New York State Court of Claims

New York State Court of Claims

PERRY v. THE STATE OF NEW YORK, #2005-019-015, Claim No. 103648


After trial, court found that claimant had failed to meet her burden by a preponderance of the evidence on the issue of notice or proximate causation of her injuries resulting from automobile accident. Claim dismissed.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
KONSTANTY LAW OFFICEBY: James E. Konstanty, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 19, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Nichole Perry, brings this claim for personal injuries sustained in an automobile accident on October 13, 2000, alleging that the State of New York Department of Transportation (hereinafter "DOT"), was negligent in the design, construction, maintenance, and signage, of the intersection of State Routes 28 and 357 in the Town of Franklin, Delaware County, New York.

The bifurcated trial of this claim was held in the Binghamton District on September 13 and 14, 2004 and continued on March 29, 2005. Consequently, this Decision addresses the issue of liability only.

On October 13, 2000, at approximately 9:44 a.m., claimant was driving a 1996 Ford sedan on Route 28 in a westerly direction as she approached a three-Y intersection with Route 357 in the Town of Franklin.[1] Route 28 is a two-lane rural roadway constructed in the 1920s with two nine-foot travel lanes and a four-foot shoulder on each side. The intersection between Routes 28 and 357 is described as a three-Y intersection because the Route 28/357 intersection is the eastern most "Y" of three-Y intersections in this area.

The "Y" intersection between Routes 28 and 357 is comprised of Route 28 as the main thoroughfare, with Route 28 (traveling, as claimant, in a westerly direction on Route 28) curving sharply to the right. A driver traveling on Route 28 may take a left turn onto Route 357 by proceeding on the left leg of the "Y". It was established at trial that as claimant traveled Route 28 westbound approaching the Route 28/357 intersection, she encountered at least five directional signs including a black and white sign warning of the junction with Route 357 ahead; a yellow sign warning motorists to reduce their speed to 25 m.p.h. due to the sharp right turn ahead; a black and white sign indicating that Route 28 westbound curved to the right ahead; a green sign indicating the paths for Unadilla or Oneonta; and finally two black and white signs posted together indicating Route 28 west proceeded to the right, while Route 357 west proceeded straight (or to the left).

(St.'s Exs. A-F). Additionally, the center pavement markings on Route 28 were solid double yellow lines that changed to double yellow dashes at the point where a motorist may turn on the left leg of the "Y" onto Route 357. (St.'s Ex. G).

On the date of this accident, claimant was on her way to her cousin's home in preparation for attending her grandmother's funeral later that day. As claimant traveled on Route 28 she planned to turn left onto Route 357 at the "Y" intersection between Routes 28 and 357. Claimant testified there had been a vehicle traveling in front of her on Route 28 for some distance and that as the vehicles approached the "Y" intersection she slowed her vehicle down from 50 m.p.h. since the lead vehicle appeared uncertain as to which direction to go as it approached the intersection. The vehicle in front of claimant finally continued to the right along Route 28, and claimant attempted to make the left-hand turn onto Route 357. Claimant testified that she did not see a 1990 Mercury four-door sedan, operated by one Jennifer Putnam, approaching from the opposite direction on Route 28. Claimant's vehicle was hit squarely on the front passenger's side by the Putnam vehicle and both vehicles came to rest on or around the southbound shoulder of the "Y" intersection.

Claimant testified that although she was familiar with this roadway and knew of the intersection between Routes 28 and 357, she had never previously attempted to make the left turn at the "Y" intersection from Route 28 onto Route 357. Claimant further testified that her limited sight distance just prior to making her left turn onto Route 357 was due to the vehicle in front of her slowing down and blocking her view, as well as from the sun shining brightly in her eyes off that vehicle's rear window.

