This is the decision following the trial of Nicola Gasparro’s claim
arising from his accident on the Sagtikos State Parkway on June 29, 1999.
Inasmuch as the claim of his wife, Janice, is derivative, the term
“claimant” in this decision will refer to Mr. Gasparro.
was returning to his home in Suffolk County (Islandia) from his job in Nassau
County. As he customarily did, Gasparro drove eastbound on the Southern State
Parkway and then exited north onto the Sagtikos Parkway. Mr. Gasparro testified
that it was about 7:30 p.m. and the pavement was wet.
Traffic on the
Southern State, whether traveling either east or west, that exits north, merges
at the same stretch of road on the Sagtikos.
Eastbound Southern State drivers, like claimant, merge from the left, and
westbound drivers merge from the right. (See the aerial photograph that is
defendant’s exhibit O).
The exit ramps to the Sagtikos Parkway from
each direction of the Southern State are two lanes wide; where they meet at the
Sagtikos, the Parkway is four lanes wide, soon becomes three lanes, and then two
lanes. The two inner lanes become the through road - the right lane of the
eastbound Southern State to the Sagtikos ramp and the left lane of the ramp from
the westbound Southern State. (See defendant’s exhibit O).
accident site, the Sagtikos is straight and flat. Its north and southbound
lanes are separated by a median that, by any measurement, is at least 48 feet
wide. There are no median guide rails on this straightaway.
testified as follows:
It is not disputed that claimant’s vehicle left the
northbound lanes, went through the center median, hit a car in the southbound
lanes driven by Edward Kaspshak, and ended up on the grass beyond the southbound
There is an issue, however, of whether Gasparro hit a tree in the
median. Claimant testified that, “I must have hit a tree,” and then
on redirect, he said that the tree, “went right through the windshield and
hit me in the head.” In a deposition taken on December 4, 2001, the
following exchange occurred:
Claimant offers a number
of arguments to implicate liability on the part of the defendant State of New
-- A guide rail on the nearby median was required;
-- The tree,
which claimant says he struck (or must have struck), should not have been in the
-- The merge area did not run long enough, and at a minimum, this
problem could have been ameliorated by the painting of certain markings on the
As a general proposition, the design
and engineering of a highway are subject to the standards existing at the time
of construction. Guzov v State of New York
, 48 AD3d 751, 852 NYS2d 392
(2d Dept 2008), lv denied
11 NY3d 710, 868 NYS2d 602 (2008). However,
reconstruction or renovation of sufficient scope can trigger the use of new
standards; moreover, a consequential accident history can also require
modification of an original highway design plan. Friedman v State of New
, 67 NY2d 271, 502 NYS2d 669 (1986); Guan v State of New York
AD3d 782, 866 NYS2d 697 (2d Dept 2008).
The merge distance at this location
is 300 feet. Michael Ufko, a Department of Transportation (DOT) engineer, in
his testimony agreed with claimant’s expert engineer, Nicholas Bellizzi,
that a 300-foot merge would be substandard for a highway built
Mr. Ufko testified that the Sagtikos was constructed in the mid-1950's. At the
time of its construction, there was no extant standard that would have indicated
that the constructed 300-foot merge was not long enough. Nor, stated Anna
Elias, also a DOT engineer, had there been any reconstruction since then that
would have implicated the use of new standards.
As for guide rails,
claimant cannot point to any standard in effect at the time of construction, or
for that matter, any time thereafter that, without more, required their
placement on this straightaway. With that said, a guide rail can be a possible
remedy for an inadequate clear zone.
A clear zone is defined in the rules
and regulations of the Department as the “area adjacent and parallel to a
section of traveled way that shall be free of nontraversable hazards and fixed
objects as determined by the department” and as the “area, starting
at the edge of the traveled way, available for safe use of errant vehicles, as
determined by the department.” 17 NYCRR §§131.5(e) &
The Sagtikos as a “parkway” was - - and is - -
intended to have a relatively sylvan character, and no commercial vehicles are
permitted. Elias credibly testified that the clear zone for a “major
highway” or expressway is 30 feet, but that for a parkway like the
Sagtikos, for which preservation of its aesthetic nature was part of the
consideration, the clear zone is 20 feet. See Design Memo No. 91, adopted by
Region 10 of DOT (Nassau and Suffolk counties) on September 24, 1991 (def exh
The Highway Design Manual provides that a median width should be one
and one half times the clear zone, or 30 feet; it was undisputed that the median
was at least 48 feet wide. Obviously, even had the clear zone been subject to
the 30-foot expressway standard, the median was sufficiently wide.
tree with a diameter of less than 100 mm, or about 4 inches, is not deemed a
fixed object subject to removal or guarding and thus does not impair the clear
zone, on the theory that it will “give” when struck by a car. The
trial evidence - - photographs and testimony of witnesses - - does not indicate
that there were any trees of that size in the median area (see for example, the
photograph that is defendant’s exhibit D.) As set forth above, Mr.
