New York State Court of Claims

New York State Court of Claims

ROMM v. THE STATE OF NEW YORK, #2007-029-030, Claim No. 107267


Claim alleging negligent maintenance of Palisades Interstate Parkway drainage basin is dismissed for failure of proof with respect to both negligence and proximate cause.

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:
AHMUTY, DEMERS & McMANUSBy: Emilio F. Grillo, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Rachel Zaffrann, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 14, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from a one-vehicle accident on the Palisades Interstate Parkway on November 11, 2002 in which claimant, a 27-year-old schoolteacher, lost control of her vehicle, allegedly the result of contacting a negligently maintained drainage grating, and collided with trees on the side of the road.

Claimant [1] testified she was on her way home from a shopping trip, intending to leave the Parkway at Exit 13, driving in the left lane at about 55 m.p.h. The Parkway, which claimant stated she drove on almost a daily basis, contains two northbound lanes. According to claimant:
“I was driving in the left-hand lane and I was just driving and I struck – I was going over a drain and I struck the drain, and as soon as I did, my car spun out of control. . . . My car started going to the right, into the right-hand lane of traffic. And so I was trying to steer my car, but I could not steer my car. . . . ” [2]

Claimant alleged her vehicle began to spin and that at some point she was facing the opposite (southbound) direction, seeing trees outside of her driver’s side window. She could not recall if she applied her brakes or accelerator during these events. Her vehicle did not stop until it struck a group of trees off the northbound shoulder. She stated it was a matter of seconds before her vehicle struck the trees, although she was not sure how many seconds. Later, she said that after her vehicle spun, it was facing south “maybe a couple of seconds” [3] before it struck the trees.

Claimant was shown three photographs [4] which she identified as depicting the drainage grate that she struck. She testified that she saw the grate before she struck it, but did not make any attempt to avoid it. Although she stated she had seen and driven over the subject grate before, she never had a problem with it.

The three photographs were taken by claimant’s husband, Joseph Goldstein. He testified that while hospitalized, his wife told him that she had hit a drainage ditch between Exits 12 and 13 in the left northbound lane of the Parkway and that the ditch was located in the travel lane, not on the shoulder. Goldstein stated that he lives near Exit 13 and every time he drove on the Parkway he would look for the ditch. There was only one in the left lane in that area. He received a copy of the police report about three weeks after the accident, and two or three days later, took the three photographs that were received in evidence.

On cross-examination, claimant was shown a copy of a DMV Accident Report (MV-104) dated November 25, 2002, fourteen days after the accident, with her signature at the bottom. The report describes the accident, in two separate places on the form, in almost identical language:
“Vehicle going north on Palisades Interstate Parkway. Wet, slick road. Car hydroplaned on wet surface skid around going south. Went into embankment [and] hit a tree.” [5]

Claimant stated she did not complete the form, her mother did, and she did not tell her mother what to write. She also stated she did not read the form before she signed it and that she did not agree with the description of the accident on the form. She claimed she was in the hospital when she signed the form and was heavily medicated, post-surgery. It was her understanding that the report was submitted to her insurance company, and was prepared by her mother for that purpose, but she never at any point contacted anyone at the insurance company concerning the contents of the report. She denied that her vehicle ever hydroplaned. Her trial testimony was that it had rained earlier in the day and the road was “a little bit wet.” [6] She stated it was misting at the time but she could not recall if she had her windshield wipers on.

Claimant’s mother, Cynthia Romm Brender, confirmed that it was she who wrote all of the information on the accident report and presented it to her daughter for her signature, in the hospital. She stated she just made up the part about the vehicle hydroplaning on a wet roadway because she had heard that the road was wet and that was the only thing she could think of to write. The insurance company was hounding her, stating they would not cover any expenses until they received an accident report. She stated her daughter was in so much pain during the two-week period between the accident and when she completed the accident report that they were unable to have any conversations about what happened, so she just made it up.

