel
states ". . . your expert disclosure [is] not compliant with the specificity
required pursuant to CPLR 3101(d). Among other things, you failed to provide
the opinions of the various experts or the basis for their opinions" (Exhibit
56). Counsel further indicated that he would object to the offer of an expert's
opinion at trial. No response was made by defendant to this rejection.
The disclosure lists five experts and has four separate
that any reports, if prepared, would be exchanged. As to the opinions of the
experts, the disclosure states:
The circumstance that existed at the time of the accident was a controlled
intersection and not defective or negligent. They may testify/opine that the
road and traffic control devices at the accident location were reasonably safe
for the traveling public. They will testify with respect to the geometrics of
the roadway, roadway signage, traffic signals and operation of traffic signals,
and the manner in which the traffic signals at that location operate. The
existing traffic signal and related control devices were in compliance with all
existing relevant standards and regulations. The existing road markings and
signs were in compliance with all existing relevant standards and regulations.
They may testify that the changing standards and guidelines do not require
upgrading the roadway to current standards.
The accident was not caused by any negligence on behalf of the State. There
was absolutely no departure from or violation of existing standards. The
accident was not caused by the existence of foliage. Regardless, the area in
question was not controlled or maintained by the State of New York.
State experts' testimony would address and refute the testimony of any
claimant's expert. They will rely upon the same material and documents that
claimant's expert would rely upon, and possibly upon additional documents. They
will testify with respect to the roadway and related control devices were in
compliance with all existing relevant standards and regulations [sic].
The alleged injuries were not the result of any negligence on the part of the
Their testimony will be based upon their experience and the materials normally
relied upon by experts in the field. Their testimony will be based upon their
visits to the subject situs, the guidelines, protocols, rules, regulations,
engineering instructions, design manual, project reports, the accident report,
the evidence adduced at trial, the discovery had and exchanged and measurements,
if taken, at the situs of the accident.
They may opine that the subject situs was reasonably safe for the traveling
public that were traveling in accordance with the vehicle and traffic law and
the other existing rules at the time of the accident. The highway was safe for
those who acted reasonably and abided by the rules and regulations.
The existing roadway, design, clearance, slope and related appurtenances were
in compliance at that location at the time of the accident. They will testify
that the roadway and surrounding area in question were designed and constructed
in accordance with good and accepted engineering practice and standards at the
time of its original design and construction and at the time of the accident.
They will further testify that the design and construction at the accident
location is one that was and is commonly used by the New York State Department
of Transportation and accepted in the design and construction of roadways.
Their testimony will address and refute the opinions of claimant's expert as
set forth in claimant's expert's report, if provided, and address the issues in
the Bill of Particulars and the claim.
They will base their opinions on the diagrams, photographs, the accident report
and police investigation, depositions, testimony at trial, claim and bill of
particulars, items exchanged during discovery, the plans, the accident history
and the methodology utilized, and their expertise.
The accident was caused by the conduct of individuals other than the State.
Regardless, the State is absolutely protected by immunity here.
In relevant part, CPLR 3101(d) states:
(I) Upon request, each party shall identify each person whom the party
expects to call as an expert witness at trial and shall disclose in reasonable
detail the subject matter on which each expert is expected to testify, the
substance of the facts and opinions on which each expert is expected to testify,
the qualifications of each expert witness and a summary of the
grounds for each expert's opinion. However, where a party for good cause
shown retains an expert an insufficient period of time before the commencement
of trial to give appropriate notice thereof, the party shall not thereupon be
precluded from introducing the expert's testimony at the trial solely on grounds
of noncompliance with this paragraph. In that instance, upon motion of any
party, made before or at trial, or on its own initiative, the court may make
whatever order may be just.
Defendant clearly identifies each person it expects to testify and their
qualifications. However, the remainder of defendant's disclosure is completely
devoid of the specificity required by CPLR 3101(d). Defendant has only provided
what appears to be boilerplate language as disclosure. While defendant argues
that its experts are distinct, its disclosure treats them as a fungible entity.
