New York State Court of Claims

New York State Court of Claims

McGRATH v. THE STATE OF NEW YORK, #2005-030-022, Claim No. 106600


Synopsis



Case Information

UID:
2005-030-022
Claimant(s):
THOMAS McGRATH, JR., and KATHY McGRATH
Claimant short name:
McGRATH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106600
Motion number(s):

Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
FRANK J. LAINE, P.C.
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DENIS J. McELLIGOTT, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
August 12, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Thomas McGrath, the Claimant[1]
herein, alleges in Claim Number 106600 that the Defendant's negligent design, construction and maintenance of Route 347 at or near its intersection with Brooksite Drive in Smithtown, County of Suffolk, State of New York, are the proximate cause of his accident and resulting injuries. Trial of the matter was held on March 28, 29, 30 and 31, 2005. This decision relates solely to the issue of liability.

FACTS
Claimant, an off-duty Suffolk County police officer, testified that on September 30, 2000 he was riding his motorcycle home from a gathering - or cruise - of fellow motorcycle enthusiasts in Port Jefferson when he entered westbound Route 347. He had left Port Jefferson at approximately 11:30 p.m. after spending a few hours at the municipal lot by the ferry landing, first riding to the gathering point with a friend, and then walking around chatting about the various motorcycles. He recalled drinking one cup of coffee.

Route 347 is a generally east/west route, containing two lanes of traffic in each direction throughout the relevant portion of the highway, except for turning lanes at intersections. At its intersection with Brooksite Drive, Route 347 has additional left-turn lanes on both the eastbound and westbound sides. Brooksite Drive has one lane each for northbound and southbound traffic, but is widened to include left-turn lanes at the intersection.

When Mr. McGrath entered Route 347, he got into the right lane at first, and then moved into the left lane. He recalled that the traffic conditions were "light"[2]
that evening and that he had gone through several traffic intersections, stopping at the respective traffic lights controlling them until he reached the intersection with Brooksite Drive at approximately 12:15 a.m. He first saw the green traffic light controlling that intersection from about "thirty, forty feet or more" and was traveling between "[t]hirty five [and] forty five miles an hour." [T(1)-24]. There were no vehicles traveling in front of him, and his front headlight was working, he felt sure, first because it had been working on the trip out, and also because he could see the signs and the road ahead.
At the intersection, a black Volkswagen traveling eastbound on Route 347 suddenly made a left-turn in front of Claimant toward Brooksite Drive without signaling. "Less than a second" elapsed between the time he first observed the car turning in front of him, and the impact between his motorcycle and the Volkswagen. [T(1)-26]. He said that he " . . . attempted to apply the brakes and swerve to the right, but . . . [he] didn't get a chance." [
id.]. The collision occurred in the left lane of the westbound direction of Route 347, the lane in which Claimant had been traveling. The front end of his motorcycle, his face and his body came in contact with the passenger-side front door of the Volkswagen, in a collision Mr. McGrath described as a heavy impact. From what Mr. McGrath could see, the other driver " . . . was swinging a left-turn in front of me and it appeared that he was going fast." [T(1)-27]. The next thing Mr. McGrath recalled was waking up in a hospital. Sometime after the accident, he learned that the driver's name was Daniel Antoniou and the owner of the car was Louis Antoniou.
Because he was familiar with the lighting sequence at this intersection, and because he had a view of the dark roadway via his peripheral vision, he could say that the eastbound traffic had a green signal, and he could also say that when the light is green on the westbound side, there is never a green left-turn signal lit for eastbound traffic to make a turn onto Brooksite Drive.

Mr. McGrath identified a nighttime photograph showing an eastbound view of Route 347 at its intersection with Brooksite Drive as depicting how the intersection was configured on September 30, 2000. [Exhibit 1]. The photograph shows a turn lane to the left separated from two through traffic lanes by diagonal white stripes and a solid white line.
[id.]. From the angle of the photographs immediately above the diagonal stripes there is a traffic signal, as there is immediately above the center of the two through traffic lanes. [id.]. Both signals show a green globe, and contain three stacking vertical globes. [id.]. With respect to the traffic signal above the diagonal stripes, there is no additional indication - such as a sign - that this light will have a left-turn signal.
On cross-examination, Claimant confirmed that he had purchased the 1964 Harley Davidson motorcycle in June 2000, and had installed disc brakes on the motorcycle, replaced brake lights and handlebars among other things, generally making it more attractive and safer. He had not replaced the front headlight. There was no artificial lighting on the road. In prior sworn testimony, Claimant had indicated that the approaching Volkswagen appeared to be traveling "fast", at more than 50 miles per hour, and adopted that estimate at trial. [T(1)-49-50]. Claimant vaguely remembered being interviewed by a detective at home after the accident, but could not recall what he told him. According to the report of the interview, Claimant was unable to tell the investigator anything about the accident at the time. [Exhibit RR]. Mr. McGrath explained that after the accident he had what he would call "short-term amnesia." [T(1)-51].

Franklin Haws, the friend with whom he went to the motorcycle cruise, also testified, confirming that he saw that the headlight on Mr. McGrath's motorcycle was illuminated both on the trip up to Port Jefferson, and when he saw Claimant start up his bike to go home. Since he did not leave when Claimant did, Mr. Haws could only attest to the condition of the motorcycle for the "second or two" before Mr. McGrath departed for home. [T(1)-59].

Sergeant Matthew O'Malley, the Suffolk County Police Department Officer responding to the accident scene testified. When he arrived at the scene, he saw Claimant lying in the middle of Route 347 on the westbound side, with another man kneeling next to him. A motorcycle was on the ground a little further ahead, and a Volkswagen was pulled over on Brooksite Drive just north of Route 347, facing north, with its hazard lights on. After making sure that Claimant was breathing, Sergeant O'Malley closed the road and called for assistance. He determined, after speaking with the driver of the car among other things, that the accident occurred because the driver "failed to yield the right-of-way to the motorcycle and made a left-turn onto northbound Brooksite Drive across westbound Route 347." [T(1)-65-66]. This conclusion is memorialized in the accident report he prepared at the time. [Exhibit 26]. Sergeant O'Malley explained: "The driver of the other vehicle had said he had the green light. He had taken a look, didn't see a vehicle coming, made a left-turn when his vehicle was hit. The way the light was set up at the time if eastbound had a green light, so did westbound. There was no arrow or anything."

[T(1)-66]. According to the witness, no other factors - such as alcohol use, or a defective motorcycle headlight - contributed to the accident. He said that he spent five hours at the accident site.
On cross-examination, he said that he learned within five minutes of his arrival at the scene that Mr. McGrath was a Suffolk County Police Officer. He said that one of the individuals helping him at the scene had taken Claimant's wallet out, and found his police identification card. Other individuals at the scene were told that Claimant was a police officer, including Detective Weisse, who conducted a more extensive investigation, including interviews of the driver and his passengers. Sergeant O'Malley could not say "for sure" whether the motorcycle itself was inspected, and whether headlights on vehicles involved in accidents are routinely checked. [T(1)-82]. He said that the motorcycle was "pretty totaled out," and could not remember whether the headlight was still attached.

Thomas Oelerich, who had been employed by the New York State Department of Transportation (hereafter DOT) as the Regional Traffic Engineer for Region 10 - encompassing the intersection of Route 347 and Brooksite Drive during and prior to September, 2000 - testified at length. He had been the Regional Traffic Engineer since 1997.