Damaris Abrams-Jones, an investigator with the State Police, was on road patrol duty on the Parkway on the date in question. She stated she recalled the accident “vaguely,” [7] specifically remembering approaching from the south and seeing claimant’s vehicle facing south on the northbound side, wedged against a tree. She wrote in her notes [8] that there were two witnesses to the accident – James Freiband and Pat Bowser. She did not memorialize, nor could she recollect at trial, what the witnesses told her. She testified that she assisted in taking measurements at the scene, specifically a measurement of the distance from a drainage grate to claimant’s vehicle, but her involvement was simply to hold one end of the tape, the end by the vehicle, and she did not recall what any measurements were. She testified that the drainage grate was used as a measuring point because it was a fixed point on the roadway that would not change, and the sole purpose of measuring the distance of the vehicle from the grate was to identify exactly where the vehicle came to rest.

Investigator Abrams-Jones recalled that photographs were taken at the accident scene but they could not be developed, and that at some later time she returned to the scene and took photographs at the request of the Attorney General’s Office.

James Freiband testified pursuant to subpoena by both parties. He recalled driving northbound on the Parkway on the date in question and seeing claimant’s vehicle about 1,000 to 1,500 feet in front of him, between Exits 12 and 13. He was in the right lane and the other car was in the left lane. He stated it was a very nice day, clear with no precipitation. He saw the following:
“When I really noticed it was making some radical motions in the left lane, appeared to sort of bounce or, you know, move within the lane quickly, erratically, and then I saw it veer radically to the right. Two wheels came off the ground. I watched the car as it crossed the parkway, passing over the right lane, down into the ditch. It disappeared for a couple of seconds. And then when I came upon that vehicle, I pulled over and I saw it as I pulled over onto the shoulder, the right shoulder.” [9]

Freiband testified he was driving about 60 to 65 m.p.h. and that he had been behind claimant’s vehicle for about 10 minutes, during which he neither passed any vehicles nor did any vehicles pass him. After he pulled off the road, he called 911 and ran to the car to assist the driver. He stated the State Police officer appeared on the scene very quickly after that.

Freiband indicated on cross-examination that at no point did he see claimant’s vehicle make a U-turn and drive southbound on the Parkway. He stated that the movement of the car while in the left lane was left to right, not fishtailing and not up and down.

Patricia Bowser, the other witness to the accident, testified pursuant to subpoena from the defendant. She stated she was driving northbound on the Parkway between Exits 12 and 13, in the right lane, when a car passed her on the left and then “started to cut in front” 1[0] of her, then “went back into the left-hand lane,” 1[1] then “swerved and then I would say about three – about four fishtails, and then I thought it was going to straighten out,” 1[2] but instead “it shot across, started heading towards me head on, went off to the side of the road onto the grass, and it slid sideways and actually flew into a tree, bounced out and went back again.” 1[3] She estimated she was driving 60 to 65 m.p.h as the car started to pass her, and stated that the car was going “really fast because you get that wind factor when someone goes much faster.” 1[4]

During cross-examination, Ms. Bowser clarified what happened when the other car was “heading towards” her:
“It’s facing me at that point, and when you say coming at me, it didn’t travel a distance towards me. It was part of going up on the other side . . . But yes, it’s pointing at me . . . facing me, let’s say.” 1[5]
Continuing northbound but at a slower speed, Ms. Bowser had not yet passed the other car when she saw it hit the trees. She agreed that the car moved in a southbound direction for a short distance,
“but not that far . . . It’s facing me, goes onto the grass, still facing south, but did not proceed a long distance. It immediately flew sideways . . . It flew sideways. So to me, that’s going east . . . not south . . . The car is facing south. Flew east.” 1[6]

