New York State Court of Claims

New York State Court of Claims

ADAMO v. THE STATE OF NEW YORK, #2005-029-534, Claim No. 100496


Personal injury from motorcycle accident on PIP; Court finds that a road hazard existed for such a period of time that the State either knew or should have known of its existence but failed to properly address it. Court also finds that claimant's failure to observe lane separations contributed to his accident. State-70% liable, claimant-30% liable.

Case Information

THOMAS M. ADAMO The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Louis J. Galgano, III, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dian Kerr McCullough, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 1, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

This claim for personal injury arises from a motorcycle accident on the Palisades Interstate Parkway (hereinafter PIP) approximately 1/10 of a mile south of Exit 17 in Orange County, New York on April 2, 1999. The trial was bifurcated and this decision deals only with the issue of liability.

Claimant, Thomas Adamo, testified that on April 2, 1999 he had been licensed by the State of New Jersey to operate motorcycles for approximately ten years. He was operating a 1999 Kawasaki Ninja ZX7 motorcycle (hereinafter motorcycle, cycle or bike) which he owned for approximately three weeks.

Claimant stated that on the afternoon of April 2, 1999, he and four other motorcyclists were riding with no specific destination in mind. As claimant was traveling northbound on the PIP approaching Exit 17, he was in the right lane riding at approximately 50 miles per hour. He observed a merging traffic sign and a vehicle entering the PIP so he activated his left turn signal to move into the center lane. As he began to move left, he felt the motorcycle catch in a separation causing it to wobble and shake. He lost control and went into a slide. From the time he lost control of the motorcycle until he came to rest near the center median of the roadway, approximately three or four seconds, he slid approximately 100 feet.

Mr. Adamo returned to the accident scene approximately one month after the accident and noted that the roadway had been patched. He took several photographs of the roadway where he asserts the accident occurred (Exhibits 6, 10, 13, 15, 16, 18 and 21). He recognized the location because of the smeared white lane line (see Exhibits 6, 10, 13, 16 and 18).

Mr. Adamo reviewed the State's photolog (Exhibit 33) and identified two photographs (Exhibits 33 [2] and 33 [3]) as the area of the accident. On the two photographs he placed a red circle around the separation in the roadway where his tire caught and on Exhibits 6, 10, 13, 16 and 18 he indicated the area with a red arrow.

Three of claimant's companions from the date of the accident testified at trial.

Anthony Rosciano stated he was traveling approximately 30 to 40 feet behind claimant and witnessed the accident. Mr. Rosciano testified that claimant activated his left turn signal to change lanes. He stated that as claimant was changing lanes his motorcycle hit a separation in the road and began to wobble causing claimant to lose control of his bike. The witness described the separation as 6 to 8 inches wide by 3 inches deep.

Ted Passalacqua and Anthony Scelba also testified on claimant's behalf. Both were traveling on motorcycles in front of claimant on the date of the accident. Mr. Passalacqua did not witness the accident but returned to the accident scene with claimant several weeks after and was present when claimant took photographs of the scene. He confirmed claimant's testimony that the roadway looked freshly patched.

Mr. Scelba testified that he was on his motorcycle ahead of claimant at the time of the accident. He was in the left lane of the PIP and saw the accident in his side mirror. He saw

claimant have difficulty controlling his bike as he was changing lanes and then saw the bike go into a slide. He pulled onto the shoulder and ran back to claimant. The witness observed a separation in the roadway where claimant fell that was 6 to 8 inches wide by 3 inches deep by 4 to 6 feet long.
Claimant called John Lacz as an expert. Following a recitation of his professional background, the Court accepted Mr. Lacz as an expert in the field of engineering.

Mr. Lacz testified that the PIP roadway surface is concrete and showed extensive wear. He explained that construction joints separate the concrete slabs between lanes. Such joints are subject to thermal expansion and contraction. If not properly maintained, cracking and separation will occur. Mr. Lacz specifically referred to claimant's photographs and noted that repairs had been made since the date of the accident (Exhibits 6, 10, 13, 15, 16, 18 and 21). According to the witness, these photographs show the extent of damage that can occur to a roadway when the concrete pavement is not adequately maintained. Mr. Lacz opined that such a separation is created over a period of time becoming progressively worse to a point where the roadway is dangerous.

The witness reviewed two photographs (Exhibits 33 [2] and [3]) which were taken in 1997. Mr. Lacz stated that the photographs show the beginning of the deterioration and demonstrate the separation starting to occur. He concluded that the PIP was not properly maintained and in his professional opinion, such negligence was the proximate cause of claimant's accident.

Claimant rested at the conclusion of Mr. Lacz's testimony. The State then moved to dismiss for failure to prove a prima facie claim of negligence. The Court reserved decision on the motion and it is now denied.

The State called Christopher Munz who testified that he has been employed by the State Police since May 1998. Currently an investigator, he was a uniformed trooper assigned to the PIP on April 2, 1999 and responded to claimant's accident.