On September 30, 2000 the traffic light governing the eastbound traffic of Route 347 at the Brooksite Drive intersection contained a "protected permissive" - as opposed to a "fully protected" - left-turn arrow. [T(1)-101]. Mr. Oelerich explained that there are essentially three levels of control for left-turns. First is a green light allowing drivers to assess whether to make a left-turn in gaps in traffic. Second is a "protective permissive [signal] where it's fully protected for a portion of that signal and then the left-turn arrow drops off and a green ball appears which then allows the people still remaining to make that left-turn . . . but they're no longer fully protected. They now have to make a judgment whether there's a gap in traffic and whether they can successfully make that left-turn." [T(1)-102]. Finally, "[t]he highest level of control is a fully protected left-turn where you can only make that left-turn when you have that green arrow." [
id.]. When the fully protected green arrow is on, all oncoming traffic is stopped at a red light.
Mr. Oelerich recalled that sometime prior to September 30, 2000 the DOT had conducted a study relative to the intersection, and had concluded that the eastbound turning lane from Route 347 onto Brooksite Drive should be governed by a fully protected left-turn arrow. Although he knew there had been complaints about the intersection, he could not recall how many written complaints from elected officials and/or the citizenry had been received prior to September 30, 2000. He did recall receiving a letter from the Town of Smithtown regarding Brooksite Drive - a town road - but could not recall the contents to be able to characterize any complaint.

Mr. Oelerich explained generally that every letter received concerning traffic and safety is acknowledged by the department as a policy, and the writer is told that the DOT will look into the concerns expressed and get back to him/her as soon as possible. The letter is assigned a case number, and an investigator is assigned to take a look at it. He said that letters containing safety concerns are given the highest priority. Other factors, too, are weighed in determining priority of complaints, including whether the originator of the letter is an elected official.

At trial, Mr. Oelerich reviewed a series of complaints he received, either directly or by referral
from the citizenry, from officials from the Town of Smithtown, and from a State Senator concerning the danger of the eastbound left-turn at the intersection [Exhibits 3, 5, 7, 8 & 9] and also reviewed responses made thereto between April 1998 and April 1999. [Exhibits 4, 6, & 10]. Indeed, in a letter dated April 28, 1998 to the Director of Traffic Safety for the Town of Smithtown, Mr. Oelerich addresses the director's concerns and writes "we have scheduled an investigation of this location and will notify you of our findings at the conclusion of our study." [Exhibit 4]. The letter reflects the assignment of a case number to the complaint. The same form letter was written on May 22, 1998 in response to a citizen's group complaint. [Exhibit 6].
The intersection was also the subject of scrutiny by the press, based upon a memorandum Mr. Oelerich wrote on January 19, 2000 essentially asking for public relations assistance in speaking to a journalist, since one of the responses he had given to the Town of Smithtown - indicating that a fully protected left-turn was the solution for the eastbound left-turn accidents - had been printed in a local newspaper. [Exhibit 11] .

Mr. Oelerich said that it was part of the DOT's job generally to prioritize investigations and studies. He could not recall all the cases in which his department was involved in order to be able to categorize the relative priority of the subject intersection vis-à-vis
other projects prior to September, 2000.
Although he could not remember when the investigation of the intersection began, he described what the process entailed. He said once the investigator is assigned, " . . . he then looks at what accident information we have, makes a request for the latest accident information and then he looks at the intersection, goes out in the field, takes a look at it and when accidents come in, he reviews the accidents, reviews what he's found in the field, reviews the operation of the signal and then makes a determination as to what improvements he feels . . . [are] necessary." [T(1)-126-127].

One of the documents prepared is a collision diagram plotting the types and numbers of accidents occurring at the given location. Reviewing a series of collision diagrams of the intersection, Mr. Oelerich was able to say that between July 1992 and April 1998 there was a notable increase in left-turn accidents. [Exhibit 12].

In a memorandum dated February 17, 1999 Mr. Oelerich writes that the investigation is "completed" and that " . . . a fully protected arrow will be needed to address the left-turn accidents . . . [from eastbound Route 347 onto northbound Brooksite Drive]." [Exhibit 13; T(1)-140-141]. As cited in the memorandum, additional concerns involved traffic backing up during rush hour periods to the intersection of Route 111 and Route 347, with the suggestion that Route 347 be widened slightly for left-turn traffic to ease excess capacity west of Brooksite Drive. [
ibid.].
On April 1, 1999 Mr. Oelerich wrote a memorandum to the Regional Design Engineer, Joe Scariza, attaching plans for two alternative means of addressing the eastbound left-turn safety concerns. [Exhibit 14]. One proposal involved continuing the three-lane section on westbound Route 347 starting from Route 111 and ending it after Brooksite Drive. [
id.]. The other proposal involved beginning the three-lane section approximately 1,000 feet east of Brooksite Drive. [id.]. In the memorandum, Mr. Oelerich indicates that the continuous three-lane version is preferred as the safer alternative. [id.].
At trial, Mr. Oelerich explained that the "plans" referred to were not "detailed design plans that you could send to a contractor and build something. This is more of a conceptual plan as to what we thought could be done. That's why it's going to design [,] cause design would be the ones to actually put the detailed plans together." [T(1)-152].

Mr. Oelerich testified that the determination that the eastbound left turn needed to be made fully protected was made in February 1999, and to a question as to whether between that date and through September 30, 2000 a study had ever been conducted to determine the feasibility of fully protecting left turns without adding a westbound through lane, the witness replied that it had been "considered", but was rejected because it was thought that "correcting that one safety problem created two more safety problems . . .", and that wasn't the prudent approach to solving long-term safety issues on Route 347. [T(1)-169]. He reiterated that the two additional safety concerns consisted of cars overflowing the left-turn storage lane into a high speed through lane in the eastbound direction, since the storage lane was too short, and in the westbound direction the problem of cars being backed up to the intersection of Route 111 and Route 347.

When asked, however, Mr. Oelerich said, that if a fully protected left turn had been added to the intersection "right away", left-turn accidents would "probably" have been reduced. [T(1)-172]. Mr. Oelerich agreed that right-angle accidents - the kinds of accidents involved in turns - "are the most serious accidents", versus rear-end collisions. [
id.].
In a memorandum dated March 22, 2000,
from Brian Hoffmann - the design engineer for the project - to Ed Beuel - Mr. Hoffmann's direct supervisor - Mr. Hoffmann notably suggests "simply chang[ing] the [eastbound] left turn to a fully protected movement and bit[ing] the capacity bullet . . ." [Exhibit 20; T(1)-173].
As to alternatives, Mr. Oelerich conceded that between February 1999 and September 30, 2000, prior to making the construction changes, prohibiting eastbound left turns during the peak morning rush was not considered as an interim solution; nor was consideration given to extending the eastbound left-turn storage lane or fully protecting the turn, but limiting the signal time to the times that the turn was fully protected under the existing system. Also not considered was the implementation of a fully protected left-turn arrow only at non-peak times.