According to the disclosure, the opinions of the various experts will say that
defendant is not negligent and will be contrary to claimant's expert, and they
will rely upon whatever claimant's expert relies on and maybe more. Upon
reading this disclosure, it does not appear that defendant had consulted with
any experts, but rather wrote what defendant thought may be needed at trial.
Whether to let an expert witness to testify or not "based on the party's
failure to comply with
is left to the sound discretion of the court. .
."(McGlauflin v Wadhwa
, 265 AD2d 534; see also Hubbard v Platzer
260 AD2d 605). Conclusory statements of experts, rather than the sum and
substance of the experts, are inadequate (Brossoit v O'Brien
, 169 AD2d
1019). Further, CPLR 3101(h) states, in relevant part:
A party shall amend or supplement a response previously given to a request for
disclosure promptly upon the party's thereafter obtaining information that the
response was incorrect or incomplete when made, or that the response, though
correct and complete when made, no longer is correct and complete, and the
circumstances are such that a failure to amend or supplement the response would
be materially misleading.
Upon the rejection of its expert disclosure, for the grounds of
inadequacy/incompleteness, defendant did nothing. After having claimant's
counsel point out the incompleteness of the defendant's expert disclosure,
defendant should have supplemented its disclosure (CPLR 3101(h)). Defendant's
disclosure is filled with qualified and conclusory statements, which are
attributed to all experts together. There is no distinction as to which
materials each of the experts would be relying upon, the subject matter on which
each expert would be expected to testify, the substance of the facts and
opinions delineated for each expert or a summary of the grounds of each expert's
opinion. The scarcity of the required elements in reviewing defendant's expert
disclosure, once again could lead a reader to believe that none of the experts
had been consulted prior to defendant's exchange of the disclosure.
The Court finds that the disclosure fails to comply with the requirements of
CPLR 3101(d). The Court further finds that claimant would be prejudiced by the
disclosure, in that claimant would have to anticipate the testimony of five
experts, anticipate the division of testimony for each, guess as to the
opinions of each expert and the grounds for each of their opinions. The Court
grants claimant's application and precludes defendant's expert.
The Court must next determine whether the failure to maintain the foliage and
its resultant overgrowth was a proximate cause of claimant's accident.
Towards that end, the facts, as found by the Court, are as follows: claimant
and her children were stopped at the stop line for a red light southbound on
Washington Avenue approximately 32 feet from the intersection; the light for
eastbound traffic on the Service Road was green; the weather was rainy and the
pavement was wet; the light facing the Service Road turned yellow; Balsamo
attempted to stop but failed to stop prior to entering the intersection; at the
time Balsamo entered the intersection, he proceeded through a red light; and,
claimant was unable to see any eastbound traffic while stopped at the light on
Washington Avenue. The Court finds that neither defendant nor Suffolk County
performed any maintenance of the foliage in the area prior to the date of the
accident. The Court next turns to the question of whether in failing to
maintain the foliage at the intersection defendant created liability. It is
undisputed that the Service Road at the intersection of Washington Avenue is
maintained by the County of Suffolk. Notwithstanding defendant's ownership,
maintenance responsibility was transferred to Suffolk County pursuant to NYS
Highway Law §§10(25) and 46. Claimant argued at trial that defendant
as the owner of the property has a nondelegable duty to maintain the area
especially in light of Suffolk County's failure to maintain the
While the Court does not reject defendant's post-trial memorandum, the Court
rejects defense counsel's improper attempt at submitting evidence of a contrary
position from another case after the close of trial. Those submissions have
been disregarded and not read by the Court, except for an examination of the
captions to determine the parties in the Supreme Court actions.
