New York State Court of Claims

New York State Court of Claims

SAVINO v. THE STATE OF NEW YORK, #2008-033-592, Claim No. 111908


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:
Ferro, Kuba, Mangano, Sklyar, Gacovino & Lake, P.C.By: Kenneth E. Mangano, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 23, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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)[1]. 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.[2] 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 “benching”.

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 Jericho Turnpike.

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 F.[3] 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 Turnpike.

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 roadway.[4] 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.

December 23, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].Jericho Turnpike is a divided east/west roadway on the north shore of Long Island. There is a median running along the center of the roadway which allows limited access across the roadway.
[2].The Court notes that this travel is against the flow of traffic on the westbound side of Jericho Turnpike.
[3].These are photographs of the intersection on the day of the accident. They are blow-ups of a police photograph.
[4].The Court notes that claimant’s expert testified that he partially relied on the guidelines for “benching” to restore sight lines based upon the Guide for Snow and Ice Control published by the American Association of State Highway and Transportation Officials (AASHTO). Mr. Amsler is the author of that portion of the guide relied upon by claimant’s expert.