This is a timely filed claim by Leah Savino, as Administrator of the Estate of
Vincent Savino (hereinafter “decedent”), Deceased, and Joshua
Savino, infant, by His Parent and Natural Guardian, Leah Savino (hereinafter
“claimant”). The claim is for negligence by the State of New York
(hereinafter “defendant”) on February 1, 2004. On April 29, 2008, a
bifurcated trial was held to determine liability.
Claimant called Michael Salerno to testify. Mr. Salerno and decedent were long
time friends. Mr. Salerno was with decedent on the date of the accident. The
friends met in the parking lot of an office building located on Jericho
Turnpike (State Route 25)
. The office
building was located on the north side of Jericho Turnpike, adjacent to the
westbound lanes of travel. Mr. Salerno and decedent decided to take advantage
of a recent snowfall and have fun riding their all terrain vehicles (hereinafter
ATVs) at an aquatic preserve in Woodbury, New York.
The witness stated the aquatic preserve was east of where he and decedent were
located. The witness stated that if a person were traveling west, then the
aquatic preserve would be first, then The Hamlet (condominium complex) and
lastly, the office building where the witness met the decedent. All of these
properties are on the north side of Jericho Turnpike and they are all bordered
by a golf course at the rear of their property. Normally, the witness and
decedent would cut through a nearby golf course. However, due to the heavy
snowfall, the short cut was impossible to take. The two men then exited the
parking lot of the office building making a left onto the westbound shoulder of
Jericho Turnpike heading east.
The men then
passed The Hamlet and went to the preserve.
After approximately three hours in the preserve, the men returned to the office
building on Jericho Turnpike, to refuel the ATVs. When the two men completed
refueling, they re-entered the westbound shoulder of Jericho Turnpike heading
eastbound. Their plan was to return to the preserve and continue riding.
Decedent entered the shoulder first, followed by the witness. The men were
traveling in single file. Mr. Salerno testified he was approximately 50 feet
behind decedent. He stated the snow was piled “pretty high” - -
about 4 feet high snowbanks. The witness guessed that decedent was traveling at
approximately 40 m.p.h. when the accident occurred. As decedent approached The
Hamlet, a car came out and decedent and the car collided. The front of
decedent’s ATV hit the front right of the car. Decedent flew over the
handlebars of his ATV and over the car, landing on the other side of the car.
On cross-examination, the witness testified that the snowbanks along the rode
were uniform, except at the corners of The Hamlet entrance. At the
entrance/exit, the snow was piled higher. Mr. Salerno was unable to estimate
the speed of the vehicle. He did not see the vehicle until it “popped
out” and was involved in the accident.
Claimant called Anita Malen. Ms. Malen was the driver of the vehicle that was
involved in the accident with decedent. Ms. Malen lived in The Hamlet. The
Hamlet community has one road which accesses Jericho Turnpike. The road is
Foxwood Drive, which ends at Jericho Turnpike, forming a T-intersection. The
witness said the accident happened at approximately 4:00 p.m. Ms. Malen was
coming from her home to go pick up her children. The witness identified two
photos (Exhibits 21 and 22) which depict the ingress/egress from Foxwood Drive
and Jericho Turnpike. In addition, Ms. Malen identified the snow conditions
that existed at the intersection of Foxwood Drive and Jericho Turnpike in
Exhibits 8 and 16.
The witness testified that she stopped at the stop indicated in Exhibit 21, and
then was pulling onto Jericho Turnpike to make a right. The witness said her
intention was to go across the three westbound lanes to enter a fourth lane to
make a turn at the light. The witness said she did not observe anything to her
right when she began to move and the traffic to her left was clear. Ms.
Malen’s vehicle had not gone far from where she stopped when she felt the
impact of decedent with her vehicle. During her deposition, the witness had
guessed that she traveled about 10 feet when there was an impact. Ms. Malen
never saw decedent prior to the impact.
On cross-examination, the witness testified she did not recall looking to the
right. She further stated that she did not expect a vehicle coming from her
right because the lanes on this side of Jericho Turnpike are for westbound
traffic. In other words, the traffic would be going from left to right.
Brian Moore of the NYS Department of Transportation (hereinafter
“DOT”) was called by claimant. At the time of the accident, Mr.
Moore was a highway maintenance supervisor. Mr. Moore supervised the area that
included the accident site at the time of the accident. The witness stated that
the median strip does not accommodate snow during snow removal for two reasons.
First, the strip is not large enough. Second, snow piled in the median would
create a sight distance problem for cars making left turns. When plowing snow
at an intersection like Foxwood Drive and Jericho Turnpike, the consideration of
sight distance is not equal at the corners. Due to Jericho Turnpike being a
divided highway at this location, the only concern would be to give drivers the
opportunity to look to their left - the direction from which traffic is coming.
There is not as much concern with the sight distance to the right because
vehicles are not coming from that direction.