Nicholas Bellizzi, Claimant's expert engineer, testified at length. He indicated that he had looked at the motor vehicle accident history for the location between 1998 and 2000, had read the deposition of Mr. Oelerich, an article in a local paper dated January 23, 2000 concerning the routes, had reviewed DOT contract plans for safety improvements at the intersection, and had reviewed the internal memoranda, [T(2)-21-24]. His understanding of how the accident occurred was essentially as described by Claimant: That both vehicles had green lights, and that Mr. Antoniou made a left turn while the signal was a green ball, not a green arrow. [T(2)-26].

Among the records Mr. Bellizzi reviewed was a report from Wiley Engineering to the DOT engineers dated January 18, 1999 concerning its study of the impact on traffic capacity resulting from the installation of a fully protected eastbound and westbound left-turn phase at the intersection of Route 347 and Brooksite Drive. [Exhibit 25]. The document stated " . . . implementation of restricted left-turn phases on Route 347 will have a negligible effect on intersection operations in the midday and PM periods, but will further degrade westbound flow in the AM period." [
id.]. Mr. Bellizzi opined that this memorandum as well as other documents suggested that there was a significant delay in the westbound direction during the morning rush hour, but that it had not reached "intolerable" levels in traffic engineering terms. He said: " . . . there's a term called a volume to capacity ratio and the existing volume to capacity ratio westbound was operating at 1.1 and the projected volume to capacity ratio was going to become 1.2. So . . . there was a significant amount of delay and that delay would increase . . . 1.2 usually indicates that you're operating at full tilt, at full capacity." [T(2)-33].
Another memorandum from Dunn Engineering Associates to DOT officials, dated April 30, 1999, addressed the effect of a fully protected eastbound left turn on the left-turn storage lane as it was then configured. [Exhibit 17]. Dunn Engineering Associates concluded that a longer storage lane was necessary. [
id.]. These memoranda, together with an internal memorandum from Brian Hoffmann - design supervisor engineer - addressing the specific safety concern of eastbound left turns and characterizing such a change as a short term improvement, were meaningful to Mr. Bellizzi from an engineering standpoint as they evince the DOT's view that the improvement was intended as one for the short term.
He said that engineering improvements fall generally into three categories: short-term, intermediate, and long-term. "[B]y the definition, long-term are things that take a long time such as a corridor improvement where you may have land acquisition, right-of-way, extensive environmental review, a lot of community participation, how it affects their businesses and a lot of engineering design. Short-term is on the other end of the spectrum where things can be done quickly . . . something that can be implemented in a short period without much delay or conflict

. . ." [T(2)-36].
Mr. Bellizzi viewed Brian Hoffmann's memorandum of March 22, 2000 relative to "biting the capacity bullet" as demonstrating that the DOT recognized an urgency to implementing at a minimum a fully protected left turn on the eastbound side regardless of storage issues. [
See Exhibit 20; T(2)-37]. Mr. Bellizzi opined that the continued existence of the permissive left turn on the eastbound side of Route 347 rendered the intersection unreasonably dangerous on September 30, 2000, especially in light of the State's identification of the safety issue as early as February 1999, and the failure to implement even an interim change.
From his review, the delay in implementation stemmed from the DOT wanting to add a third westbound lane, thus getting "caught up in an environmental review and . . . assessment component." [T(2)-40]. That westbound lane, he said, was not proposed to rectify any safety hazard - it was strictly capacity related. Mr. Bellizzi said that implementing a fully protected eastbound left turn at the intersection, without adding any westbound lane, would involve a signal timing change at the signal in the controller to go to a fully protected left, and would cost "less than ten thousand dollars and [take] less than a month." [T(2)-42].

He found that other than Mr. Hoffmann's memorandum, there was no record of the DOT considering or studying this simple plan from February 19, 1999 to September 30, 2000. Because of the failure to consider this interim solution, he opined within a reasonable degree of engineering certainty that this rendered DOT's study inadequate.

He proposed that within that period the DOT could have implemented the fully protected left-turn signal at all time periods, or could have implemented it for more limited periods, such as excluding the two-hour morning commuter rush, constituting an approximately 10-hour period weekly. Both versions would take approximately the same amount of time to implement and would cost the same amount of money.

Mr. Bellizzi discussed the relevance and interplay between the New York State DOT Manual for Uniform Traffic Control Devices and the federal manual upon which the State manual is based. He noted that the purpose of the federal manual is to assure that throughout the United States all the same traffic control devices are used and the same types of signal arrangements are in place so as not to confuse the driving public. The New York State manual alludes to the federal manual as a source for its requirements. [
See 17 NYCRR 200.1 (c)]. Mr. Bellizzi said that in 1999 the New York State DOT Manual for Uniform Traffic Control Devices did not prohibit making fully protected left-turn signals for a portion of the day, and permissive signals during other times of the day.
The federal manual covering traffic control devices, he said, is updated periodically. When the federal manual is updated, the New York State Manual is updated and "greatly incorporates everything in the federal manual." [T(2)-47].

In 1999, the federal manual expressly provided for the use of variable phasing of left-turn signals for different periods of the day. The federal manual in effect during the time period after Mr. Oelerich's February 1999 memorandum until the accident was the 1988 edition, which was not revised until December 2000. There was no reason to think that the use of such variable phasing would lead to confusion, he opined, given that the federal manual suggested it and included such schematics in the traffic signal diagrams.

Notably, the New York State manual had not been amended since 1983 at the time of Claimant's accident, and also states in its "Guiding principles" that " . . . [w]hile this manual provides standards for design and application of traffic control devices, it is not intended to preclude the use of sound traffic engineering judgment." [T(2)-113; 17 NYCRR 200.2(g)].

In addition to concluding that there was inadequate study since an easy interim solution was essentially not considered, and that delays in implementation of the plan to have a fully protected left-turn signal at the intersection were unreasonable, Mr. Bellizzi opined within a reasonable degree of engineering certainty that this failure of the DOT to implement its plan was a substantial factor in causing Claimant's accident. He said this was the very type of movement - a left-turn accident - that would have been prevented had the fully protected signal been in place to eliminate all "conflicts" of traffic. [T(2)-61].

Finally, Mr. Bellizzi thought the actual construction time for the more ambitious State plan, including constructing a third westbound through lane, expanding the left lane storage and changing the eastbound left-turn signal to a fully protected one, and without any delay caused by environmental permit concerns, would be approximately two months. When it was posed to Mr. Bellizzi that the DOT knew in April 1999 that it needed an environmental permit in order to complete the westbound lane, and a permit was not applied for until August, 2000, Mr. Bellizzi opined that it was unreasonable from an engineering standpoint to not immediately seek a permit. Also from his review of the records he did not find that any lack of funding was a rationale for delay.
On cross-examination Mr. Bellizzi conceded that it is often - but not always - good engineering practice to consider an entire corridor of traffic and the various signals along the route when considering safety and congestion concerns. He agreed that the use of an investigator to look at the intersection and the reliance on the Wiley report and the Dunn report and the extension of a left-turn storage lane would be reasonable were the fully protected left-turn signal installed full-time - that is, inclusive of the two-hour morning rush because of the congestion concerns of the heavy westbound flow of traffic. He agreed that in solving one problem, other problems can be created, and that professionals may disagree on how to resolve given issues, but said that "the solution is never to ignore the problem." [T(2)-82]. Failing to extend the eastbound left-turn lane, he admitted, would cause another potential conflict with a driver traveling eastbound at 55 miles per hour suddenly confronted with a stopped car in a through lane waiting to turn left because the collection lane is full.

