New York State Court of Claims

New York State Court of Claims

DAUB v. STATE OF NEW YORK, #2007-018-571, Claim No. 110905, Motion No. M-72881


Claimant’s motion for summary judgment is denied. Claimant has failed to establish that there was a “unjustifiable delay” as a matter of law.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: EDWARD F. McARDLE, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 26, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings a timely motion for partial summary judgment (CPLR 3212[a]).

Defendant opposes the motion.

The claimant seeks damages from the defendant for its alleged negligence in the design, construction, regulation, and maintenance of the intersection of State Route 3 and County Route 4 in the Town of Palermo, County of Oswego. On February 21, 2005, Claimant proceeded to that intersection and stopped at the stop sign on County Route 4, an intersection through which she had driven many times. In her affidavit, Claimant describes that the speed limit on State Route 3 at this location is 55 miles per hour, and there is a hill just south of this intersection limiting the visibility of oncoming traffic. Claimant asserts that she looked to her left, then to her right, and then to her left again (the direction of the hill), and upon seeing no traffic, she proceeded into the intersection with the intention of going straight and continuing on County Route 4. While she was in the intersection, she was struck by a pickup truck driven by Timothy D. Ingersoll. The specifics of Claimant’s accident appear undisputed.

Claimant submits with this motion inter alia her affidavit, the affirmation of her attorney, excerpts of her deposition testimony, as well as excerpts from the deposition testimony of State Department of Transportation (hereinafter DOT) employees: Raymond McDougall, Ed Wilday, Eric Hansen, and George Doucette. She submits uncertified copies of police reports from other accidents at this location, and a DOT internal memorandum dated March 17, 2003.[1]

It is Claimant’s position that DOT determined prior to March 17, 2003, that a flashing red-yellow traffic signal should be placed at the intersection of State Route 3 and County Route 4 in the Town of Palermo (see Claimant’s Exhibit G). Claimant argues that one year and eleven months later, when Claimant was involved in an accident at that intersection, no traffic signal had been installed. The delay between the determination that a traffic signal should be installed at this intersection and the actual installation was, Claimant argues, unreasonable as a matter of law.

The excerpts from the depositions which Claimant has attached to her moving papers establish that Raymond McDougall, a Traffic Engineer with DOT was responsible for the use of traffic control devices on the 1,500 miles of State roadways in a six-county region. Mr.

McDougall testified that after he participated in the decision to install a traffic signal at that intersection he had no further professional duties with respect to the implementation of that decision.

The excerpts of Ed Wilday’s deposition indicate that he was a Design Supervisor with DOT. Mr. Wilday testified that funding for the contract work is obligated before the contract is let. Mr. Wilday also testified that he had no knowledge of any environmental, cultural, or historical issues involving the installation of the traffic signal at this location. He further testified that he had no knowledge of what transpired on this contract between March 17, 2003 and August 2004, and that normally he would not be involved in a project like this.

Portions of Eric Hansen’s deposition were also provided; he was involved with Mr. McDougall in the determination that a traffic signal was needed at this location. He could not testify in regard to soil borings or historical issues, and other than a personal visit to the intersection, he was not involved in any further activity. Mr. Hansen did indicate that the time frame between the initial determination as reflected in the March 17, 2003 memorandum (Exhibit G) and August 25, 2004,[2] would be a long time, unless there were other issues with the State Historical Preservation Organization, the contractor, or issues with right-of-way, or environmental problems. Mr. Hansen noted from his personal observation of the site that he had concerns with the “skew at which County Route 4 came into the intersection with Route 3,” the crest vertical curve to the west of the intersection, and was also concerned with the overhead wires for utilities that crossed the intersection (Exhibit K). If there were no problems a six-to-eight month time frame would be expected.

Excerpts of the deposition of George Doucette were also included. Mr. Doucette indicated that funding for the contract would be verified by the Planning and Program Management Group and monitored throughout the contract by the Design and Construction Offices. Although the memorandum of March 17, 2003 references a particular contract, Mr. Doucette could not say that contract letting, or actually reviewing and awarding a contract to a lowest bidder had occurred as of that date.

