GAZZA v. THE STATE OF NEW YORK, #2004-033-528, Claim No. 102190
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
JAMES J. LACK
Rebore, Thorpe & Pisarello, P.C.By: William J. Pisarello, Esq.
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
September 28, 2004
See also (multicaptioned
This is a timely filed claim based on negligence for alleged injuries suffered
by Joseph Gazza (hereinafter "claimant"). On May 18 - 20, 2004, a bifurcated
trial was held to determine liability.
On April 6, 1998, claimant was driving to his office at approximately 3:30 p.m.
when he was involved in a motor vehicle accident at the intersection of Del
Drive and NYS Route 110, in the Town of Babylon, New
At this intersection controlled by a traffic light, Route 110 is a busy
north/south roadway. There are three northbound and three southbound lanes. In
addition, there are two left turn lanes for each direction as well as one right
hand turn lane (Exhibit 2A). Del Drive has two lanes in each direction.
Claimant has worked in the area of this intersection for approximately 25 to 30
years as a contractor and his office is on Route 110 a few hundred feet south of
He was traveling on Del Drive in a westerly direction and thus had to make a
left turn onto Route 110 to proceed to his office. As he approached the
intersection, the light was red so he stopped. When it turned green, he "took
off" (Tr. 65, 5/18)
, but could not remember if the green light that he saw was an arrow or a solid
light (Tr. 66, 5/18). He also stated that he saw northbound vehicles on Route
110 at a complete stop (Tr. 66, 5/18). During cross-examination, claimant could
not remember if he was in the right lane or left lane prior to entering the
intersection. Claimant was confronted with prior testimony from a deposition in
which he testified that he had been in the right lane prior to making the left
turn. Claimant did not appear to recall the previous testimony, but states that
he must have given the answer (Tr. 76, 5/18). He does not recall the collision.
The other vehicle involved in the accident was a Suffolk County Police cruiser
driven by Police Officer Thomas Russo. Russo indicated that on that day he was
working an 8 a.m. to 4 p.m. tour of duty. While on patrol at approximately 3:30
p.m., he was headed northbound on Route 110 stopped at a red light at the
intersection of Allen Boulevard and Route 110 one block south of the accident
location. Russo proceeded northbound when the light turned green and could see
the light was red for northbound traffic at the intersection of Del Drive with
Route 110. The officer was in the left lane and no one was ahead of him as he
drove toward the next intersection. Traffic was stopped in the east two lanes.
At some point before the officer had to stop, the traffic light turned green
for northbound traffic on Route 110, as well as a green arrow for northbound
traffic turning left/westbound onto Del Drive. Russo began to accelerate and
was traveling approximately 40 to 45 m.p.h. as he entered the intersection. The
officer states that he was in the left lane for northbound traffic with no
vehicles in front of him in the same lane. However, according to the officer,
the two lanes east of his had vehicles stopped in them. Russo testified that
claimant's vehicle was directly in front of him when he first saw it (Tr. 10,
Suffolk County Detective Sergeant Terrence Fanning also testified on claimant's
behalf. Fanning indicated that he responded to the accident location to
conduct an investigation. At the intersection, Fanning observed that the left
turn signal to turn west on Del Drive for northbound traffic on Route 110 was
turned approximately 90°. Fanning explained that made the signal appear as
if it were a left turn arrow for vehicles on Del Drive to turn south on Route
110 (Tr. 32, 5/18). The witness identified the condition in Exhibits 2A - F.
Claimant's last witness was James Hahn, an expert on traffic light design and
maintenance. Hahn described the light fixture as it was attached in the
intersection and how it remained steady. The witness, using Exhibit 2F,
described it as follows:
If we look at 2F in the very top left of the photograph, we see a wire which is
called a span wire and on that is a saddle that attaches the next device below
which is . . . called a swivel balancer and then there's a pipe that runs down
to the signal head. Actually, there's something behind that which we'll look at
in another photograph. Other than you see here the wiring that goes into the
signal head. That's the coil over on the upper left corner of the diagram. The
wiring has nothing to do with the suspension of the signal. It just simply
provides the power to the signal lights.
If we look at photograph 2E in the circled item, we can see that there's a cross
piece there that is supporting the two left turn signals That cross piece is
attached to the vertical pipe that goes up into the swivel balancer.
(Tr. 23 - 24, 5/19). Hahn stated that this mounting
system was standard in the industry.