Mr. Bellizzi also conceded that several different solutions were proposed within the DOT documents he reviewed, including those that might involve land acquisition issues. He reiterated, however, that the solution he suggested at trial, to temporarily implement a fully protected left turn except for the peak period hours in the morning is not contained in the documentation he reviewed. Indeed, although in Mr. Oelerich's deposition testimony Mr. Oelerich said it was considered and discarded, Mr. Bellizzi said there is no record of that discussion amongst the engineers; nor is there any evaluative "pro/con" type of interchange in the record he reviewed. [T(2)-10].

No other witnesses testified on Claimant's direct case.

Paul Buroker, one of Daniel Antoniou's passengers the night of September 30, 2000 was called briefly by the Defendant. He sat in the rear of the car behind the front passenger seat. He did not recall much about the accident, except that he remembered looking directly right out the window as they were making a left turn from Route 347 onto Brooksite Drive, not seeing "any cars or any headlights or anything and then we got hit." [T(2)-125]. He estimated that the car had been traveling at approximately ten to fifteen miles an hour as it made the turn. After the impact, the car rolled to a stop into the curb in front of a house. It was only after the car came to a stop and he got out and saw the motorcycle in the road that he realized there had been an accident with a motorcycle. He did not see any evidence that the motorcycle had a headlight on at any time before the accident.

On cross-examination, he agreed that when he gave a statement to the police immediately after the accident, he said he never saw the motorcycle before the accident, and thus could not really say whether it had a headlight on or not. He also agreed that the car had tinted windows, that he had been at a party with the driver and the two other passengers, but that no one in the car had consumed any alcohol or marijuana at the party.

Daniel Antoniou, the driver of the Volkswagen Golf, testified as to his recollections of the accident. As he traveled on Route 347 eastbound that night, the weather was clear, the road was dry and there were very few cars on the road. The traffic signal was a solid green light as he slowed to make a left hand turn onto Brooksite Drive, and he recalled traveling at perhaps 25 to 30 miles per hour, " . . .[n]ot too fast at all." Before making the turn, he looked for westbound traffic and saw nothing, and knew that he had two lanes of traffic to cross in order to make the turn. He had not brought his car to a stop to make the turn. He felt a big impact, pulled the car to the side of the road, and got out. When the police arrived, he gave the officers a statement.

On cross-examination, he confirmed that at his deposition in 2001 he stated that he wore glasses for "distance." [T(3)-24]. He later explained that he was concerned after the accident and went to get his eyes tested sometime thereafter, and that he was prescribed glasses for distance in December 2000. He reiterated that when he first saw the light at the intersection, it was a solid green ball, and it had not been a green arrow during the time leading up to his making the turn. He said that he and his girlfriend had been on "bad terms" all night and were "not really" talking at the time he made the turn, nor were the rear seat passengers. [T(3)-33]. He was not rushing to get Paul home although it was after Paul's curfew, and any music that was on in the car was "minimal." [T(3)-34]. He did not recall any stopped cars facing southbound on Brooksite Drive at the intersection, and agreed that had there been any cars facing southbound on Brooksite as he made his turn northbound he would likely have seen them.

Mr. Antoniou was aware that a woman named Joanna Pisani said she was stopped on Brooksite Drive at the intersection, and recalled that his parents had been in contact with her "to keep in contact as a witness." [T(3)-39]. He could not otherwise explain why there would have been contact with Ms. Pisani.

Joanna Pisani, indicated that she was southbound on Brooksite Drive and stopped at the intersection of Route 347 and Brooksite Drive on the night of September 30, 2000 when she witnessed the accident. She was returning from her job at St. Catherine of Sienna Hospital, where she worked as an x-ray technologist. Stopped at the light, and preparing to make a right-hand turn onto Route 347 on her way home, she saw the car turning, traveling "not fast at all" and then saw an accident with a motorcycle.[T(3)-44]. She stated that the motorcycle did not have a headlight on.

On cross-examination, Ms. Pisani confirmed that at the time of the accident, a right turn was permitted after stopping at the red light at Brooksite Drive. She said she was "just about to make . . . [a right-hand turn] as the accident happened." [T(3)-50]. She agreed that as Brooksite Drive approaches Route 347 it is a curvy, winding road, and veers off to the right turn lane. She estimated that she was angled to the right at a slight turn of perhaps "fifteen, twenty degrees." [T(3)-51]. The witness maintained that her car was stopped directly at the intersection in the right-turn lane, and that no debris from the accident hit her car - except she noted that a piece of metal was on the ground by her car - even when shown a photograph she identified as fairly and accurately depicting the southbound side of Brooksite Drive at its intersection with Route 347 immediately after the accident that shows what appears to be an entire luggage rack between the white stop line and a right turn arrow on the pavement of Brooksite Drive. [
See Exhibit 27]. She also said that when she exited her car she was headed over to the motorcyclist to check on him, but then went to check on the kids in the Volkswagen because others had gotten to the motorcyclist first. She did not recall having any contact with Daniel Antoniou's parents or any prior acquaintance with them. When questioned further about her view of the motorcycle, she admitted that she never saw the motorcycle prior to the impact.
Matthew Hoffman, presently a design supervisor and an employee of the DOT since 1981, testified concerning his involvement during 1999, 2000 and 2001 in the intersection with Route 347 and Brooksite Drive. It was he who was responsible for the environmental impact Statement (hereafter EIS) for the " . . . Route 347 [corridor,] from its start at Northern State Parkway out until its end at Port Jeff." [T(3)-69]. He explained that although he could not recall the exact date of the commencement of work on Route 347, his responsibility began in 1998, and continues to this day. He recalled many communications with fellow engineers via e-mail, memoranda and face-to-face discussions relative to the improvement of the intersection. He described generally how his design group operated with respect to the traffic and safety group of Region 10. At the conceptual level, he explained, "[t]raffic would be more involved" [T(3)-78], addressing a specific concern voiced by the citizenry, for example, and screening such requests for urgency. Traffic and safety developed an initial concept, and Mr. Hoffman then " . . . got involved to take a review of what they were looking at to make sure that their concept would fit into what our overall 347 project was looking to do on that highway so that they were compatible and that we didn't do one thing and then reverse it with another project." [T(3)-79]. The designer ultimately assigned to the project was Brian Hoffmann, who worked in Matthew Hoffman's design group, and a set of plans was developed.

One of the concerns voiced in an April 1999 e-mail that appears to be responding to a draft proposal then circulating is the illogic of expanding Route 347 to three lanes at its intersection with Route 111, having it merge back to 2 lanes for 600 feet, to only have it expand to three lanes again at its intersection with Brooksite Drive. [Exhibit M].