Investigator Munz described the area of the accident scene to be a three-lane roadway paved with concrete slabs with a ¼ to ½ inch dash line running between the lanes for the length of the roadway. As he approached the accident scene in his vehicle he observed the roadway, the operator of a motorcycle against the left side barrier and a motorcycle further north. Investigator Munz testified that he blocked the middle and left lanes of traffic fifty to sixty feet south of the area where he found claimant and his cycle. He did a basic accident reconstruction by inspecting the roadway, interviewing the operator of the cycle and other persons at the scene[1]
and inspecting the cycle. He testified that claimant told him that he crashed while negotiating a lane change because he believed there was traffic entering the roadway from the Anthony Wayne Recreational Area.
Investigator Munz prepared two MV104A Accident Reports (Exhibit 2 and Exhibit G). The narrative information on the two reports is identical but Exhibit 2 includes a sketch of the scene. At the time of the accident he did not observe any road hazards[2]
as a contributing factor of the accident or he would have indicated so in Block 19 of the MV104A Forms as well as in the narrative. Instead, he indicated "40" in the block which indicates human error and in the Accident Description/Officer's Notes for Box 19 made the notation "rider lost control during lane change". He did not observe a separation in the roadway but did record on the accident reports (Exhibit 2 and Exhibit G) that Mr. Adamo indicated he caught the front tire of his motorcycle in a separation of the roadway concrete as he was attempting to change lanes.
Robert Falk also testified on behalf of the defendant. Mr. Falk is a licensed Professional Engineer who has been employed by the New York State Department of Transportation (hereinafter DOT) for 32 years and has been the Resident Engineer for Rockland County since November 1991. He oversees all maintenance activities on State roads in Rockland County and parts of Route 9W and the PIP extending slightly into Orange County. As part of Mr. Falk's duties, he receives and investigates complaints. When DOT receives a complaint of a road hazard, Mr. Falk or one of his foremen investigates and schedules any necessary repair work. Mr. Falk is not aware of any complaints regarding the area of the PIP at or near Mile Marker 1001[3]
northbound prior to April 2, 1999. In addition to calls or complaints, Mr. Falk and his foremen travel the roads looking for road hazards. Mr. Falk inspects the PIP at the location of the accident on a daily basis since he travels this portion of the roadway to and from work and does not believe it is necessary to exit his motor vehicle to see how significant a hazard is.
Mr. Falk explained the process DOT uses for repairing a road hazard. During warmer weather when the asphalt plants are open, the general method of repair is using a plant-mix hot asphalt material. In the colder months when the plants are closed, a cold patch[4]
is used. When a crew comes upon a road hazard, they shovel the asphalt material into it and rake it off so that it is level with the surrounding pavement. After such work is performed, the foreman fills out a Supervisor's Daily Report which details the work that was performed, the location, the date and which crew did the work.
The witness reviewed the Supervisor's Daily Reports (Exhibit D) and testified that in the months prior to the April 2, 1999 accident, maintenance crews did patching along the PIP on January 19-21, January 25-27, February 5, 10, 19, 22, 24 and March 2, 5 and 18. Mr. Falk testified that the supervisor's notes for March 18, 1999 indicate that crews used cold patch material to do patch work on the PIP from Mile Marker 1000 to 1036 in the northbound direction.

Mr. Falk was shown Exhibits 5 through 22 and could not tell when the patching in those photographs occurred. He said it could have been prior to, or subsequent to, April 2, 1999. Mr. Falk testified that expansion and contraction of concrete slabs does not result from age but from temperature variations.

The State objected to the admission into evidence of the photographs marked Exhibits 5 through 22. The Court reserved decision and the parties were directed to address the issue in their post-trial submissions.

In her post-trial submission, the State's counsel asserts that the photographs are inadmissible as they show post-accident conditions and therefore are not fair and accurate representations of the scene at the time of the accident. Evidence of repairs made after an accident is inadmissible if offered as an admission of negligence (
McGarvin v Weller Assocs., 273 AD2d 623; see Caprara v Chrysler Corp., 52 NY2d 114, 122). However, such evidence is admissible for other purposes such as to establish control or to impeach a witness (id.). Here, the Court admitted the photographs to show the location of the accident which several witnesses identified by reference to the smeared lane line. They also demonstrate the extent of the separation testified to by the four motorcyclists. The State's request to strike the photographs (Exhibits 5-22) is denied and the exhibits are admitted solely for the purpose of illustrating the location and the extent of the separation.
Also in her post-trial submission defense counsel asserted for the first time that the claim should be dismissed on the basis of Highway Law § 58. The statute provides "the state shall not be liable for damages suffered by any person from defects in state highways, except between the first day of May and the fifteenth day of November..." Defendant asserts that since claimant was injured on April 2, allegedly as a result of a road separation, the State is immune from liability and the claim should be dismissed.