Robert Falk, a DOT employee since 1973, is the Resident Engineer for Rockland County, responsible for overseeing all maintenance activities on State roads in the county, supervising a staff of about 40 workers. He identified a Supervisor’s Daily Report reflecting work performed on the Parkway on May 21, 2002 under the supervision of Highway Maintenance Supervisors Matthew Maroney and Jeffrey Strike. 1[7] The document reflects that Maroney’s crew performed three tasks that day: repair of a drainage basin between Exits 12 and 13 on the northbound Parkway, removal of a dead deer and manual sweeping. The second page of the report indicates that three members of Strike’s crew assisted two members of Maroney’s crew on the repair of the drainage basin, which was identified as Job # 1. Five bags of cold patch were utilized in the work on the drainage basin. Falk testified that roadway repairs can be made using either hot asphalt or cold patch, depending on the time of the year and the size and nature of the job. Generally, a “large scale operation” involving repair of “numerous holes” would warrant the use of hot asphalt, but repair of an “isolated hole” would normally involve use of cold patch. Asked by claimant’s counsel if cold patch was considered a permanent or temporary repair, Falk stated it could be either: “We’ve put cold patch in potholes that have stayed in place for years.” 1[8] Unlike cold patch, which comes in 40-pound bags, hot asphalt comes fresh from asphalt plants and requires a minimum order of one ton, which is loaded on a truck and which, if not used before it cools, becomes useless.

Falk testified that he was notified in February 2003 that a claim had been filed arising from the subject accident. He drove out to see if he could find the accident scene, guided by the notations on the police report 1[9] that indicated Mile Marker 1137, half a mile south of Exit 13. He stated the police report indicated that claimant’s vehicle had struck a drainage ditch 2[0] so that was what he was looking for. He found a basin just south of Mile Marker 1137, shown on Exhibit 25, one of the photographs taken by claimant’s husband. Driving a Chevrolet Cavalier, he drove over the grating, which he described as “somewhat depressed below the level of the pavement,” 2[1] and then drove back around, pulled off the road and watched as several other cars drove over it. Falk then drove over it a second time. He then went back to his office and wrote a memorandum stating the following:
“The catch basin at the site of the accident was repaired/rebuilt on May 21, 2002. The concrete block had deteriorated and it collapsed and the frame and grate sunk. Sometime between when we repaired it and the accident, it must have settled again. I searched our records and could not find any calls or complaints about it, so I do not know when it failed again.” 2[2]

Falk indicated that his information as to the condition of the grate prior to the repair was gleaned from conversations he had with Maroney and another maintenance supervisor.

Falk indicated that he had to keep up with the speed of traffic – which he described as pretty fast – on the two times he drove over the grate. Asked to elaborate by defense counsel on the condition of the grate, Falk stated:
“I drove over the grate, then I returned and I pulled off the shoulder and waited for a while to watch other vehicles drive over the grate. And from my ride and watching other vehicles, I mean, it was obviously somewhat depressed, but the grate was pretty stable, there was no rock. Many times when a grate – frame and grate will settle, it will rock back and forth and there was no indication that that was happening. So I mean, it was in a slightly depressed state, but I didn’t have any trouble traversing it and I watched a number of vehicles go over it, and they did not seem to have a problem doing it either.” 2[3]

When Maintenance Supervisor Maroney, who was actually involved in the May 21, 2002 repair, was shown the three photographs taken by claimant’s husband, he was not sure if that was the drain he repaired, because “there’s so many drains between [Exits] 12 and 13.” 2[4] Asked specifically if there were other drains in that area that were in the left travel lane, as opposed to on the shoulder, he was unsure. Maroney agreed with Falk that hot asphalt was not necessarily superior to cold patch for repairing potholes and drains and that he had seen cold patch repairs last as long as five or six years. He agreed with claimant’s counsel that concrete repairs last longer than hot asphalt or cold patch, but he asserted that concrete was never used for repairs on the road surface, as opposed to on shoulders, because it takes too long to dry and necessitates closing the road for a period of time. This is impractical for a heavily traveled road such as the Palisades Parkway.

State Police Investigator Charles Sands, who at the time was a uniformed trooper assigned to patrol the Parkway, assisted with the investigation of the subject accident. He identified a page from the police accident report that he stated was in his handwriting and contained measurements taken at the scene, but he could not identify “what or where these measurements begin or actually end.” 2[5] His testimony was essentially limited to identifying himself as the author of that page of the police report. Nevertheless, it was clear that one of the measurements recorded by the police – 96 feet – referred to the distance between the drainage grate shown on the photographs taken by claimant’s husband and the spot where claimant’s car was found against the trees adjacent to the northbound shoulder. There was no dispute between the parties as to this fact, although the police records recorded only the distance between the drain and the vehicle, not the direction.

