New York State Court of Claims

New York State Court of Claims

GASPARRO v. THE STATE OF NEW YORK, #2009-016-005, Claim No. 101063


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):

Alan C. Marin
Claimant’s attorney:
Maffei & Condon, LLPby: Frank M. Maffei, Jr., Esq.
Defendant’s attorney:
Andrew Cuomo, Attorney Generalby: John L. Belford, IV, Esq.
Third-party defendant’s attorney:

Signature date:
January 28, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)

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.
Claimant 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).
By the 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.
Gasparro testified as follows:
Q. And, at some point as you headed northbound on the Sagtikos, did you see another vehicle?

A. I just saw this guy coming in.
Q. Where was he coming in from?

A. He was coming from the entrance . . . On my right . . . he came inside and he came out right in front of me . . . I tap on the brakes to make sure I don’t hit the guy. And when I did, [my] car start[ed] to slide to the, to the left . . . I kind of lost control of the car . . . I don’t remember anything after that.
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 lanes.
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:
Q. What’s the first thing you remember after stepping, after you stepped on the brakes?

A. I don’t remember much because everything happened so fast . . . On the grass. That was the end of that. I don’t remember no more. When I tapped on the brakes, I turned a little to the left to try to get away from the guy. That’s when I skid. I wind up on the grass. After that, I don’t know. I must have got hit on the head.

Claimant’s Case
Claimant offers a number of arguments to implicate liability on the part of the defendant State of New York:
-- 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 median;
-- 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 pavement.

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 York, 67 NY2d 271, 502 NYS2d 669 (1986); Guan v State of New York, 55 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 today.
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) & 134.2(c).
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 W).
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.
A 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.
A sufficient accident history would overcome the State’s Weiss v Fote qualified immunity.
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 paint.”
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 rail.
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 Gasparro’s.
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.
Mr. 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 accident.
-- 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 foundation.
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.

January 28, 2009
New York, New York

Judge of the Court of Claims

[1]. The Sagtikos begins at the Southern State Parkway and runs north.

[2]. Mr. Bellizzi testified that the standard became calculated at fifty feet of distance for every foot the road narrows, or for this 12-foot lane, 600 feet, citing to the 1984 standard, which in the 1994 standards had been increased to seventy to one.
[3].7 NY2d 579, 200 NYS2d 409 (1960).
[4]. Testimony was elicited that reporting an accident at a particular mile marker meant that such marker was the nearest one. Without intending to provide more precision that this reporting procedure is entitled to, an accident designated at mile marker 1001 could thus have occurred between miles 1000.5 and 1001.5. The point at which the Sagtikos meets the Southern State is mile marker 1000; it is clear from the aerial photograph that is defendant’s exhibit O and the various tabs thereon that the accident history for mile markers 1001 and 1002 are the relevant ones.
[5]. See claimant’s exhibit 7.