On cross-examination he conceded that by February 5, 2000 at the latest - when a project number had been assigned - it was his understanding that funding was secured so funding was not an issue. He confirmed that the group directors - the regional design engineer, the regional traffic safety engineer, and the regional program and planning manager - met weekly. The witness conceded that if there were discussions about an urgent traffic safety issue at the subject intersection, it would be shared between these managers at a minimum. Mr. Hoffman also conceded that in April 1999 he was aware that a permit from the Department of Environmental Conservation would be required were they to expand the two westbound lanes to three westbound lanes on Route 347, [
See Exhibit 18]; and acknowledged that the permit was applied for in August 2000. [See Exhibit 22]. He also explained, however, that once the need for a permit is identified, the DEC will not even consider an application for a " . . . permit until you have nearly final detailed plans . . . If you send DEC permit plans that are incomplete, you'll get them bouncing back." [T(3)-118-119].
He did not know, however, when the permit would have been granted because he would not have been told a specific date
. Mr. Hoffman confirmed that the comprehensive Route 347 plan was never completed, but is still being worked on, and that along Route 347 as well as many other parts of Long Island there are wetlands. He conceded that putting in a fully protected left turn by merely changing the signalization would not have required seeking a permit from the DEC, but he would not say that the need to secure the DEC permit was what delayed the overall project. Additionally, he could not recall that the word "urgent" was ever used in connection with this project; nor could he say whether the alternative of changing the signalization was discussed. He testified that he was not aware of the February 17, 1999 memorandum by Thomas Oelerich indicating the need for a fully protected left turn at that intersection to address the left-turn accidents. [See Exhibit 13].
Richard Causin, an employee of the DOT since 1992, and a licensed engineer working in the traffic and safety unit during the relevant period, testified. It was he who supervised a study of the intersection, including an analysis of accidents over a three-year period. He tabulated traffic volume and used a stop watch to monitor cars and time any delays as the cars negotiated the intersection.

After the study was completed, Mr. Causin took the data and analyzed it with other engineers from different units, including his supervisor, the regional traffic engineer and planning and design. The planning people would resolve any funding issues.

Mr. Causin said that with regard to design, " . . . this was a very complicated issue that had to deal with capacity, not just safety . . ." [T(3)-134]. He said that " . . . [c]apacity has to do with operation of the intersection. We have to be able to move a certain amount of people through. We can't move them through the intersection number one. We get . . .[queues]. Cars start stacking up and it creates safety issues up and down the State highway." [
id.].
Mr. Causin claimed that one of the first suggestions considered was to "just put in the left-turn arrow and we did a level of service analysis which determines how the capacity of the operation of the signal would work, and it was determined that we would have a large . . . [queue] in the AM in the westbound direction of 347 because when we put in the left-turn arrow for eastbound . . . we would have to take the time, that extra amount of time to get those vehicles through in the fully protected stage would have to come from somewhere . . ." [T(3)-34-135].
A "jug handle" alternative was also considered, but involved possible condemnation of adjoining private property on Brooksite, in addition to possible DEC issues. Use of the westbound shoulder of 347 as a temporary through lane for part of the day, the complete elimination of the northbound and southbound movement on Brooksite, and rerouting traffic entirely were other alternatives considered.

The final reconfiguration decided upon was to "extend the eastbound left-turn lane for capacity, put in the left-turn arrow as fully protected and install a third lane [westbound] through Brooksite. We were going to extend the pocket lane . . . at [the] 111 [intersection with westbound Route 347] all the way through Brooksite Drive for the capacity that we needed in the AM."

[T(3)-140].
On cross-examination Mr. Causin conceded that temporarily implementing a fully protected left-turn arrow at the intersection at all times except during the morning rush hour was not considered. He stated, however, that this type of operation is not in the New York State Manual of Uniform Traffic Control Devices, and that is why it was not considered as an interim solution. He agreed that it was not prohibited by the State manual, however, he said " . . . [t]he manual doesn't go into the negatives. The negatives would make a manual a million pages large." [T(3)-152]. He also agreed that the State manual allows the exercise of good engineering judgment in addition to its provisions, and has as a main purpose encouraging uniform signalization from one State to the next to avoid confusion for the motoring public. Although Mr. Causin was unaware that the federal manual was used as a guide for the State manual, he was aware that the federal manual expressly provided for a fully protected left-turn arrow except for the morning peak hours. Shown collision diagrams for the period from July 1992 to April 1998, [
See Exhibit 12]. Mr. Causin agreed that the number of left-turn accidents off eastbound Route 347 at the intersection was clearly increasing. He also agreed that around February 1999 he recommended to Thomas Oelerich that a fully protected left-turn arrow be put in. He would not concur that the April 1999 memorandum from Thomas Oelerich, indicating plans were attached, would constitute the transmission of more than a conceptual plan. He said that it would be the design group that would create final construction plans. He also said " . . . [t]he only plans we create in traffic and safety for construction would be signal plans." [T(3)-161].
Joseph Scariza, the Regional Design Engineer for Region 10 during the relevant period and retired since March 28, 2003 from the DOT, testified about the role of the design group on this project.

As the head of the group, it was Mr. Scariza's " . . . responsibility to see that the plan specification and estimate was prepared to be given out to a contractor for bids so that they could construct the project." [T(3)-179]. As an initial matter, he said, it had to be determined what type of work was going to be involved, to determine, for example, whether there would be environmental impact to the surrounding area, requiring the preparation of an EIS.

Additionally, as to the type of project, how the funding would be secured would be considered. Rather than send this project out for a bid, and the time constraints involved with that process, he said that the safety requirements contract appeared to be the mechanism for funding. The ultimate project, he noted, ended up being much bigger than one that would normally fall under the safety requirements contract, such as replacing a section of guide rail for example.

There were discussions between him and Mr. Oelerich and others in Region 10 about whether the project could use the safety requirements contract or not. It had been Mr. Scariza's view that without doing an environmental analysis, it would be illegal to use that process. Given the proposed widening of the roadways, and additional drainage then required, the mapped wetlands would be implicated, as would how to deal with storm water.

When shown the memorandum dated April 1, 1999 he received from Mr. Oelerich, Mr. Scariza said that the plans referred to in the document were conceptual plans that the traffic group would have sent to design, not plans that would be given to a contractor. He had many conversations with Brian Hoffmann also about implementing the project, and recalled that Brian agreed that an environmental analysis was needed.

On cross-examination, he agreed that the longest mechanism for funding was probably bidding out the contract, rather than using either the safety requirements contract, or attaching the project to another existing contract. He thought it was "possible" that implementing a traffic signal change alone could have been done through the safety requirements contract. [T(3)-191]. He agreed that the proposed additional westbound through lane was an addition to the project. He said there was environmental "mitigation" required with regard to increasing the eastbound left-turn storage lane, because there would be drainage work involved. Mr. Scariza did not personally recall that an interim solution of changing the signalization to fully protected during off-peak hours was ever considered, but he also indicated that would not have been a decision made by his group.

Based upon March 21, 2000 e-mail memoranda between Mr. Scariza and Mr. Oelerich, there was an ongoing dispute as to the efficacy of using the safety requirements contract as suggested by Mr. Oelerich and Mr. Scariza's environmental concerns, and additional concern vis-à-vis
the complete Route 347 corridor project. [See Exhibit 28]. Mr. Scariza could not say how long a delay, if any, was caused by the dispute, but said that "[t]he delay wasn't deciding what contract to put it through. The delay was deciding what process to use to get the project approved." [T(3)-203].
Brian Hoffmann, a licensed civil engineer employed by the DOT and self-described "design squad leader" for the project at the intersection of Route 347 and Brooksite Drive, testified. [T(4)-6]. He explained that a "design squad" he would supervise is comprised of one or two unlicensed engineers, and "some lower level technician type people" whose primary task was to prepare designs and plans for various types of transportation improvement projects. [
id.].
The project came to his attention through his immediate supervisor, Edward Beuel, as well as Matt Hoffman and the Regional Design Engineer, Joe Scariza. At the time, he recalled, Matt Hoffman was overseeing a corridor study for the entire Route 347 corridor, which is why he was involved. Although Brian Hoffmann was not involved in the decision to make a fully protected left-turn signal, and he recalled that in order to facilitate that change it was decided that the eastbound left-turn lane needed to be lengthened for additional storage, and that an additional westbound travel lane would be added, he remembered the other alternatives proposed as well, such as the jug-handle and use of the shoulder westbound.

