New York State Court of Claims

New York State Court of Claims

SLOTNICK v. THE STATE OF NEW YORK, #2006-033-566, Claim No. 107010


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

James J. Lack
Claimant’s attorney:
Sarisohn, Sarisohn, Carner, LeBow, Braun & ShieblerBy: Gerard A. DeVita, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Denis J. McElligott, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim by Mitchell Slotnick (hereinafter “claimant”) based upon the alleged negligence of the defendant. The trial of this claim, held on May 23 and 24, 2006, was bifurcated. This decision pertains solely to the issue of liability.
On May 29, 2002, at approximately 11:40 a.m., claimant was involved in a one car motor vehicle accident. The accident occurred as claimant was southbound on the Sunken Meadow Parkway and attempting to exit the parkway by using a ramp leading to the westbound Northern State Parkway. The Sunken Meadow Parkway is a major north/south divided highway in Suffolk County, New York. It is a limited-access highway, with two lanes in each direction.
Claimant testified that he entered the Sunken Meadow Parkway at Pulaski Road. Claimant was westbound on Pulaski Road when he got on the parkway. He was proceeding southbound toward the Northern State Parkway. It was claimant’s intention to take the Northern State Parkway westbound to Huntington, New York. The distance from claimant’s entrance onto the parkway and his exit is approximately 5 miles. Claimant stated he was “left-laning it most of the way” (T13).
As claimant approached the Northern State Parkway, he had to move to the right to exit. There was an Expedition next to claimant on the road, so he decided to coast to slow down and allow the other vehicle to get ahead of him. When the vehicle passed, claimant moved into the right lane to get onto the exit ramp toward the Northern State Parkway. Claimant stated he was now right on top of the exit ramp
and was still coasting. He estimated his speed to be somewhere in the 50's. Claimant moved toward the ramp and “instantaneously” (T14) began hitting traffic cones (hereinafter “cones”) such as claimant’s Exhibit 2. According to the testimony, claimant’s view of the cones on the ramp was blocked by the Expedition. Claimant then tried to steer around the cones and in the course of maneuvering, lost control of the vehicle and flipped his SUV five times (T14).
During his direct testimony, claimant stated he did not see any signs indicating that work was being done on the Sunken Meadow Parkway. Specifically claimant did not see any signs which stated “ROAD WORK AHEAD” and “WET PAINT” (defendant’s Exhibits B and C). In addition, claimant stated, on direct, that he did not see any cones along the edge of the roadway. However, on cross-examination, claimant admitted to seeing some “[a]long the side of the road right, right before the entrance ramp . . . [r]ight after I merged into the right lane and followed the Expedition, I did see a couple of, of cones alongside the road” (T21).
In addition to testifying on his own behalf, claimant called five witnesses, four of which were New York State Department of Transportation (hereinafter “NYSDOT”) employees, and the fifth being claimant’s expert, Joseph Champagne (hereinafter “Champagne”). Claimant also submitted the deposition testimony of Michael Motti (claimant’s Exhibit 5) and that of Trooper William Connolly (claimant’s Exhibit 4). Michael Motti, also, is a NYSDOT employee. Ken Lavoie, the Regional Safety Officer of the NYSDOT, testified on behalf of defendant.
The NYSDOT employees who were called by claimant - Dennis Seiderer, James Loud, Robert Castrovinci, Frank Sulsona and Michael Motti - were members of the paint crew on the date of claimant’s accident, and their testimony as to how the paint crew operates was almost identical. First, the Court notes, the paint crew is a specialized unit within the NYSDOT. This crew paints all the lines on State roadways in Nassau and Suffolk Counties. The term “paint” is a term of art
because the crew does not use paint any longer. The paint crew applies a two part epoxy glue (T49). Depending on the weather conditions, this glue will take anywhere from 45 minutes to 4 hours to cure.
Based upon the cumulative testimony of the witnesses, the Court was able to see an overall picture as to how the crew operates. The paint crew begins their day with a tailgate meeting. At this meeting, the project of the day is discussed: where are they going; which portion of the road is being painted; which lines are being painted. Jobs are not assigned at this meeting because the individual jobs were assigned when each member joined the crew. If someone leaves the crew, another member can move into that position; otherwise, each man is doing exactly what he did the day before. The paint crew is a mobile operation with a number of trucks driving on the road as in a caravan. The first truck is the paint truck, which consists of a driver and up to two painters on the back of the truck. The supervisor’s pick-up truck follows next. The next truck is the cone truck with a driver and one or two other employees in a basket which hangs off the back of the truck. The truck is used for the placement of cones on the roadway, which is done by the person or persons in the basket. A safety truck follows with a traffic attenuator attached to the back of it.
In addition to these trucks, there is also a sign truck. This truck carries the “WET PAINT” and “ROAD WORK AHEAD” signs which are placed on the side of the road. After the sign truck gets the necessary signs in place, it will go over the areas where cones have been placed to set upright any cones which may have been knocked over.
On May 29, 2002, the paint crew was painting the edge line of the southbound lanes of the Sunken Meadow Parkway. The edge line is the white stripe running along the shoulder edge of the right lane. The skip lines of the exit and entrance ramps to the parkway were also being painted.