If the parties discussed were private citizens, the Court would accept this
argument and allow the defendant and Suffolk County to apportion responsibility
by themselves after the claimant was compensated. However, the parties are
governmental entities. For this Court to impose such a liability upon the
defendant for Suffolk County's failure to maintain their portion of the foliage
would be an improper intrusion into the planning and decision-making functions
of these governmental entities (Muller v State of New York
, 67 NY2d
Defendant posits that the existence of the shrubs is of no consequence due to
the existence of a traffic light. In support of this position, defendant relies
Duger v Estate of Carey
, 295 AD2d 878.
, plaintiff was traveling on a county road when a vehicle
disregarded a stop sign and hit plaintiff's vehicle. According to the record,
an intoxicated, rear seat passenger covered defendant Carey's eyes prior to the
intersection causing defendant Carey to disregard the stop sign and enter the
intersection. Plaintiff also sued the County of Tompkins for allowing a
dangerous condition to exist. A hedgerow was planted on private property at the
intersection and prevented plaintiff from observing the approaching traffic on
the intersecting road. The Court held that the presence of the hedge was not
the proximate cause of the accident. The stop sign was clearly visible and if
defendant Carey obeyed the sign, plaintiff's vehicle would have been clearly
However, by comparison, in
Smart v Wozniak
, 58 AD2d 993, plaintiff's vehicle was northbound on
Albion Road and defendant was eastbound on Lockport Road. Lockport Road was
controlled by a stop sign, while there was no traffic control device on Albion
Road. Defendant stated that he stopped at the stop sign but was unable to see
plaintiff's vehicle on the intersecting road due to a snowbank and brush along
the roadway. Defendant did not notice the plaintiff's vehicle until he was in
the intersection and unable to avoid the collision. Plaintiff testified that
her vision of the intersecting road was also obstructed. At trial, the jury
apportioned liability 10% to Wozniak, 40% to the town and 50% to the county.
That Court found that the verdicts were not contrary to law or against the
weight of the evidence.
The liability of the county rests upon its duty to take reasonable measures to
correct "a condition on or adjacent to the highway" which "renders it unsafe for
persons using it in the exercise of reasonable care" (Meil v Syracuse
Constructors, 19 AD2d 10, 13; see Highway Law, § 139). This duty
extends not only to conditions on the traveled pavement but also to conditions
adjacent to or above the highway which may reasonably be expected to result in
injury to users (Julian v State of New York, 187 Misc 146, 148; see
Woodcock v County of Niagara, 52 AD2d 1087; Arno v State of New
York, 20 Misc 2d 995, 997).
, pp. 993-994).
, the hedgerow in question was on private property and, therefore,
the municipality did not have a duty to maintain the hedge. In addition,
defendant's actions were clearly not negligent but were reckless instead. But,
the present case is more akin to Smart
where neither motorist had
visibility of the intersecting roadway.
In the instant case, the testimony of every credible witness was that a vehicle
stopped at the stop line on southbound Washington Avenue was unable to see
eastbound traffic on the Service Road. The photographs in evidence bear out
this proposition as well.
Claimant had every reason to expect that traffic coming from the other way
would stop and that she had the right-of-way when the light turned green for
traffic in her direction. Balsamo's testimony was not that he attempted to run
through a yellow light before it turned red and then tried to stop, as
characterized by defendant. Rather, Balsamo explained that he thought about
trying to go through the yellow light but reconsidered before making the
attempt. He then tried to brake but his vehicle went into a skid on the wet
pavement. When he lifted his foot and attempted to brake again his foot slipped
off the brake pedal, propelling his vehicle into the intersection and the
collision with claimant's automobile. The Court gives almost no weight to the
testimony of Ludwig. Ludwig, in opposition to every other witness, including
the police officer, testified that the weather was fine, not raining and that
the pavement was dry, except for a couple of puddles. As noted, all other
witnesses testified to rain and wet pavement. In addition, Ludwig first
testified that there was no foliage present on the night of the accident - "just
twigs" (Tr. 575). But, then on cross-examination, having been shown Exhibits 28
and 29, he admitted the presence of substantial foliage (Tr. 575 - 576).