He noted that there had been some difference in focus between the traffic and safety group and the design group, in that the design group was concerned with a perception that adding a third lane along only a portion of a much studied corridor would mean "segmentation," which he explained was "not allowed" whereas the traffic and safety group was not as concerned about it. [T(4)-32-33]. As a result, he said, there were some "lengthy and intense discussions about whether the safety requirements . . . [contract] was the appropriate vehicle with which to deliver this project [in terms of funding]." [T(4)-33].

When asked, the witness said he did not have anything to do with the status of the traffic signal during the design phase, which was described in detail. He also thought that this particular project was treated differently from those in the normal course, in that there was no formal written-comment period during which the various groups would review "90%-complete" plans and report back within a set time frame. [T(4)-38]. Design would then address the comments. He assumed that since this formal process was not utilized - there is no written record of it in the files he reviewed - either other groups did not review the plans or there was an informal-type review.

[T(4)-39].
A voluminous set of design plans dated June 2000 were identified as those prepared by his group. [Exhibit SS].

On cross-examination, when Brian Hoffmann was asked why he had written the memorandum on March 22, 2000 [Exhibit 20] saying to just put in the fully protected left turn, the witness explained that it was said in "frustration." [T(4)-48] He said that the debate between the design group and the traffic and safety group as to whether it was appropriate to use the safety requirements contract to deliver the project gave him the impression that the traffic and safety group was not taking into consideration issues raised by the design group. In his e-mail, Mr. Hoffmann explained he was saying that if traffic and safety isn't willing to discuss issues raised by the design group, " . . . then why not take another direction." [T(4)-49].

He confirmed that a change in signalization could be done through the safety requirements contract with a work order. He also confirmed that his suggestion that the signalization be simply changed, despite the likelihood of the morning rush-hour congestion, was not studied further.

Brian Hoffmann said it would not surprise him to learn that once the construction on the project began, it would take only one month to complete inclusive of additional storage in the eastbound left-turn lane, and the addition of a westbound through lane.

Emilio Sosa, Director of the Informed Traffic Management System of the DOT, testified about the traffic signal operations group and the signal operations and design group. He described the traffic signal operations group as the " . . . in-house maintenance forces . . . charged with answering letters, turning traffic signals on, maintaining traffic signals and so forth." [T(4)-74]. The witness is responsible for the day-to-day operations of traffic signals, while another supervisor handles signal design. He described the components of a traffic signal, including poles, the signals themselves, tripping wires in the roadways, and the controller - or "brains" - of the traffic signal. [T(4)-75].

The controller reacts to the various "inputs through it", such as pedestrian walk buttons, preemptive signals from emergency vehicles, and trip wires.

It was Mr. Sosa who directed the changes to the traffic signal at the intersection of Route 347 and Brooksite Drive. He recalled that the rebuilding of the signal occurred at about the same time that the construction of the roadway was done. When asked what he thought of Mr. Bellizzi's opinion that an interim solution of a fully protected left-turn signal be implemented except during the two-hour morning rush, Mr. Sosa said that " . . . [g]iven our equipment and the software that runs it, I have not been able to figure out a way to make it work. There's also issues with consistency with the rest of the signals that we have throughout the State highway network, not to mention the fact that it's not in our . . . manual." [T(4)-78]. He said that when engaged in traffic engineering, " . . . you look for consistency so people can recognize something they . . . [see] and react in a consistent manner . . . [such as] red is on top, [and] green is on the bottom [of a traffic signal]."
[id.]. He opined it would not be easy to implement given the type of controller they had and the safety equipment in the cabinets.
When Mr. Sosa checked the manual for programming the controller, he could not figure out how to make the left turn operate in such a manner. He found, however, that such movements were used in Florida and Texas using " . . .a five section head which would be a head with a red ball, yellow ball, green ball, left yellow arrow and left green arrow . . .when you're running fully protected [the red] needs to come on after the amber arrow does. So it would go green arrow, amber arrow, red ball to prohibit anybody from making that left, but when it's running protected permissive, . . . it would go green arrow, yellow arrow and the green ball needs to be up and it can't go to red because then you have conflicting indications on the one signal head. You have a red ball and a green ball on a particular head that has been tasked with controlling this one separate movement and I can't figure out with the internal logic of the controller how to do that." [T(4)-79-80]. Given the safety equipment in the system, the conflict monitor in the controller would be triggered were there to be conflicting signals. When the monitor detects conflicting signals, such as a red and a green, the signal is put in flash format. Mr. Sosa said he was unable to determine how to use the available equipment to avoid such conflicts.

On cross-examination Mr. Sosa indicated he would generally consult the State manual two times per month, was aware that the federal manual was the source for the State manual, but thought the State manual had superseded it. He was also aware that the federal manual provided for the variable signal discussed.

He confirmed that he had never been consulted prior to September 30, 2000 on the feasibility of implementing a variable signal, and had not seen the particular provision describing such a signalization pattern in the federal manual prior to the day of the accident. He agreed that in calendar years 1999 and 2000 the State manual did not prohibit such a variable left turn. He agreed that between calendar years 1998 and 2000 there were outside companies that designed and built traffic signals, and during that same period he was never asked to consult with any of these outside companies to see if they could design or build a controller providing for fully protected eastbound left turns except for peak periods of the day.

During 1998, 1999 and 2000, Mr. Sosa agreed that there were traffic lights in New York State that varied as to timing during different periods of the day, but said these were "completely different" from phasing changes. [T(4) -98]. Additionally, he agreed that there were left-turn signal lights that would be activated as a car went over a loop detector, resulting in a changed timing sequence for the light, as well as a possible green arrow, red light or green bulb confronting the motorist, and that these were "standard" and not "confusing."

He insisted upon a distinction, however, between language in the State manual indicating that phasing variations and sequences were possible to meet special conditions - with the specific treatment governed by traffic conditions at each intersection - and changes of phasing in a particular movement such as the left turn. Although changes in phasing of a particular movement is not prohibited in the State manual, he indicated that it was his interpretation of the manual that the variations in phasing contemplated were " . . . in terms of lead lag, split phase side street and stuff like that, not changes of phasing in a particular movement." [T(4)-100].

When shown signal lense arrangements from the State manual depicting five phase signals that would allow for a fully protected left turn for most of the day, and a permissive signal for two hours a day, [
See 17 NYCRR 279.2 (M), (S)], Mr. Sosa said that were they to be placed over the left-turn lane he thought there would be confusion in that a motorist would think he had the right- of-way and proceed through the intersection. He said that the way the signal light is shown to hang at the intersection in the photograph depicting it [See Exhibit 1] - between the left-turn lane and the left through lane rather than directly over the left-turn lane - is more consistent with how such lights are hung throughout Long Island. He would not concede that the use of a sign describing the timing of the left-turn would help avoid any confusion.
From a review of the documents, a need for a DEC permit for the additional westbound lane was identified on April 19, 1999 at the latest [Exhibit 18], the permit was applied for by August 22, 2000 [Exhibit 22] and the permit was granted on September 5, 2000. [Exhibit 23].