Nicholas Pucino, an engineer retained by defendant in connection with this litigation, testified that he initially went to the site on April 2003 to try to identify the catch basin allegedly involved in the accident and to find the trees struck by claimant’s vehicle. In addition to taking measurements of the basin, he looked for signs of vehicle impact among the trees 96 feet north of the basin shown on Exhibits 25, 26 and 27, and farther north. He found no evidence of impact. He returned to the scene on June 3, 2003 and, “on a whim,” 2[6] started looking at the trees south of the basin. He also telephoned Damaris Abrams-Jones, the investigating officer, and she joined him at the scene. About 96 feet south of the basin, he found two trees with clear evidence of vehicle impact that matched photographs taken of the vehicle at the accident scene. He also found claimant’s license plate and parts of her car. It was clear that these were the trees claimant struck, and the court noted at trial that such should be considered a finding of fact. The contention that the trees struck by claimant were 96 feet south of the drainage basin shown on Exhibits 25, 26 and 27 were the basis of claimant’s theory of how the accident occurred, as expressed in the testimony of her expert witness.

Alan T. Gonseth, an engineer, testified he graduated from Clarkson and Yale Universities, worked for the Port Authority from 1956 through 1990. He then left the Port Authority and set up his own consulting firm, Gonseth Associates. He described the nature of his firm’s business as “[a]ccident reconstruction expert witness.” 2[7] He was retained on claimant’s behalf in 2004 and visited the accident scene on August 25, 2004, drove around and took measurements and photographs.

Gonseth’s theory of how this accident happened was as follows:
“[I]n a situation like this where a vehicle front left wheel would hit a depression and jar the steering wheel of the vehicle, the driver is surprised to a great degree, and their reaction time goes up. And at that point in time with a vehicle going 55 or 60 miles an hour, which is 85 or 90 feet per second, before they can react, the vehicle has gone down in the same direction. But because of the jarring of the steering wheel, which would tend to make the steering wheel go to [the] left because of the left front wheel being dropped, the driver would automatically respond by steering right. And on a wet pavement, then the vehicle could very easily go into a yawing, a sideslipping and spin around . . . . Simultaneously, the surprised driver may also at that point in time reach for the brake and try to stop and inadvertently hit the gas pedal, which would then accelerate the vehicle at similar speed and by the time they recognize the problem that has been created and reach for the brake, they would be going in the opposite direction. And that is consistent with the Romm vehicle ending up 96 feet farther south from the catch basin that it hit.” 2[8]

He stated this theory was “not only possible, but plausible.” 2[9]

Gonseth also testified concerning the condition of the drainage basin shown on Exhibits 25, 26 and 27. He stated that the photographs showed that the grate was not flush with the pavement by several inches and opined that it would present a hazard to motorists. He also contended that cold patch was usually used only for temporary patches and that hot asphalt or concrete, both of which provide a more sturdy and long-term repair, would have been preferable to the cold patch that was used to repair the basin in May, 2000. He stated that “[i]f it was repaired properly, the grate would not have dropped the four or five inches that it dropped between May and November.” 3[0]

The crucial factual issue at this trial was what caused claimant to lose control of her vehicle as she drove northbound, specifically whether she struck the drainage grate shown on the three photographic exhibits and ended up off the road, striking trees 96 feet south of the basin. There was no question as to what trees claimant’s vehicle struck, nor was there any question that the trees were 96 feet south of the drainage basin the State Police used as a measuring point to identify the location where claimant’s vehicle came to a stop. Gonseth indicated that his analysis was based on the assumption that claimant’s vehicle had struck the drainage grate shown on the three photographs, as opposed to a different grate. He stated “[s]he said she hit something, and the police report – she wasn’t sure what she hit, if I recall it correctly. And the police report indicated she hit a drainage grate.” 3[1] It was clear that he relied heavily on the deposition testimony of Investigator Abrams-Jones in reaching this conclusion. 3[2]