When the painting crew proceeds down the road at approximately 4 - 5 miles per hour, after painting, the cones are dropped on the inside portion of the edge line between 50 and 100 feet apart and at the head of every skip line. The cones which are placed on the roadway are similar to claimant’s Exhibit 2; they have a 15 inch by 15 inch base and are approximately 2 ½ feet tall, weighing about 10 pounds. The cones are not placed on the lines themselves because the cones would become glued to the roadway. The cones are placed as stated to keep cars from driving over the freshly painted lines. Vehicles driving on the lines present two problems. First, the lines get smeared. Second, the glue gets onto the vehicles. The only way to get the glue off the vehicle is to grind it off or burn it off.
The sign crew puts out “ROAD WORK AHEAD” signs approximately one mile before the start of the work zone, on both sides of the roadway. “WET PAINT” signs are placed where the painting begins and then at one mile intervals. The “WET PAINT” signs also get placed before the exit ramps off the parkway and by the entrance ramps onto the parkway. The signs are 4 feet by 4 feet, but they are set up on stands as a diamond and measure 5 feet from top to bottom. They are bright orange with a black border. The letters are printed capital letters and measure approximately 9 inches. The stands that the signs are attached to have the bottom edge of the sign 5 feet off the ground.
In examining the exit ramp used by claimant, his expert stated that the cones being set up as described set up a barrier for vehicles trying to exit the roadway at the highway speed of 55 miles per hour. The expert opined that the area should have included a sign indicating the exit was beginning and there should have been a speed limit reduction sign to 40 miles per hour. A description of the exit ramp was placed into evidence to aid the Court on the distances that existed at the accident location (claimant’s Exhibit 3). The entire exit ramp is approximately 500 feet long. At the location where it begins, to the first skip line is 240 feet. Over the course of the 240 feet, the deceleration lane leading to the exit ramp tapers wider until it reaches the width of 12 feet. The Court is not sure where it reaches the 12 feet but notes that by 150 feet the lane is already 10 feet wide. According to the expert, this is not enough room at 55 miles per hour for a vehicle to get over without crossing a couple of skip lines.
On cross-examination, Champagne agreed that the paint crew is a mobile operation within the meaning of NYSDOT’s definitions. The expert retreated from his direct testimony concerning the signs. On cross-examination, he stated “. . .in my opinion, the, the lack or, or signs really are irrelevant in the sense that what happened here is the cones that were put down on the skip line that created the problem. It wasn’t the signing that created the problem . . .” (T156). The witness also stated that it was good practice for NYSDOT to use the cones along the edge line, but not on the deceleration lane. While the placement of cones and signs along the roadway may give some motorists the idea that something was happening on the roadway, the expert opined that claimant may not have noticed them because they were irrelevant to his ultimate destination and he was so familiar with the roadway.
The Court notes that the paint crew started their day at the northern terminus of Sunken Meadow Parkway and proceeded south trying to work in two mile segments. There is no evidence that the paint crew picked up the signs and cones before getting to the two mile segment ending at the accident location. With cones dropped every 50 to 100 feet along the edge line, there would have been 264 to 528 cones along the edge from where claimant entered the parkway to the place of his accident.
In further support of his position, claimant has submitted the deposition testimony of Trooper William Connolly. Tpr. Connolly testified that he saw the cones at one of the exit ramps (not this particular ramp), saw some cones knocked over and decided that there must be a better way to paint the lines. Upon finding Michael Motti, the trooper asked if there wasn’t a better way to paint the lines because he felt it was hazardous. According to Tpr. Connolly, Motti seemed to hear the trooper and understood the need to change the procedure. However, Motti, during his deposition, told Tpr. Connolly there was no better way of painting the lines. Tpr. Connolly testified that he had seen this very same type of painting operation on previous occasions.
It is well established that the State is required to maintain its roads and highways in a reasonably safe condition to prevent foreseeable injury (Kissinger v State of New York, 126 AD2d 139). The State, however, is not an insurer of the safety of its roads (Tomassi v Town of Union, 46 NY2d 91). The fact that an accident occurs will not, however, create the presumption of liability (Tomassi v Town of Union, supra). Liability cannot attach unless the ascribed negligence of the State in maintaining a particular highway is a proximate cause of the accident (Hearn v State of New York, 157 AD2d 883, lv denied 75 NY2d 710). In addition, as to the drivers on the roadways, they must see what there is to be seen (Weigand v United Traction Co., 221 NY 39).
The Court finds that the paint crew conducted their painting operations on the accident date in accordance with the applicable rules in the Manual for Uniform Traffic Control Devices (hereinafter “manual”) for a mobile operation. In fact, the paint crew, as a normal course of business, goes beyond that which is required by the manual. The paint crew’s work is classified in the manual as “work vehicle work”. The traffic control considerations for such work states at 17 NYCRR 300.3(h)(1)(i):
Work vehicle work is accomplished by a work vehicle, or series of work vehicles, driving along a highway. It includes operations such as plowing, sanding, salting, pavement marking, mowing, mechanical street cleaning, and inspection of utilities from a moving vehicle. It does not include work that involves parking the work vehicle, or workers on foot in the roadway. No traffic control devices are mandatory at, or in advance of, a work vehicle doing work vehicle work. Such vehicles should, however, be equipped and operated pursuant to the Vehicle and Traffic Law. Where continuously moving highway work occupies a travel lane, a vehicle may be stationed in advance of the work vehicle to display appropriate warning traffic control devices.