The snowplow plows from left to right. This moves the snow toward the curb of
the road and away from the median. There is no height limitation in piling the
snow. The snow is thrown by the plows in a uniform manner. The plows do not
pile snow in uneven ways. When the plows drive across an intersection, they
just drive straight across. In other words, the plows do not “neaten
up” the intersecting roads. When snow gets piled more than 4 to 5 feet
along the side of the road it becomes impossible for the plows to throw the snow
off the roadway. The snowplow will use their wing plows, set at a higher level,
to clear the snow piled on the side of the roadway. This process is known as
Claimant called John Rosado, the person employed by The Hamlet and responsible
for plowing Foxwood Drive. According to the witness, he uses a pickup truck
with a plow on the front to clear Foxwood Drive. He begins by plowing toward
Jericho Turnpike and stops about twenty feet from Jericho Turnpike. Mr. Rosado
then backs out onto Jericho Turnpike and plows inward. The witness testified
that he starts plowing closest to the center of Foxwood Drive because there is a
median. He then pushes the snow outward toward the edge of Foxwood Drive. Mr.
Rosado denied making the piles of snow at the intersection of Foxwood Drive and
Claimant called Steven Schneider, an engineer, as an expert. Mr. Schneider
opined that the mound of snow on the west side of the intersection of Foxwood
Drive and Jericho Turnpike was unsafe because it blocked the sightline to the
west for cars coming out of Foxwood Drive. Mr. Schneider testified it was his
opinion the State was negligent for not benching the mounds of snow at the
intersection of Foxwood Drive and Jericho Turnpike.
Michael Remotar testified on behalf of the defendant. Mr. Remotar works for
DOT and plowed Jericho Turnpike in the area of Foxwood Drive on the date of the
accident. The witness examined the area in Exhibits E and
Mr. Remotar indicated the snow at the
corner of Foxwood Drive and Jericho Turnpike was higher than the snow along the
rest of Jericho Turnpike. The witness testified that he did not create the
piles of snow in Exhibit E at the intersection of Foxwood Drive and Jericho
Defendant called Duane Amsler as its engineer expert. Mr. Amsler opined that
there was no problem with defendant’s plowing of Jericho Turnpike in the
location of Foxwood Drive. The expert testified that the snowbank on the west
side of the intersection of Foxwood Drive and Jericho Turnpike did not present a
problem because it would be “almost inconceivable” that anything
would be opposing traffic on a one-way stretch of
The witness further opined that the
NYS guidelines for snow and ice control (Exhibit 19) does not give special
consideration to the type of intersection involved in this matter. In
discussing intersections (§5.1303), the guideline is referring to the
intersections of State roadways.
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).
In considering the evidence and the expert testimony, the Court does not find
that the snowbank at the western side of the intersection of Foxwood Drive and
Jericho Turnpike was a dangerous condition. Jericho Turnpike, due to the
presence of a median, was essentially a one-way road at the intersection with
Foxwood Drive. A driver would have no expectation of a vehicle coming from the
opposite direction of the traffic flow. There is no question that the sight
line to the east was adequate. While the sight line to the west was less than
desirable, it did not rise to the level of being a dangerous condition. The
snowbank was not the cause of the accident, rather it “merely furnished
the condition or occasion for the occurrence of the event” (Sheehan v
City of New York, 40 NY2d 496, 503).
Decedent’s operation of his ATV was the cause of the accident resulting
in his tragic death. It was incumbent upon decedent, given his operation of the
ATV against the normal flow of traffic and on the shoulder, to check the
intersections he was crossing. Instead, decedent drove along the shoulder of
the roadway at 30 to 40 m.p.h.
Assuming arguendo that the snowbank was a dangerous condition, the Court finds
that the condition was not created by defendant. In examining all of the
photographs which depict the intersection, it is clear that the snow is piled
higher at the corners of Foxwood Drive and Jericho Turnpike and for a distance
along Foxwood Drive. The Court finds no credibility in the theory advanced by
claimant’s expert. His theory was that the snow was higher in this
location because in anticipation of the left hand turn lane, the snowplows would
essentially turn and pile their snow here before proceeding. This theory flies
in the face of the manner in which the plowing is done. The plows drive down
the road, beginning at the left portion of the road and moving further right on
each pass of the roadway, throwing the snow in a uniform manner. The Court
finds that the uneven piles of snow were created by the maintenance crew of The
Hamlet. Further, the Court further finds defendant had no notice of a dangerous
condition at this location, assuming arguendo that one existed.
The Court finds no negligence on behalf of defendant for its lack of benching
the snowbanks. The Court agrees with defendant’s expert that the purpose
of benching is not to improve sight lines but rather to make room for the next
snowstorm. There was no testimony that DOT was or should have been preparing
for another snowstorm. Thus, DOT was involved in other activities, including
still treating icy areas (Exhibit 20).
Based upon the foregoing, the Court finds in favor of defendant and dismisses
the Claim. All motions not specifically ruled upon are denied.
Let judgment be entered accordingly.