Gonseth testified that his view of the accident was that claimant traveled at least 85 to 90 feet to the north within one second after striking the grate, based on a 55 m.p.h. speed, then spun around and, after claimant applied the accelerator, traveled at least 181 feet to the south (85 feet back to the grate and an additional 96 feet to the trees) before striking the trees. He allowed that she could have gone more than 85 feet to the north and it could have taken more than one second. He assumed that claimant did not apply her brakes and was still going 55 m.p.h. when it spun and began moving southbound. His testimony was that it took approximately two seconds for claimant’s vehicle to travel at least 81 feet northbound 3[3] and then spin around and travel at least 177 feet southbound to the trees. He calculated that 177 feet in one second equated to a speed of between 110 and 115 m.p.h., and noted that 177 feet was the minimum distance claimant’s vehicle could have traveled under his scenario. He acknowledged that there was no evidence that claimant applied the accelerator, other than his theoretical reconstruction of how it could have been possible for claimant to have ended up 96 feet south of a grating that she allegedly struck while driving northbound.

With respect to the drainage grate at issue, Gonseth stated he estimated that it was five inches below the road surface based on looking at the photographs. Although he testified on direct examination that this alleged distance violated State standards, he conceded on cross that he was unaware of any such specific standards.

Richard Hermance, a former police officer and engineer who is accredited by the Accreditation Commission for Traffic Accident Reconstruction, testified for the defendant. Not surprisingly, he disagreed with Gonseth’s analysis of the subject accident. He asserted that the photographs showing claimant’s vehicle against the trees, and the damage to the vehicle, were inconsistent with any theory that it approached the trees from the north and consistent with a direct approach “somewhat to the northeast.” 3[4] He noted that the damage was “right smack in the middle of the driver’s side . . . So, there is no way that this car could come in, hit like that and then rotate around the tree. It just – it just doesn’t happen.” 3[5] He also noted that the photographs showed a mileage marker to the north of the resting place that would have been knocked down by the vehicle had it approached from that direction and that one of the photographs showed tire marks that were inconsistent with an approach from the north. 3[6] His crush analysis, which involved estimation of the extent of the vehicle’s damage based on the photographs, indicated that the vehicle was traveling about 45 m.p.h. upon impact with the trees. Hermance noted that this figure had a ± 5 m.p.h. margin of error, as opposed to a ± 2 m.p.h. margin of error that he could have obtained had he been able to actually measure the damage rather than rely on photographs.

With respect to Gonseth’s theory, Hermance testified that, based on a 55 m.p.h. speed and a one second perception/reaction time and full braking, it would have taken the vehicle 332 feet to come to a stop. Assuming the vehicle spun out on a wet road and then slid to a stop without braking, it would go for about 467 feet before it stopped, and if it continued straight ahead, without braking or sliding, it could travel as much as 1/4 mile without stopping. He stated that a vehicle traveling northbound would have to stop that movement before traveling southbound, a self-evident statement, and asserted that such would take six seconds. Hermance maintained that Gonseth’s theory – that claimant’s vehicle proceeded northbound for about 87 feet and then began moving southbound, was totally impossible. Even factoring in a zero perception/reaction time (i.e., assuming the brakes were applied full force the moment the vehicle hit the drainage grate), it would take 252 feet for the vehicle to halt its northbound progress. He stated the only way for a vehicle moving at 55 m.p.h. to stop in 87 feet would be for it to strike something that made it stop.

Asked by claimant’s counsel whether it was possible for a vehicle to be spinning out of control, moving northbound, and then regain its grip on the road surface due to the driver stepping on the accelerator, and then begin moving southbound, he responded “[n]o way. That’s like crazy.” 3[7] He then allowed that the only way for claimant’s vehicle to have been driven southbound was if it had gone 300 to 400 feet north after losing control, come to a stop, and then come back southbound after the accelerator was depressed. But, he stated that such a scenario would take 10 to 15 seconds to develop and that the damage to the car and the trees shown on the photographs was not consistent with such a theory, because of the approach angle indicated by the damage. He testified that it would have taken seven or eight seconds for the vehicle to stop and then it would have to accelerate another seven or eight seconds going southbound, and that it was “hard to believe that somebody would accelerate back for seven or eight seconds going the wrong way.” 3[8] He conceded it was “possible” that a driver could panic and keep her foot on the accelerator for seven or eight seconds, driving the wrong way down a highway after striking a drainage grate and losing control, but pointed out that, in such a circumstance, the drainage grate would have nothing to do with the vehicle subsequently leaving the roadway after driving in the wrong direction for that period of time.