Claimant argues that according to Motti the crew finished painting at 11:00 a.m. and it’s possible that the prewarning signs had been picked up prior to claimant’s accident. This would explain, according to claimant, why he did not see any signs and was surprised by the cones at the exit ramp. However, Motti testified that the crew never picked up the signs or cones prior to claimant’s accident (claimant’s Exhibit 5, pp. 43 - 44).
The sole proximate cause of the accident was claimant’s driving and inattentiveness to road conditions. Claimant was “left-laning it” down the parkway in an attempt to get down the roadway as quickly as possible. At a certain point, he “coasted” so the vehicle blocking his vision for the entire five mile trip could finally go by him. When claimant got into the right lane, he was still coasting and then moved into the deceleration lane still going in the mid-fifties. Claimant’s story is incredible on its face, especially in light of the fact that his car rolled five times.
The Court finds that the signs and cones described by the paint crew were present on the Sunken Meadow Parkway in the area claimant drove to get to his accident location. The expert explains claimant not seeing the signs and cones as being irrelevant to claimant’s familiarity with the roadway. The Court wonders then if claimant would have seen the signs and cones if he had been traversing this road for the first time. Claimant’s expert puts the burden of claimant’s inattentiveness onto the defendant.
Defendant has the burden of developing a balanced approach to maintaining its roadways, with minimal inconvenience to the motoring public, while trying to consider the safety of the crew and public while the task is accomplished. Motorists must share in this burden. It is the duty of each driver to be attentive to traffic conditions, road conditions, weather conditions and work being done. Motorists would not have to be told to not drive 55 mph on the Long Island Expressway in the middle of a snowstorm. A prudent motorist adjusts his speed based upon what conditions are perceived.
Claimant indicated that moving over from the left lane, into the deceleration lane and hitting the cones was instantaneous. When examining defendant’s Exhibits A1 - A26, it is clear that claimant moved his vehicle over at the last moment to gain access to the Northern State Parkway. If claimant had been less interested in “left-laning it” and more interested in his surroundings, then his accident could have been avoided. The argument that an awkward angle is created is without merit (defendant’s Exhibits A1 - A26).
Despite claimant’s self-inflated opinion of himself as a driver (T28) and calm in the face of stress (T29), there is no one to blame for this accident but claimant. Claimant was inattentive driving the roadway and was going at too great a speed for the conditions at the time. Claimant panicked when he hit the cones. Rather than step on the brakes to gain control over his vehicle, he attempted to steer his car in an awkward way that could not be handled by his vehicle. Claimant admitted that he made that mistake on cross-examination (T25).
Accordingly, the Court finds for the defendant and dismisses the Claim. The Clerk of the Court is directed to close the file. All motions not specifically ruled upon are denied.
Let judgment be entered accordingly.

December 29, 2006
Hauppauge, New York

Judge of the Court of Claims

[1].Quotes from the trial transcript will be denoted by a “T” followed by the page number.
[2].During the course of the trial, the ramp in question was interchangeably referred to as the exit ramp of the Sunken Meadow Parkway and the entrance ramp to the Northern State Parkway. The Court will refer to it as the exit ramp.
[3].No pun was intended.
[4]. The attenuator is a crash barrier.
[5].“Skip line” is the term for the white line dashes between the lanes.