From these submissions, Claimant argues that the State identified a dangerous condition and arrived at a decision of what would be done to address the problem but then failed to implement that decision within a reasonable period of time prior to Claimant’s accident. As a result, Claimant argues she is entitled to partial summary judgment.

On a summary judgment motion, it is the burden of the party who brings the motion to establish their entitlement to judgment on the merits as a matter of law (see Winegrad v New York University Medical Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). Only then does the burden shift to the defendant to come forward with proof to show a genuine question of fact exists (Oswald v City of Niagara Falls, 13 AD3d 1155). The failure of the proponent to make a prima facie showing of its right to summary judgment requires denial of the motion regardless of the sufficiency of the opposing papers. (Winegrad, 64 NY2d at 853; Gstalder v State of New York, 240 AD2d 541, 542; Redemption Church of Christ of Apostolic Faith, Inc. v Williams, 84 AD2d 648, 649).

The State has a nondelegable duty to adequately design, construct, and maintain its highways in a reasonably safe condition for the traveling public (Friedman v State of New York, 67 NY2d 283). This includes the duty to design, install, operate, and maintain traffic control devices, to regulate, warn, and guide vehicular traffic at intersections under the State’s ownership and control (Vehicle and Traffic Law § 1681; Wood v State of New York, 112 AD2d 612). In the field of highway planning and design, the State is accorded a qualified immunity from liability for negligence arising out of its discretionary decisions (Weiss v Fote, 7 NY2d 579; Friedman, 67 NY2d at 271). Yet, the State has the duty to review its highway plans, and if made aware of a dangerous traffic condition to undertake the necessary actions to alleviate the danger (Id.). Once a remedial plan is formulated, the State has an obligation to implement the plan within a reasonable time, and “an unjustifiable delay in implementing the plan constitutes a breach of the [State’s] duty to the public just as surely as if it had totally failed to study the known condition in the first instance.” (Friedman, 67 NY2d at 286; Prendergast v Cosco, 4 AD3d 880, 881).

Here, Claimant has established that the State was aware that this intersection posed a danger for collisions and after review determined that a flashing red-yellow light should be installed. That decision was made, as evident from the March 17, 2003 memorandum, from the Traffic Engineering and Safety Group to the J. E. Fietz Design Group (Claimant’s Exhibit G). Thereafter, it is unclear what transpired until the light was finally installed. The excerpts from the depositions indicate that there were some concerns with this particular intersection, the angle at which County Route 4 met State Route 3, the hill to the south of the intersection, and overhead wires. Other problems that could have been encountered related to right-of-way issues, historical and environmental issues, and whether placement of a mast-type arm was necessary. The deposition excerpts do not rule out these potential problems, nor was it clear that these problems presented at this location. It is clear that the placement of this flashing light took a long time to install; yet, there is not sufficient proof before this Court to say, as a matter of law, the time frame was unreasonable because there are too many factors which may have warranted the extended time. For liability to be imposed, there must an “unjustifiable delay” and Claimant has failed to establish there was no justification as a matter of law (Friedman, 67 NY2d at 286; see also Sangirardi v State of New York, 205 AD2d 603, 604-605; Hough v State of New York, 203 AD2d 736, 738; Ames v City of New York, 177 AD2d 528, 530).

Claimant’s motion is DENIED.

September 26, 2007
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion.................................................................................................1

Affirmation of James B. Fleckenstein, Esquire, in support, with exhibits

attached thereto........................................................................................2

Claimant’s Affidavit, in support...........................................................................3

Claimant’s Memorandum of Law dated January 24, 2007....................................4

Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General

in opposition with exhibits attached thereto...............................................5

Defendant’s Memorandum of Law dated March 28, 2007.....................................6

Responding Affirmation of James B. Fleckenstein, Esquire, in support................7

[1].These submissions are not admissible in form, yet, Defendant has not disputed the accuracy or reliability of the memorandum. Although the Court has not considered the specific police reports submitted, there appears to be no dispute that there was prior accident history at this location (see Muniz v Bacchus, 282 AD2d 387).
[2]. There is no indication from the deposition excerpt what this August 25, 2004, date involved, however, Claimant’s attorney, in his affirmation, states that this is the date the “preliminary design package was transmitted” [Fleckenstein affirmation ¶12]).