Gasparro had no actual recollection of hitting a tree in the median. I am not
persuaded otherwise by claimant’s expert, Mr. Bellizzi, who visited the
site on June 1, 2008 and said that “this particular median had a lot of
trees” (nor by Bellizzi’s identifying a tree stump in a photo that
was apparently taken the day of the accident (def exh A)). The testimony from
witnesses at the scene that day focused on the place where Gasparro actually
traversed the median, and it did not contain four-inch-thick trees.
sufficient accident history would overcome the State’s Weiss v Fote
Such immunity not only shields the State from having to make significant
modifications, but lesser ones relating, for example, to pavement markings.
Bellizzi testified that, “you could easily change the merge area with
paint . . . You had four lanes coming in there and you, you could have made one
lane coming in from the right side and, and not have the merge at all and you
wouldn’t have a merge. You would just have a separate lane just with
Bellizzi’s recommendation lacks precision and is
difficult to visualize, not having been accompanied by any schematic. In any
event, without an accident history related to the merge, the presumptively
modest cost and effort required to accomplish same will not overcome the
qualified immunity for the State’s original design decisions for the
Sagtikos which did not vary from standards, if any, at the time of construction.
Similarly, without an accident history, there is no basis for a guide
The subject location was described at trial as “a bad accident
area” by State Trooper William Rivera, who had responded to
Gasparro’s accident scene, although it was unclear if Rivera was focused
on the period prior to June 29, 1999 - - he used the phrase “throughout
the years at that location.” On that issue, in a form letter from a
Trooper Ryan, the box next to “high accident location” is checked
off, but Ryan’s letter was dated January 25, 2001. (Cl exh 2).
What matters here is the actual accident history prior to June 29, 1999.
Note that Ms. Elias stated that the Department had no complaints or notice of
any problem at the subject location before June 29, 1999. Her colleague, Mr.
Ufko, stated that prior to June of 1999, there had been no requests to do a
study of this section of the Sagtikos. Ufko testified that there is a permanent
loop counter station just north of the merge at mile marker 1002. A traffic
count done in February, 1999 shows a daily northbound count of 42,503 vehicles
(“adjusted based on the time of year”), or an annual northbound
total of 15,500,000 vehicles.
There were three accidents recorded at mile
marker 1002 from 1996 to 1999, one of which was claimant’s; another was a
northbound rear-end collision and the third was non-reportable, meaning minor
property damage only.
Between 1996 and 1999, the area around mile marker 1001 had 25 accidents,
which Ufko concluded, given the volume on this highway, was not a high accident
rate. The engineer explained that some ramps had “well over one hundred
rear-end accidents in three years.”
Of these 25 accidents, three were
rear-end collisions, seven southbound, and six non-reportable, leaving nine
northbound accidents that could be similar to
Moreover, it is not clear how many of these nine involved cars entering the
median. Claimant’s expert engineer Bellizzi used the figure of twelve
comparable accidents, but in either case, this was not a sufficiently high
accident rate to trump Weiss v Fote,
7 NY2d 579, supra.
Gasparro’s testimony about what happened included:
-- That his speed
was “about forty-eight, forty-nine, something like that.” Other
eyewitnesses had him driving faster, and the reference to 48 or 49 seems a
little too precise. To the extent this claim is based on an improper design,
the design speed must be considered, and that was set at 65 miles per hour,
according to Ms. Elias.
-- That he was driving in the right lane, which
is why he came close to the vehicle merging from the right. But an eye witness,
Rose Marie Agresta, testified that he was in the left lane just before the
-- That he hit a tree in the median. The Court finds a failure of
proof for this assertion.
In sum, not only has Mr. Gasparro failed to
surmount defendant’s qualified immunity, but the facts upon which he
grounds his case (leaving aside the speeding issue) are, at best, a shaky
In view of the foregoing, the Court is constrained to dismiss the claim of
Nicola Gasparro and that of Janice Gasparro (claim no. 101063); the Clerk of
the Court is directed to enter judgment accordingly.