New York State Court of Claims

New York State Court of Claims

DOMANOVA v. THE STATE OF NEW YORK, #2005-027-102-1, Claim No. 105491


Appellate Result:
REVERSED 2d Dept. 6/19/07

Case Information

.The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant’s attorney:
Ferro, Kuba, Bloom, Mangano, Gacovino & Lake, P.C. By: Brett I. Bloom, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, Attorney General By: Janet L. Polstein, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 17, 2005
New York

Official citation:

Appellate results:
REVERSED 2d Dept. 6/19/07
See also (multicaptioned case)


A bifurcated trial was held to determine liability only in this matter. Claimant, Zoya Domanova, alleged that she was struck by a motor vehicle owned by defendant, the State of New York, and operated by Joseph Neglia.

At the time of the incident Mr. Neglia was employed as a member of the New York State Racing and Wagering Board. The accident occurred on October 20, 2000, while claimant, a pedestrian, was pushing an eighteen-month-old infant named Michela in a stroller. Claimant, a Russian immigrant, was born on July 2, 1946 and emigrated to Brooklyn, New York five years prior to the subject accident. Claimant testified that on the date of the accident she was taking care of a granddaughter of a friend of hers. She could only identify her friend by her first name, Mosha. Additionally, she was unable to remember either Mosha’s home address or telephone number. Claimant stated that she left Mosha’s house around 4:00 P.M. with Michela in a stroller. Claimant could not describe what Michela was wearing on the day of the accident. Claimant walked along Avenue W in Brooklyn pushing the stroller with the intention of going to Ocean Parkway. Claimant first crossed over E. 3rd Street, then continued along Avenue W to E. 4th Street where she began to cross over E. 4th Street when the accident occurred. Avenue W is a two-way street with cars traveling in both directions while E. 4th Street is a one-way street. There were two suspended overhead traffic lights controlling traffic at the intersection of Avenue W and E. 4th Street. Claimant contends that she was struck while she was crossing E. 4th Street in the crosswalk. She testified that she pushed the stroller forward and to the right at a 45 degree angle in order to avoid it from being struck by the vehicle driven by Mr. Neglia. Claimant explained that she was struck by the right side of defendant’s vehicle. Initially, claimant stated that she was struck by a small part of the fender and then from the fender up to the rearview mirror of defendant’s vehicle. However, on redirect examination claimant unequivocally testified that she was not struck by any part of the front of defendant’s vehicle. Claimant contends that the whole left side of her body was struck by the right passenger side of defendant’s vehicle. She alleged that the stroller landed to her right, tilted backward on its handle with the infant still belted inside. Claimant described the accident as having happened within seconds but that she was able to push the stroller to her right before being struck. By the time she spotted defendant’s vehicle it was too late to avoid the accident. She described the weather conditions at the time of the accident as a sunny day without precipitation,

Mr. Neglia was approximately 76 years old on the date of the accident. He had been assigned a four-door, dark blue 2000 Pontiac to use for work by the New York State Racing and Wagering Board. The vehicle was equipped with power steering and power brakes. Mr. Neglia testified that there were no mechanical problems with the vehicle prior to the accident. Mr. Neglia had lived in his home on E. 4th Street for at least twenty years prior to the accident. His home was the third house on the right on E. 4th Street, just after the intersection of Avenue W and E. 4th Street. Mr. Neglia stated that there was no rain on the date of the incident and confirmed that there was a traffic light controlling traffic at the intersection of Avenue W and E. 4th Street. Mr. Neglia described the route he traveled from his office to his home on the date in question. Mr. Neglia testified that he was traveling on Ocean Parkway then made a right turn onto Avenue W. He then proceeded in the left lane of Avenue W two blocks to its intersection with E. 4th Street. At that point he waited at a red light. Once the light turned green Mr. Neglia proceeded to turn left onto E. 4th Street. Mr. Neglia estimated that it was about 4:30 P.M. at that time and that it was still light outside. Mr. Neglia did not recall seeing any pedestrians or vehicles prior to the incident which would have impeded his ability to make the left turn onto E. 4th Street. Mr. Neglia explained that after he had made his turn and traveled approximately twenty to thirty feet he then felt or heard a “bang” and then heard a woman screaming. Mr. Neglia stated that he felt the impact beyond the crosswalk. Mr. Neglia testified that he did not see claimant or the stroller prior to the accident. After he stopped his vehicle he ran out of the car and saw the infant lying on the ground outside of the stroller. He then saw claimant running toward the baby. Both claimant and the stroller were to the right side of his vehicle and not in front of it. There were parked cars along the right side of E. 4th Street at the time of the incident. Mr. Neglia asserted that there were scratches and a small dent on the right side of his vehicle as a result of the accident.

It is a difficult task but the Court must endeavor to assess the credibility of each witness that offers testimony before it as well as the weight given to the evidence presented. The Trial Court here, had, as a jury would, the opportunity to view the witnesses and consider their statements upon direct and cross-examination to determine whether each witness was credible (Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]).

This Court, in its capacity as trier of facts, must assess the credibility of the witnesses and resolve the factual issues (Le Grand v State of New York, 195 AD2d 784 [3d Dept 1993], lv denied, 82 NY2d 663 [1993]; Elonza Simon v State of New York, 271 AD2d 381 [1st Dept 2000]).

The Court found much of claimant’s testimony to be lacking in credibility. It bears repeating that although entrusted with the care of her friend’s granddaughter, claimant could not remember her friend’s last name, address or phone number. Additionally, claimant’s description of the facts surrounding the accident was implausible. She described the accident as having occurred in a split second but yet she had enough time to send the stroller she was pushing out of the way of the vehicle. She demonstrated how she pushed the stroller to her right at a “45-degree angle.” This action, as depicted, would have actually thrown the stroller into the path of the oncoming vehicle. Claimant’s further testimony explaining that she was not struck by the front of defendant’s vehicle but only the passenger side of the vehicle suggests that it is more likely that claimant initiated any alleged contact with defendant’s vehicle.

In contrast, the Court found the testimony of Mr. Neglia to be very credible. Mr. Neglia made a left turn from a stopped position to proceed to his home only a few houses away. Mr. Neglia’s view of the intersection, sidewalk and crosswalk was unobstructed. He stated that he did not see claimant or the stroller on the sidewalk or in the crosswalk prior to the accident. He testified that he was traveling at a speed of approximately 15 to 20 mph and that the incident occurred outside of the crosswalk path.

Based on the credible evidence presented at trial, the Court finds that claimant was not within the crosswalk at the time of the accident, that claimant caused the accident by failing to yield the right of way to defendant’s vehicle and that claimant initiated any contact with defendant’s vehicle (see Vehicle and Traffic Law § 1152; Velez v Cullinan, 251 AD2d 496 [2d Dept 1998]). Mr. Neglia operated defendant’s vehicle in a reasonable and prudent manner (see Vehicle and Traffic Law § 1146; Sheppeard v Murci, 306 AD2d 268 [2d Dept 2003]). Claimant has failed to prove by a preponderance of the evidence that defendant was responsible for the happening of the incident and her claim is dismissed. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.

Let judgment be entered accordingly.

October 17, 2005
New York, New York

Judge of the Court of Claims