Nicolas Pucino, whose testimony as to the identification of the trees struck by claimant has already been referenced herein, also identified another drainage basin, just off the left northbound lane, 300 feet south of the subject trees. He testified concerning critical speed analysis he performed, aimed at ascertaining the minimal distance claimant’s vehicle could have traveled before striking the subject trees. Using the most conservative figures – i.e., those that would yield the shortest distance between the struck trees and the point on the road where the vehicle lost control – of 50 m.p.h. and zero perception/reaction time, he computed a minimum travel distance of 174 feet. Adding a one-second perception/reaction time yields a minimal travel distance of 250 feet.

Pucino also testified that he actually measured the drainage grating shown on Exhibits 25, 26 and 27 before any repair work was done subsequent to claimant’s accident, and found that it was, at its deepest point, two inches below the road surface, not the five inches estimated by claimant’s expert based on the photographs. He opined that such a drop, while not that uncommon and not sufficient to cause loss of control of a vehicle, could cause a motorist to overreact, resulting in a loss of control, and agreed that it should be repaired for that reason.

Analysis by the Court starts with the familiar proposition that the State of New York is not the insurer of the safety of those who travel its highways but rather is governed by the duty of reasonable care. Thus, liability for an accident on a State highway requires proof of both negligence, i.e., a breach of the duty of reasonable care, and proximate cause (Stuart-Bullock v State of New York, 38 AD2d 626 [3d Dept 1971]). As in every negligence case where the sequence of events leading to a claimant’s injury is at issue, claimant’s burden of proof here was not to exclude all possibilities other than those implicating negligence on the part of defendant, but rather to prove that it is more likely or more reasonable that the alleged injury was caused by defendant’s negligence than by other factors (Gayle v City of New York, 92 NY2d 936 [1998]; Dunn v City of New York, 301 AD2d 493 [2d Dept 2003]). Where the relevant facts could support several possible theories of causation, and it is “just as reasonable and probable that the injury was the result of one cause as the other,” the burden of proving negligence is not met (Bernstein v City of New York, 69 NY2d 1020, 1021 [1987]).

The court finds that the proof in this case was insufficient both as to negligence and proximate cause. Although Gonseth opined that cold patch should not have been used in the May, 2002 repair of the drainage basin that claimant alleged was the cause of her accident, and indeed that the use of cold patch was never proper except for temporary repairs, all of defendant’s witnesses disagreed with those assertions. Claimant failed to submit any engineering or maintenance standards or principles in support of her claim that the basin was repaired in a negligent manner. There was no proof as to what was wrong with the basin that necessitated repair, what specifically was done, or what allegedly should have been done, other than the general assertion that hot asphalt and concrete are better for road repairs than cold patch because they last longer. It was simply assumed that the problem that required repair in May, 2002 had recurred by November, 2002 and that such would not have occurred had hot asphalt or concrete been used in the repair. There was no proof submitted in support of either of these assertions. There was also no proof that a drainage basin depressed two inches below a highway surface violated highway design or maintenance guidelines or standards.