Defendant clearly had a duty to maintain its own portion of the foliage at this
intersection. Defendant retained to itself the maintenance of that portion of
the roadway which was north of, and adjacent to, the county maintained road. As
, defendant had a duty to maintain conditions adjacent to its
roadway which may reasonably result in injury to others. In this case,
defendant allowed trees, brush and other foliage which were located within its
maintenance area to become overgrown and interfere with the ability to view
another municipality's roadway. It was claimant's uncontroverted testimony that
if she had been able to see the Service Road and had seen a vehicle coming
toward the intersection, she would not have entered the intersection. Thus,
without defendant's negligence, claimant would not have proceeded into the
Defendant argues that claimant has presented no evidence that the State had any
notice of a dangerous condition at this location. However, Robus testified that
he had driven through this area many times during his tenure as DOT's resident
engineer from 1995 to the date of the accident. Further, in evidence are the
complaint forms related to sight distance at the intersection. One of the
complaints (Exhibit 31) which originated in Senator Caesar Trunzo's office, was
transferred to Suffolk County by DOT on August 14, 1997. On December 9, 1994,
an individual from DOT made a complaint to Suffolk County (Exhibit 37)
concerning sight distance at the intersection. The Court finds, therefore, that
defendant was fully aware of the limited sight conditions as they existed at the
time of the accident.
Further, defendant totally ignored its own foliage maintenance guidelines. The
Court acknowledges that the guidelines are just that, guidelines, not a
requirement. But, while only guidelines, defendant has a responsibility when
aware of a dangerous condition not to continue to ignore its own maintenance
guidelines. It is obvious that defendant never engaged in any foliage
maintenance at this intersection.
In sum, the Court finds that the foliage contributed to the cause of the
accident. It was, however, not the sole proximate cause of the accident. Given
the fact that Balsamo went into a skid and that his foot slipped from his brake
such that he was unable to prevent his vehicle from passing through the red
light and entering the intersection, the Court finds that the negligent
operation of his vehicle was the substantial contributing cause to the accident.
Accordingly, the Court finds that Balsamo is 55% responsible for the
Based on claimant's uncontroverted testimony that she never took her foot off
the accelerator prior to the accident and was, thus, totally unaware of
Balsamo's approaching vehicle in the intersection, the Court apportions no
liability to the claimant. The remaining 45% responsibility must be apportioned
between defendant and Suffolk County. The Court relies on the testimony of
Robus, that approximately two-thirds of the foliage is on defendant's
Therefore, the Court finds defendant 30% liable and Suffolk County 15% liable.
A trial on the issue of damages will be scheduled as soon as practicable.
Let interlocutory judgment be entered accordingly.
Hauppauge, New York
HON. JAMES J. LACK
Judge of the Court of
Barboza's son, Fabian Martinez (age 14 at the
time of the accident), and daughter, Desiree Martinez (age 6 at the time of the
accident), are also claimants in this action. Neither Fabian nor Desiree
testified during the trial. For purposes of this liability decision, the term
"claimant" shall refer only to Hannia Barboza.
Claimant's church is the Jehovah Witness
Kingdom Hall located on Old Willet's Path in Hauppauge, New York.
The Court notes that Exhibit 25 is a 2' x 3'
photograph of the accident location taken during the day at some time after the
claimant's accident. This exhibit, along with twenty-seven additional 2' x 3'
photographs of the incident location, which were all taken after the accident -
- in some cases years after the accident - - were stipulated into evidence
without any limitation by agreement with defendant.
These cites refer to the page of the trial
Exhibit 29 is a Suffolk County police
photograph taken the night of the accident.
This is another Suffolk County police
photograph of the intersection taken on the night of the accident.
The Court notes that these poster board size
copies of the complaints were admitted into evidence by stipulation of the
parties. As with the photographs, these complaints (as well as ten others) went
into evidence without any limitation. No objections were made by defendant as
to authenticity, relevance, or hearsay.
This exhibit was entered into evidence through
the stipulation of the parties.