No other witnesses testified.

After four days of testimony, the Court is nonetheless left with the impression that there has been no explanation of why it took from February 1999 to June 2000 to create a set of plans for the intersection of Route 347 and Brooksite Drive, when a determination had been made that safety concerns mandated the creation of a fully protected eastbound left turn, and why interim solutions - while the engineers designed the intersection
ad nauseam and continued to "cut bait" - were not either considered or implemented.
DISCUSSION AND CONCLUSION
The State has a non-delegable duty to maintain its roads and highways in a reasonably safe condition to prevent foreseeable injury, but is not an insurer of the safety of its roads.
See Friedman v State of New York, 67 NY2d 271 (1986).[3] No liability may attach unless the ascribed negligence in maintaining the roadway is a proximate cause of the accident. Hearn v State of New York, 157 AD2d 883(3d Dept 1990), (lv denied 75 NY2d 710 (1990)). In fulfilling its obligation the State may assume that those using its roads will use reasonable care and obey the law governing the operation of motor vehicles. See Tomassi v Town of Union, 46 NY2d 91, 97 (1978).[4]
Where a claim is based upon negligent design, the State's planning and decision making function enjoys qualified immunity.
Weiss v Fote, 7 NY2d 579 (1960), rearg denied 8 NY2d 934 (1960). Liability attaches only when the design was evolved without an adequate study or lacks reasonable basis. Once the State has implemented a traffic plan, it is under a continuing duty to review its plan in the light of its actual operation. Friedman v State of New York, supra at 284; Olson v State of New York, 139 AD2d 713, 715 (2d Dept 1988 ). Failing to correct a known hazardous design could render the State liable based upon that continuing duty to review plans in light of actual operation. See Atkinson v County of Oneida, 77 AD2d 257, 261 (4th Dept 1980), app after remand, 89 AD2d 826, affd 59 NY2d 840 (1983); see also Van Son v State of New York, 116 AD2d 1013 (4th Dept 1986); Zalewski v State of New York, 53 AD2d 781(3d Dept 1976).[5]
No liability may attach, however, unless Claimant establishes that the State had actual or constructive notice of a dangerous condition and failed to take reasonable measures to correct the condition.
Brooks v New York State Thruway Auth., 73 AD2d 767, 768 (3d Dept 1979), affd 51 NY2d 892 (1980).
Perhaps most importantly, whatever kind or degree of negligence is asserted it is the claimant's burden to show that the negligence claimed is the proximate cause of his/her injuries.
Jordan v State of New York, 249 AD2d 279 (2d Dept 1998); Hearn v State of New York, supra 885.
In
Marren v State of New York, 142 AD2d 717 (2d Dept 1988), the Second Department found that the DOT had unreasonably delayed installation of a traffic signal at an intersection near a proposed commercial development, when perhaps two years previously - the time frame was not clear - a determination had been made to install it for safety reasons, and the obligation to install it had been imposed upon the commercial developer contingent on final approval of his project. Shortly before completion of the project, meetings between representatives of the DOT and the developer resulted in releasing the developer from installing the light and further postponing the installation until a more extensive project relating to improvements along the State road was completed. An interim measure of additional stop signs was put in place, controlling only the traffic from the local road's intersection with the State road. Claimant's decedent was struck by a northbound vehicle as she attempted to negotiate a turn onto the State road heading south, almost a year after the DOT had removed the developer's obligation to install a traffic light. The traffic signal light was made operational nine (9) months after her death. The Court said " . . . in this case the DOT's plan to postpone the installation of a traffic signal after previously determining that the intersection should not be opened without such a device lacked rational basis." Marren v State of New York, supra at 719.
Although in
Marren v State of New York, supra, the determination that a traffic signal was required was premised on a perceived statutory and regulatory requirement[6], rather than a discretionary safety determination by DOT personnel, it is nonetheless instructive here because it suggests that there must be a point where planning - and all the immunized determinations of engineering professionals - ends, and implementation begins.
Here, the salient point never varied: that a fully protected eastbound left-turn signal was necessary for safety reasons at the intersection of Route 347 and Brooksite Drive. After that, in this Court's view, the solution was bureaucratized and "over-engineered," leading to the very foreseeable type of accident that occurred here.

In
Heffler v State of New York, 96 AD2d 926 (2d Dept 1983), the Claimant was injured in an intersection accident, partly because median barriers installed 10 years earlier by the DOT obstructed views of oncoming traffic on the Taconic State Parkway. Despite two years' notice of increased accidents at the location, the DOT failed to take reasonable steps to modify the intersection. The Court found that the driving errors of the car that struck Claimant were not intervening acts sufficient to relieve defendant of all liability. Such collisions, the Court said, are clearly a "normal and foreseeable consequence of the situation created by the defendant's negligence . . . (citations omitted)." Heffler v State of New York, supra at 927. Similarly, the Claimant's own driving judgment error rendered her comparatively negligent. Not without dissent, the Second Department found the State 50% liable: a decrease from the original 75% liability found by the trial court. The dissent would have dismissed the claim.
Notably, in analyzing the facts presented, the Court approved of the trial court's reasoning to the effect that the basis for the State's liability was its failure - after the barriers installed rendering other parts of the highway safer, but significantly increasing the risk at this intersection - " . . . to take reasonable steps to modify the intersection once they knew of the dangerous condition created by the median barrier and lack of refuge [from oncoming traffic]; a danger that the State's ‘safety experts' knew the flashing indicator had failed to correct."
Heffler v State of New York, supra at 927.
In one of the three cases later addressed by the Court of Appeals in
Friedman v State of New York, 67 NY2d 271, supra, the Second Department decided that the New York State Thruway Authority's determination not to install median barriers on straight sections of the Tappan Zee Bridge - where Claimant had been injured in a crossover accident - was the result of appropriate studies and did not lack reasonable basis, and was consequently immunized under Weiss v Fote, supra. Muller v State of New York, 108 AD2d 181, 185 (2d Dept 1985). While it made its ruling "reluctantly", what is relevant here is that there was a study made in Muller v State of New York, supra, and options were considered and rejected. Saying that while hindsight may show that options rejected might have been preferable, the Second Department nonetheless said that " . . . something more than a conflict among expert opinions must be shown before liability may be imposed . . . (citation omitted). Since ostensibly sound reasons were given for the staff recommendations, it would be error for us to retrospectively declare those determinations arbitrary and unreasonable." Muller v State of New York, supra, at 188. Tellingly, the Court of Appeals reversed Muller, saying that the three-year delay between the Thruway Authority's decision that barriers were needed and the Claimant's accident was unreasonable. Friedman v State of New York, 67 NY2d 271, supra at 287.
In this Court's view, the failure to consider temporary options in the face of a known dangerous intersection - and the Court is not unmindful of the testimony elicited from State employees whereby they distanced themselves from the notion that improvement of this intersection was "urgent" - can be viewed as evincing inadequate study, as well as unreasonable delay in implementing a safety plan. No State witnesses demonstrated that the delay in remedying the known dangerous intersection " . . . was necessary in order to formulate a reasonable safety plan, or that the delay stemmed from a legitimate ordering of priorities with other projects based on the availability of funding."
See Giske v State of New York, 191 AD2d 675, 677 (2d Dept 1993); cf. Trautman v State of New York, 179 AD2d 635 (2d Dept 1992). Once the determination was made that the fully protected left turn was necessary, it was incumbent upon the State to implement the change with reasonable speed. See Friedman v State of New York, supra at 284; see Ross v State of New York (Claim No. 90987, February 14, 1997, Ruderman, J.)[7]. By the time environmental concerns arose and disagreements over how to process a project that had already grown extra, nonsafety-related legs ensued, further unreasonable delay was already built into the project, rendering the State at least partially liable for the accident that befell Mr. McGrath. Clearly, but for the State's failure to install a fully protected left turn at this intersection, the two drivers would not have had the conflict of negotiating the intersection.
Based on this record, Mr. Antoniou's driving error also contributed to the accident since he failed to make sure the road was clear before making a left turn, and thus failed to yield the right-of-way. This error, however, did not constitute an intervening act sufficient to relieve Defendant of liability. Additionally, Claimant himself does not bear any culpability for the happening of the accident.