Additionally, the court is unable to draw the inference – crucial to claimant’s case – that the drainage basin repaired in May, 2002 caused claimant to lose control of her vehicle and leave the Parkway. Defendant’s expert testimony was much more convincing than that submitted by claimant as to the likely sequence of events that resulted in claimant’s vehicle leaving the travel lanes of the Parkway and striking the trees. Gonseth’s theory of causation started with the assumption that claimant struck the grating photographed by claimant’s husband, left the roadway and struck trees located 96 feet in the opposite direction from the direction that she was traveling. He then constructed a scenario that he considered “plausible” as to how such could have occurred. In addition to Hermance’s explanation of why it was extremely unlikely for the accident to have occurred in the manner alleged by Gonseth, it was clear that Gonseth’s starting point was reached based on flawed conclusions. Claimant’s husband’s identification of the basin shown on the photographic exhibits was based on conversations with claimant during the period immediately after the accident, when she was so incapacitated by her injuries and treatment that she signed an accident report that contained a description of the accident wholly at odds with that presented at trial. While the court accepts that she signed the report without reading it and that it did not accurately reflect her recollection of what happened, under these circumstances, the court cannot conclude that she was able to provide her husband with any sort of accurate identification of where on the road she first lost control. The police testimony, both trial and deposition, confirms that there were a number of drainage grates that claimant could have contacted before losing control, and the use of the one shown on the photographic exhibits as a measuring point to identify the vehicle’s resting place did not give rise to any inference that that grating was involved in the accident. It was clear that the investigating officers did not know what caused claimant to lose control of her vehicle. Moreover, Gonseth’s theory was inconsistent with the testimony of both of the eyewitnesses, neither of whom saw her vehicle travel southbound on the Parkway, and completely incompatible with the testimony of Ms. Bowser, who was next to claimant when she first lost control, continued to drive northbound as claimant’s vehicle spun and left the roadway and saw claimant’s vehicle strike the trees, all of which occurred in front of her rather than 96 feet behind her.

Thus, claimant’s proof on the question of causation did not even reach the point of being “just as reasonable and probable” as that of defendant (Bernstein v City of New York, 69 NY2d 1020, 1021 [1987]). The court finds that defendant’s theory – that claimant’s vehicle lost control after she struck a different grating, south of where it struck the trees – is much more likely to represent what actually occurred than claimant’s “plausible” if somewhat fanciful theory.

Accordingly, the court having found that claimant failed to establish either negligence or proximate cause, the Clerk of the Court is directed to enter judgment of dismissal. All motions not otherwise decided herein are denied.

September 14, 2007
White Plains, New York

Judge of the Court of Claims

[1].Claimant has married since the filing of the claim and is now known as Lauren Goldstein.
[2].Vol I, pp 22, 23
[3].Vol. I, p 103.
[4].Exhibits 25, 26 and 27.
[5].Exhibit B.
[6].Vol I, p 76.
[7].Vol I, p 157.
[8].Exhibit 3.
[9].Vol II, p 500.
1[0].Vol IV, p 916.
[1]1.Id., p 923.
1[2].Id., p 918.
1[3].Id., p 917.
1[4].Id., p 918.
1[5].Id., pp 958-959.
1[6].Id., pp 974, 976, 977.
1[7].Exhibit 1.
1[8].Vol I, p 278.
1[9].Exhibit 3.
2[0].That information had been redacted from the copy received in evidence.
2[1].Vol. 1, p 305.
[2]2.Exhibit 23.
2[3].Vol. II, pp 432-433.
2[4].Vol. III, p 803.
2[5].Vol. III, p 740.
2[6].Vol. V, p 1264.
2[7].Vol. II, p 513.
2[8].Id., p 535.
2[9].Id., p 558.
3[0].Id., pp 552-553.
3[1].Id., p 579.
3[2].Court Exhibit 3. Investigator Abrams-Jones testified at the deposition that there were many drainage grates in the area, that she did not witness the accident and simply made assumptions and conclusions based on what witnesses had told her, and that she did not know which grate, if any, was struck by claimant.
[3]3.By this point in the questioning, counsel and the witness were utilizing 81 feet rather than 85 feet, an inconsequential difference.
3[4].Vol IV, p 1010.
3[5].Id., p 1026.
3[6].This photograph, defendant’s Exhibit N for identification, was referred to by the witness subject to authentication by Pucino, who took the photo. The exhibit was never admitted into evidence, something that was apparently overlooked by counsel; nevertheless, both counsel extensively questioned Hermance about what was shown on the photograph.
3[7].Vol IV, p 1143.
3[8].Id., p 1211.