Claimant admitted on cross-examination that she did see and understand the posted signs along Route 28 as she approached the intersection with Route 357. Claimant further stated that she could "sort of"[2]
look past the vehicle in front of her, even though that vehicle was slowing. Claimant testified that she first saw the oncoming Putnam vehicle as she was in the middle of making her turn across the eastbound or southbound lane of Route 28.

Claimant called Alvin M. Bryski of International Technomics Corporation as an expert witness. Mr. Bryski holds a bachelors of science and a master's degree in civil engineering, but is not a licensed engineer. Mr. Bryski opined that the Route 28/357 intersection was unsafe and that a "T" intersection should have been introduced in this area to replace the three-Y intersection including the placement of a stop sign. (Cl.'s Ex. 35). The witness further testified that he calculated a limited sight distance of 300 feet where claimant attempted to make the left turn by following the path of the roadway. Mr. Bryski noted that a sight distance of at least 400 feet is warranted when opposing traffic is traveling no more than 30 m.p.h. and that since the speed limit here was 55 m.p.h., even a greater sight distance was required. However, on cross-examination, Mr. Bryski conceded that this "Y" intersection did not have an unusual accident history and that the traffic volumes did not warrant stopping traffic on a major roadway such as Route 28.

On its case, the State called Dwayne Mayo, the resident engineer in the DOT region covering the intersection between Routes 28 and 357. Mr. Mayo opined that the posted signage was in conformity with the Manual of Uniform Traffic Control Devices. (St.'s Exs. A - F). Mr. Mayo testified that he visited this area at least one time per month or more and oversaw all maintenance and construction projects in this area. Mr. Mayo also testified there have been five resurfacing projects over this area of the highway in the past 60 years, but no major reconstruction or capital projects. Moreover, Mr. Mayo stated there were no complaints received regarding this intersection nor an inordinately high number of accidents and, in any event, no accidents similar to this one.

Mr. Mayo testified that traffic signals and other control devices are typically installed only if there is a high accident rate in an area which was not the case here.

The State also called Daniel Paddick as a witness. Mr. Paddick, now retired, was the DOT regional traffic safety engineer in region 9 which covered the subject area at the time of this accident. Mr. Paddick testified that there were six studies of this area between 1984 and 1997 during which time various proposals and considerations were studied, but no major reconstruction or changes were ever authorized. Mr. Paddick acknowledged that DOT understood that there was an inherent risk at any three-Y intersection, but stated that the decision not to make any major changes was based upon a detailed cost-benefit analysis.

Mr. Paddick also testified regarding the sight distance at this "Y" intersection. Mr. Paddick stated that there was a 450-foot sight distance for a vehicle making the left-hand turn onto Route 357 from Route 28. Mr. Paddick's calculation of the sight distance included a view across an adjoining parcel of property. It was Mr. Paddick's opinion that this distance conformed with the DOT Highway Design Manual and the AASHTO 1994 Policy on Geometric Design of Highways and Streets. Under these circumstances, Mr. Paddick opined that there was sufficient sight distance available to this claimant to make her turn safely had she been paying attention to oncoming traffic.

It is well-settled that the State has a non-delegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition. (
Friedman v State of New York, 67 NY2d 271, 283). The State, however, is not an insurer of the safety of its roadways and the mere happening of an accident on the roadway does not render the State liable. (Tomassi v Town of Union, 46 NY2d 91, 98). Claimant has the burden of proving the State had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition. (Rinaldi v State of New York, 49 AD2d 361, 363; Brooks v New York State Thruway Auth., 73 AD2d 767, 768, affd 51 NY2d 892). Finally, the driver of a vehicle is required to use ordinary care and a highway is deemed to be safe so long as a motorist exercising that standard can traverse the same safely. (Boulos v State of New York, 82 AD2d 930, affd 56 NY2d 714).