According to the witness, the lights have a mounting mechanism which is
designed to keep them from twisting.
The way this works is that the top of the signal heads and this is standard in
the industry, it's an ITE standard, Institute of Transportation Engineering
standard that requires a serrated top and a specific diameter pole to the top of
the signal for the mounting pipe ware. This serrated part here is - the top
and bottom of every signal is interchangeable with the hardware and various
manufacturers. So if I can put a Kraushein signal in this application, I can
put an Eagle signal in this application. They would both lock to this locking
mechanism because they have the number of teeth with the same spacing.
The signal is held against this locking . . . device here and that's screwed
into this piece of - this fitting here. Whatever it is, it could be a cross
arm. It could be simply a vertical piece of pipe as you see here. There is a
serrated locking ring and the serrated locking ring has two ears on it which fit
in the notches in this piece of hardware.
Once you put this device together, you position the signal, rotate it the way
you want it and then you tighten this down . . . Once you get it tight, secure
it with this set screw.
(Tr. 27 - 28, 5/19). From the photographs in evidence,
the witness averred that this was the type of locking mechanism on the light at
The witness stated, based on his experience, that he would never expect a light
to twist or turn when it is locked into place. If a light does twist then the
serrated teeth tend to break off. Hahn stated that if the teeth are not
replaced then twisting will eventually happen again.
In observing the light in question to this case, the expert said that the
mechanism had to be loose and the teeth stripped because it would not turn
unless the teeth were out of mesh or sheared off. Given the history that this
light had twisted on two prior occasions,
Court will apply the meaning originally agreed to by counsel: the individual
left turn signal which had twisted on April 6, 1998 had also previously twisted
on January 28, 1998 and February 26, 1998.
the witness opined that the light had not been repaired properly on the two
prior accessions. The witness stated that the locking mechanism should have
been investigated and changed. This proper repair would have prevented the
light from twisting again.
On cross-examination, Hahn admitted that a passing vehicle, specifically a
truck, could hit the light and twist it. The witness said this commonly happens
with a garbage truck with extending arms that lift dumpsters. However, such an
occurrence with enough force to break the locking mechanism and twist the light,
would visibly damage the light itself which did not occur in the instant case.
Defendant's only witness was Emilio Sosa an employee of DOT and an expert in
traffic light design and maintenance. On direct examination, Sosa observed that
defendant's documents concerning the repairs at this intersection for the light
twisting (Exhibit B) give no indication as to what caused the light to twist.
Sosa stated that a number of things could cause a traffic light to twist: "wind,
being pushed by an oversized vehicle or a vehicle loaded too high, being
impacted by a vehicle, being snagged by a tarp as a vehicle drives underneath"
(Tr. 36, 5/20). The witness stated that it was possible for a truck to hit the
signal and not damage it.
On cross-examination, the witness stated it was important to make sure that the
lights do not twist and that they are properly locked into place. Further, in
his experience, the expert admitted that he had personally never seen a light
twisted due to impact with a vehicle that was not damaged (Tr. 40, 5/20). Sosa
testified that the design of the locking mechanism, in place at the accident
location, do not have a high frequency of failure (Tr. 42, 5/20).
The facts, as found by the Court, are as follows: while traveling west on Del
Drive claimant approached the intersection of Del Drive and Route 110, with the
intent to turn southbound on Route 110; claimant stopped at a red light at the
intersection; the left turn arrow for northbound to westbound traffic on Route
110 had twisted such that it faced westbound traffic on Del Drive; the light
changed to green for Route 110 allowing northbound and northbound to westbound
traffic to proceed; claimant observed the left turn arrow turn green and
proceeded into the intersection; and as a result, claimant and the northbound
police officer each had a green light at the time of the accident. The Court
finds also that the light that twisted on April 6, 1998, did so due to improper
repairs on two prior occasions.
The Court next turns to the question of defendant's negligence in failing to
maintain the traffic light at the intersection. Defendant had been to this
intersection on two occasions prior to the accident. On both of those
occasions, the same turn light had to be repaired for a similar condition.