The witness defined this term as opening up
the intersection to give motorist the maximum sight distance.
This question was asked within a reasonable
degree of engineering certainty and was not objected to by defendant.
Exhibit 56 was admitted over defendant's
objection. Defendant objected to its admission based on the fact that it was
not the original letter. However, the letter had originally been sent to
defense counsel which he admitted receiving and maintaining in his file.
The CV for Emilio Sosa is not attached to
Exhibit 55. It appears, however, that this may have simply been an oversight as
there is one odd page that does not match the other expert's CV's.
In its post-trial memorandum defendant
argues against this position. To support the State's argument, defendant's
counsel, in his post-trial submission, included a memorandum of law and an
affirmation of an attorney from claimant's law firm, which firm also represents
her in the Supreme Court actions arising out of this incident. In a letter
after the defendant's submission, claimant's counsel asks that defendant's
post-trial memorandum be rejected as an improper attempt to admit evidence by
the submission of the memorandum of law and the attorney affirmation. In
examining the captions on these exhibits, the Court can discern that the
claimant has brought two other actions arising from this accident. One is
against the County of Suffolk and the Town of Islip, and the other is against
Robert Robus and William Gorski.
The establishment of the court system is found in Article VI of the New York
State Constitution. Article VI §7 states that the Supreme Court shall
"have general original jurisdiction in law and equity and the appellate
jurisdiction herein provided."
The Supreme Court in this State is a court of general original jurisdiction in
law and equity (see N. Y. Const., art. VI, § 7, subd. a.) and, in
conformity with its all inclusive powers, the court is authorized in any action
to render such judgment as is appropriate to the proofs received in conformity
with the allegations of the pleadings, irrespective of the nature of the relief
demanded, subject, of course, in a proper case, to the imposition of such terms
as may be necessary to protect the rights of any party.
Kaminsky v Kahn
, 23 AD2d 231, 236).
Separately, the Court of Claims is established by NY Const. Art. VI §9,
which states, in relevant part that "[t] he court shall have jurisdiction to
hear and determine claims against the state or b the state against the claimant
or between conflicting claimants as the legislature may provide." The Court of
Claims is limited to awarding money damages against the state of New York
(Silverman v Comptroller, 40 AD2d 225).
This Court, prior to trial, was fully aware that claimant has pending cases in
Supreme Court against other parties arising from this incident. Prior to the
commencement of this trial, claimant's counsel requested an adjournment pending
the outcome of the trial in Supreme Court. The application was denied.
Claimant's counsel then brought an order to show cause requesting the same
relief and that was denied. Counsel appealed this Court's order, denying the
stay of the Court of Claims trial, to the Appellate Division, Second Department.
On September 22, 2003, the Appellate Division denied claimant's motion and
refused to issue a stay of the trial ( ____ AD2d _____, 2003-07864;
Claimant has no choice but to seek compensation from the parties in separate
courts. Thus, the theories by which they seek to recover may vary according to
defendant. The State is attempting to use theories, arguments and
representations of counsel as an admission which would then prevent claimant
from seeking compensation from all appropriate parties. This "evidence" would
not have been admissible during trial. For defense counsel to attempt to
introduce this, after trial, as evidence against the claimant, is blatantly
In its post-trial memorandum, defendant
argues against claimant's use of certain photographs depicting the foliage at
the intersection. Once again, claimant introduced thirty photographs (Exhibits
1 - 29 and 54) of which only two depicted the intersection at the time of the
accident (Exhibits 28 and 29). The Court reiterates that defendant stipulated to
all of the photographs being entered into evidence during a pre-trial marking of
exhibits with claimant's counsel. No limitations were placed on the usage of
these photographs in the stipulation, and no objection was raised concurrent
with defendant's stipulation of these photographs into evidence. The Court
finds that it is disingenuous for defense counsel to raise objections to the
photographs in a post-trial memorandum long after he stipulated to their
Defendant never challenged the percentage
of the foliage on its land as testified to by Robus.