New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2004-033-527, Claim No. 100100


Synopsis



Case Information

UID:
2004-033-527
Claimant(s):
FABIAN MARTINEZ and DESIREE MARTINEZ,
both infants by their mother, HANNIA BARBOZA,and HANNIA BARBOZA, individually
Claimant short name:
MARTINEZ
Footnote (claimant name) :

Defendant(s):
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) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100100
Motion number(s):

Cross-motion number(s):

Judge:
JAMES J. LACK
Claimant's attorney:
Sanders, Sanders, Block & Woycik, P.C.
By: E. David Woycik, Jr., Esq. andHoward Eison, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 28, 2004
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
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 back.[1]
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 (
cf. 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 again.[2]

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 accident.[3]
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 (Tr. 47).[4]
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.[5]
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[6]
, 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 - 580).
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 accident.

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)[7]
, 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 - 47H).[8]
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 "daylight".[9]

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).[10]

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 evidence.[11]
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
curriculum vitaes.[12] It indicates 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 State.


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.
(emphasis added).

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
CPLR 3101(d)(1)(I) 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 area.[13]
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 271).
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 on
Duger v Estate of Carey, 295 AD2d 878.
In
Duger, 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 visible.
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).

(Smart, pp. 993-994).

In
Duger, 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.[14]
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 stated in
Smart, 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 intersection.
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 accident.

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 property.[15]
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.


September 28, 2004
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1]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.
[2]Claimant's church is the Jehovah Witness Kingdom Hall located on Old Willet's Path in Hauppauge, New York.
[3]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.
[4]These cites refer to the page of the trial transcript.
[5]Exhibit 29 is a Suffolk County police photograph taken the night of the accident.
[6]This is another Suffolk County police photograph of the intersection taken on the night of the accident.
[7]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.
[8]This exhibit was entered into evidence through the stipulation of the parties.
[9]The witness defined this term as opening up the intersection to give motorist the maximum sight distance.
[10]This question was asked within a reasonable degree of engineering certainty and was not objected to by defendant.
[11]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.
[12]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.

[13]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; M-2602)

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 improper.

[14]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 unconditional admissibility.
[15]Defendant never challenged the percentage of the foliage on its land as testified to by Robus.