Defendant, through direct testimony of Sosa and Exhibit B, demonstrates no cause
for the twisting on any of the dates. The Court agrees that the initial cause
of the light twisting on January 28, 1998 is unknown. However, the cause of the
initial twisting is irrelevant. What is relevant in the instant case is what
type of repairs occurred. The record is devoid of any testimony as to what
specific actions defendant's employees took in correcting the twisted light on
January 28, 1998 and again on February 26, 1998. Claimant's expert offered an
opinion as to the cause of the twisting on April 6, 1998, namely, that due to
previous improper repairs the light was bound to loosen again and twist, as
demonstrated by the light twisting twice after the initial repair. Defendant's
expert was less convincing. While offering testimony as to how a light could
possibly twist, he offered no opinion as to the cause of the twisting on April
While the State of New York is not the insurer of the safety of its roads
Marshall v State of New York
, 252 AD2d 852), "[t]he Department of
Transportation has the duty to install, operate and maintain traffic control
devices at the intersections of State highways (Vehicle and Traffic Law §
1681)" (Wood v State of New York
, 112 AD2d 612). In Meyer v State of
, 51 AD2d 828, the Court found that the State's failure to correct a
problem with a traffic light, which had been
over several months prior to
the accident, was negligence in light of the State's duty to maintain the
As previously stated, defendant had notice that there was a twisting problem
with the traffic light for several months prior to the accident. There is no
evidence to prove that defendant's repair and/or investigation into the problem
with the traffic light were adequate. Thus, the Court finds that defendant's
improper and negligent repairs of the traffic light created the condition on
April 6, 1998. The Court also finds that defendant's negligence was the sole
proximate cause of the accident. The uncontroverted testimony is that claimant
and the police officer both observed a green light. Therefore, each driver was
correct in assuming that he could enter the intersection and have the other
drivers obey their red signals (
Baughman v Libasci
, 30 AD2d 696). The Court does not find that the
claimant's familiarity with the intersection either relieves the defendant of
liability or imposes liability on claimant.
Accordingly, the Court finds defendant completely liable in respect to
claimant's accident which occurred on April 6, 1998. 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
Del Drive is an east/west roadway which
intersects with Route 110. East of the intersection with Route 110, the road is
known as Del Drive while west of the intersection it is known as Executive
Drive. It will be referred to as Del Drive herein.
All such references are to the trial
This history was stipulated to by defendant on
December 16, 2002 (Exhibit 7). At trial, defense counsel (the same one who
signed the stipulation) offered a different meaning to the stipulation.
According to him, the signal number in the stipulation actually referred to the
entire intersection and not the individual light in question in this accident.
Claimant's counsel objected. It was his understanding, memorialized in a letter
of October 22, 2002 (Exhibit 8), that the only light involved in discovery was
the individual light in question. Based upon the stipulation, claimant
terminated his discovery because the question of prior repair history had been
In further support of his position, defense counsel explained that he simply
forwarded claimant's request for a stipulation to the Department of
Transportation (hereinafter "DOT") and eventually was told by DOT that he could
sign it. Defense counsel was not aware that DOT and claimant attributed
different meanings to claimant's request. In effect, at trial, he sought to
conform the stipulation to what he belatedly found out DOT was now saying it
The Court finds defendant's argument to be in bad faith. What claimant's
counsel sought in his October 22, 2002 letter is unambiguous. Claimant
expressly stated that further discovery could be halted if the stipulation was
signed. It was incumbent upon defense counsel to understand the meaning of a
stipulation before binding the State. The Court can view this change of
interpretation in one of two ways. First, defense counsel did not know DOT's
understanding of the stipulation at the time it was signed. In this case,
defendant signed the stipulation with the same understanding as claimant. The
fact that defense counsel later learns of a different interpretation from DOT is
defendant's problem created by a lack of communication between client and
The other view is that defense counsel knew DOT's interpretation of the
stipulation at the time that he signed it. Rather than correct claimant's
viewpoint, defendant signed the stipulation and then lay in wait for seventeen
months to ambush his adversary at trial with DOT's version of the stipulation.
The Court believes the former scenario to be what occurred, but the Court
cannot allow defendant to change the terms of the stipulation. To do so would
be highly prejudicial to claimant who discontinued discovery based upon the
executed stipulation. If the Court were to negate the stipulation, then a
continuance would have to be granted to claimant to continue discovery. The
Court finds this to be an unacceptable resolution.
The burden was on defendant to know the meaning of the stipulation. Defense
counsel cannot sign a stipulation with a common understanding and then try to
change it at trial almost a year and a half later when DOT, at trial, says it
was a misunderstanding.
The malfunction was not constant but had
occurred on a number of occasions in the months preceding the accident.