In
Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 (1980) the Court of Appeals Stated in pertinent part, " . . . [t]o carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury . . . (citations omitted). Plaintiff need not demonstrate, however, that the precise manner in which the accident happened, or the extent of injuries, was foreseeable . . . (citation omitted). Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence . . . (citations omitted). If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus . . . (citations omitted)."
Overall, Ms. Pisani's testimony regarding what she saw - or did not see - lacked internal consistency and is therefore not credited. Although Mr. Antoniou testified to at least a prior acquaintance with Ms. Pisani based upon his parents' contact with her, for some unknown reason she denied such contact. Judging by the configuration of the intersection, she was not in a position to have the view she claimed to have of oncoming traffic. Indeed, she contradicted herself in saying first that she saw the Claimant's motorcycle traveling without a headlight, and then admitting that she never saw the motorcycle prior to the collision. Additionally, she spoke of the lack of debris near her car, yet photographs clearly show what appears to be an entire luggage rack right by it. These inconsistencies, together with her demeanor as she testified, render her testimony incredible.

Other than Ms. Pisani's testimony, no testimony suggests that the Claimant's motorcycle did not have a working headlight. Mr. Antoniou - who concedes he did not stop before making a left turn - did not see anything. He admits that he obtained prescription eyeglasses within three months of the accident, and had worn eyeglasses for distance.

Sergeant O'Malley, charged with the duty of investigating the accident initially, determined that in his estimation, it was the Antoniou vehicle that had failed to yield the right-of- way. From the testimony and the photographs depicting the scene showing some ambient light emanating from the intersection itself, as well as light from the Antoniou vehicle, at some point prior to the impact the Antoniou vehicle was not only legally obligated to yield the right-of-way to the Claimant [
Moreback v Mesquita, 17 AD3d 420, 421 (2d Dept 2005)], but could have made some evasive maneuver. As noted, the driver testified that he did not stop his car prior to turning, but only slowed down.
These errors of driving judgment by Mr. Antoniou, however, did not constitute intervening acts sufficient to relieve Defendant from liability because Mr. Antoniou would never have been in a position to make such judgments but for the Defendant's failure to timely correct the intersection. Indeed, the type of accident occurring is reasonably foreseeable, and an

" . . . ordinary result of a situation caused by defendant's negligence." Heffler v State of New York, 96 AD2d 926, supra at 927; Derdiarian v Felix Contr.Corp., supra[8]; cf. Maheshwari v City of New York, 2 NY3d 288 (2004)[9]; Martinez v Lazaroff, 48 NY2d 819, 820 (1979).[10]
As noted, Mr. Antoniou, however, shares responsibility for Mr. McGrath's injuries.
See Brown v State of New York, 268 AD2d 548 (2d Dept 2000); Horst v State of New York, 6 Misc 3d 1025(A), 2005 WL 413170 (Ct Cl 2005); Civil Practice Law and Rules §1601(1).
Accordingly, the Court finds that the Defendant State
was 40% responsible for the happening of the accident herein, because the foreseeable result of its failure to timely implement a fully protected left turn at this intersection was the kind of accident that occurred here, and that Mr. Antoniou was 60% responsible.
The Chief Clerk is directed to enter judgment on the issue of liability as set forth herein. A trial on the issue of damages will be scheduled as soon as practicable.

Let interlocutory judgment be entered accordingly.

August 12, 2005
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] Kathy McGrath's cause of action is derivative in nature. References to Claimant herein refer to Thomas McGrath, Jr.
[2] All quotations are to the transcript unless otherwise indicated. Here, [T(1) -22]. T(1) refers to testimony on March 28, 2005; T(2) March 29, 2005; T(3) March 30, 2005; T(4) March 31, 2005.
[3] These three cases decided concurrently, all involved so-called ‘crossover' accidents occurring on State constructed and maintained highways, and in each case, the alleged negligence was the State's failure to install median barriers.
[4] " . . . [S]o long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied . . .", at 97.
[5] Zalewski, supra, and Van Son, supra, involved the failure to either upgrade or appropriately replace guardrails. Notice of a dangerous condition was well established. In Zalewski, supra, the State contended that the correctness of its design could not be reviewed by the courts
because the structure in question complied with good engineering practices in effect at the time it was built. In rejecting this argument, the Court held that the State was liable if the design lacked a reasonable basis and subsequent events demonstrated the presence of a dangerous condition.
id.
[6]Interestingly, the Court refers to Vehicle and Traffic Law §§1680 and 1681 requiring, generally, that the State adopt a manual of uniform traffic control devices as well as a regulation within the manual regarding when a traffic signal is warranted at an intersection having a particular volume of traffic. See 17 NYCRR 271.4.
[7] The State's one-year delay in repaving portion of high-speed road it had determined needed resurfacing to remedy dangerous condition unreasonable, and such delay not part of considered plan taken on the advice of experts, or emanating from ordering of priorities. No evidence presented by State of the cost of resurfacing, the amount of funding available, or manner in which projects were prioritized. Testimony by DOT personnel that they were doing everything possible to expedite completion of resurfacing project viewed as conclusory, self-serving and not supported by documentary evidence.
[8] Driver's failure to take medication resulting in epileptic seizure while driving was not superseding cause as matter of law interrupting the link between the Defendant's negligence in failing to safeguard the construction site and employee's injury at work site.
[9] Even assuming a lapse in the security in the parking lot, plaintiff's injuries were not the result of any such lapse, but were caused by an independent, intervening criminal act, when plaintiff a victim of unprovoked assault at concert in a city park.

[10] Landlord failed to supply hot water to tenants. Plaintiff's father resorted to bringing hot water from elsewhere in pots, spilling on Plaintiff and causing injury. Finding landlord's negligence and plaintiff's injuries too attenuated as matter of law, the Court said: "The intervention of the father brought about injuries to his son which were entirely different in character from any that would have resulted from the failure to supply hot water alone, and those injuries cannot be classified as normally to have been expected to ensue from the landlord's dereliction."