Aetna Casualty and Surety Co. a/s/o Marchesano v State of New York (Claim No. 85216, Motion No. M-45852, filed August 4, 1992), Presiding Judge Donald J. Corbett, Jr. stated:
"Rather than being viewed as a limitation on liability, Highway Law § 58 may be perceived as defining the duty imposed on the State with respect to highway defects developing during the winter; i.e., a legislative declaration that the State has no duty to patrol for and repair potholes during the winter months. Utilizing this analysis, there is no conflict between Highway Law § 58 and Court of Claims Act § 8" (Slip Opinion, Page 3).

New York State Courts have held that the State is liable for accidents resulting from defects outside of the "patrol period" (i.e., the period between November 15 and May 1) if occasioned by the negligence of the State (
Miller v State of New York, 231 App Div 363; Karl v State of New York, 279 NY 555; see Dunn v State of New York, 52 NYS2d 128, affd 269 AD 1002; see also Ryan v State of New York, 180 Misc 370). Here, claimant alleges that the State had notice of the existence of the separation and failed to remedy it despite testimony from Mr. Falk that State employees patrol the roadway looking for road hazards. The Court finds that Highway Law § 58 is not a bar to the present action.
The State has a nondelegable duty to adequately design, construct and maintain its roadways in a reasonably safe condition (see
Gomez v New York State Thruway Auth., 73 NY2d 724; Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579; Zalewski v State of New York, 53 AD2d 781). Defendant, however, is not an insurer of the safety of its roadways and the mere happening of an accident on a State roadway does not render defendant liable (see Tomassi v Town of Union, 46 NY2d 91; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). Claimant has the burden of establishing that defendant was negligent and that such negligence was a proximate cause of the accident (see Bernstein v City of New York, 69 NY2d 1020, 1022; Marchetto v State of New York, 179 AD2d 947; Demesmin v Town of Islip, 147 AD2d 519). Liability will not attach unless defendant had actual or constructive notice of a dangerous condition and then failed to take reasonable measures to correct the condition (see Rinaldi v State of New York, 49 AD2d 361). Whether the State received such notice and thereafter unreasonably delayed remedying the condition is a factual issue (Slaughter v State of New York, 238 AD2d 770).
Upon listening to the testimony and observing the demeanor of claimant and Anthony Rosciano, the only witness to actually see the accident, the Court finds both to be credible and forthright regarding the circumstances of the accident. The testimony established that claimant encountered a separation in the roadway as he was changing lanes. Mr. Rosciano testified that the separation was 6 to 8 inches wide and approximately 3 inches deep. Mr. Lacz, claimant's expert, stated that based upon a review of the photographs in evidence he estimated the separation to be 40 to 50 feet long, 8 to 10 inches wide and more than 2 inches deep. The photographs (Exhibit 33 [2] and 33 [3]) taken by State employees in 1997, approximately
two years prior to claimant's accident, clearly show the separation had at least started at that time.
The Court finds that the hazard existed for such a period of time that defendant either knew or should have known of its existence but failed to properly address it (
Fasano v State of New York, 113 AD2d 885; Gaines v Long Is. State Park Comm. of State of N.Y., 60 AD2d 724). The Court finds that the defendant was negligent in its maintenance of the PIP and that such negligence was one of the proximate causes of claimant's accident (Fasano v State of New York, 113 AD2d 885, supra; Coss v State of New York, 11 Misc 2d 856, affd 8 AD2d 682).
Based upon the evidence and findings set forth above, it is clear that the State has substantial liability for the occurrence of this accident. However, claimant himself is not entirely without fault. Claimant testified that he is an experienced motorcyclist and, at the time of the accident, had at least four years of such experience. Presumably, claimant was aware that motorcycles are inherently less stable than automobiles and require greater caution and vigilance in performing maneuvers on roadways. Certainly, claimant would be aware that road defects which would not be hazardous to automobiles could, and do, have substantial impact upon motorcycles. The testimony at trial establishes that claimant lost control of his motorcycle while changing lanes. Having ridden motorcycles for a period of years, claimant knew, or should have known, that road separations, ruts and other conditions which are not otherwise hazardous, per se, can present hazards to a motorcycle. As a result, I find that claimant's failure to observe the lane separations and subsequent loss of control over his motorcycle also contributed to this accident.

As a result of the above, I find the defendant, State of New York, liable for 70% of this accident and claimant himself liable for the remaining 30%.

All motions made at trial upon which the Court reserved decision are now denied. The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability accordingly. The claim will be scheduled for trial on the issue of damages as soon as practicable.

December 1, 2005
White Plains, New York

Judge of the Court of Claims

[1] The accident reports he prepared do not note that there were witnesses or witness statements.
[2] He considers road hazards to be broken roadways, potholes, sinkholes, downed power lines or trees on the roadway.
[3] The area of the subject accident.
[4] An asphalt material designed to be used during the cold weather which is placed the same as the hot material.