Claimant asserts that this three-Y intersection created a dangerous condition due to the State's failure to maintain said roadway, inadequate signage, and insufficient sight distance. With respect to the signage along Route 28, the court finds that the posted signs were adequate to give claimant - or any driver - adequate warning of the road configuration ahead. In fact, claimant conceded that she was able to follow the road signs as posted and understood the layout of the intersection ahead based upon said signage. With respect to the sight-distance issue, the court accepts the State's testimony of Mr. Paddick that the distance conformed with the DOT Highway Design Manual and the AASHTO 1994 Policy on Geometric Design of Highways and Streets. Consequently, the court finds claimant's argument that this three-Y intersection constituted a dangerous condition to be without merit and, as such, the court need not address whether the State had actual or constructive notice thereof.

That having been said, however, even if the court had found the existence of a dangerous condition of which the State had actual or constructive notice, the burden remained with claimant to prove by a preponderance of the evidence that said condition was a substantial factor in causing the accident and subsequent injuries. (
Bernstein v City of New York, 69 NY2d 1020). Claimant failed in this regard as well. With respect to the signage issue, claimant stated candidly that she knew she needed to turn onto Route 357 by crossing the oncoming lane of traffic on Route 28 and was aware of the fact that there would be or could be vehicles oncoming in the opposite direction. In other words, there is no proof - only conjecture - that some other sign would have altered claimant's behavior in any manner. With respect to the allegations regarding inadequate sight distance, again claimant's own testimony is dispositive. Claimant did not testify that she had an inability to see down the roadway for oncoming traffic on Route 28 or that an additional 100 feet of sight distance would have changed the course of events on this day. Rather, claimant testified that her sight distance was limited due to her close proximity to the vehicle in front of her, as well as glare from the sun in her eyes. Consequently, from the evidence presented, the court finds that the sole proximate cause of this accident was claimant's failure to yield the right-of-way to oncoming traffic (the Putnam vehicle) and not seeing that which was readily capable of being seen. (Stanford v State of New York, 167 AD2d 381, lv denied 78 NY2d 856).

Finally, the court is also satisfied that even had the court determined the State was negligent, the State would be entitled to qualified immunity. It is well-settled that in the field of traffic design engineering the State is accorded a qualified immunity from liability arising out of highway planning decisions. (
Friedman, 67 NY2d at 283; Weiss v Fote, 7 NY2d 579, 585-586). However, if "[t]he State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger [citations omitted]." (Friedman, 67 NY2d at 284). Stated another way, the State can only be held liable when there is proof that the plan either was evolved without adequate study or lacked reasonable basis or the plan was not effectuated within a reasonable period of time. (Weiss, 7 NY2d at 585-586; Friedman, 67 NY2d at 286). The pivotal inquiry is whether the State exercised reasonable diligence in maintaining the roadway under the prevailing circumstances. (Freund v State of New York, 137 AD2d 908, 909, lv denied 72 NY2d 802). However, the State is under no affirmative duty to undertake extensive highway repair to bring roads designed years ago up to current design specifications. (Vizzini v State of New York, 278 AD2d 562, 563).

Here, the evidence established that DOT conducted various studies from 1984 to 1997 of this area, but that major reconstruction and/or reconfigurations of this intersection were rejected due to a cost-benefit analysis. While the court agrees that by today's standards this highway may have been constructed differently, such is not the applicable standard. The decision after adequate study not to allocate resources to a reconstruction of this intersection is the very type of decision-making process protected under
Weiss v Fote and its progeny. The court finds that based upon the facts presented the State acted reasonably in its design, construction, and maintenance of the intersection of Routes 28 and 357 and, as such, the State would have been entitled to qualified immunity had the court needed to reach that issue.

Based upon the foregoing, Claim No. 103648 should be and hereby is DISMISSED.

Any and all motions on which the court may have previously reserved or which were not previously determined, are hereby denied.


September 19, 2005
Binghamton, New York

Judge of the Court of Claims

[1]Although Route 28 is designated as an east/west roadway, its actual direction at the "Y" intersection with Route 357 is north/south.
[2]Unless otherwise indicated, all quotations are from the court's trial notes.