New York State Court of Claims

New York State Court of Claims

LONGERETTA v. STATE OF NEW YORK, #2009-018-003, Claim No. 102995 and 102995-A


Based upon the evidence presented, the Court is restrained to find the claims must be DISMISSED. Accidents can be attributed to any number of reasons, and the Court cannot presume that they are the result of the State’s faulty design or inattention to a safety problem without a relevant accident history. Vague generalities are not sufficient.

Case Information

ESTATE OF RAYMOND J. LONGERETTA, by and through his Executor and Executrix, JOHN A. LONGERETTA and LORI SAVINO
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102995 and 102995-A
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
LONGERETTA LAW FIRMBy: David Longeretta, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 9, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimants bring a wrongful death action for the deaths of Raymond J. Longeretta and Mary J. Longeretta as a result of the alleged negligence of the State in designing, constructing, and maintaining Route 5, west of Smalls Bush Road in the Town of Herkimer. This claim

involves a tragic accident in which three people were killed on the afternoon of May 30, 2000,

on Route 5 in Little Falls, New York. The trial of this claim is bifurcated and this Decision relates to liability only.

Ralph E. Reed and his wife were driving on State Route 5, eastbound from Ilion to Little Falls on the afternoon of May 30, 2000. Route 5 is a two-lane, two-way road running east and west with a double yellow center line identifying a no-passing zone. The speed limit in the area is 55 miles per hour (mph). Mr. Reed testified he was driving approximately 40 mph which is consistent with the finding of the State Police investigation.[1] The weather was clear and sunny and the road was dry. The roadway in this area curves to the right with a small knoll. As Mr. Reed crested the small knoll, Donna’s Diner was on the right, or the south side of the road. The road then became flat and straight. At that point, Mr. Reed saw a vehicle (the Longeretta vehicle) facing north, partially in his travel lane, apparently attempting to make a U-turn in front of Massaro’s Flower Shop, also on the south side of the road.

Massaro’s Flower Shop encompasses a parking area for approximately six vehicles, just west of a two-story, red-roofed building. Beyond the red-roofed building proceeding east are four greenhouses. The first greenhouse is along side and parallel to the red-roofed building, perpendicular to Route 5. The next greenhouse is smaller and parallel to Route 5. There is a small gravel area in front of this greenhouse that is used for parking. Two additional large greenhouses sit further back and are parallel to the roadway.

The Longeretta vehicle, a 1997 four-door Oldsmobile Cutlass Supreme SL, was approximately 15 to 20 feet away when Mr. Reed first saw it.[2] Mr. Reed thought he recalled other vehicles parked along the south side of the road. Mr. Reed testified that he applied his brakes but could not stop in time to avoid the collision, and his car struck the driver’s door of the Longeretta vehicle. He saw the vehicle only four or five seconds before impact and estimated his speed at the time of impact to be 35 mph. The collision occurred approximately 250 feet before the Smalls Bush Road intersection. The three people in the Longeretta vehicle were killed.

Mr. Charles Herbster was in a vehicle two cars behind Mr. Reed, and he witnessed the collision. Mr. Herbster testified that Mr. Reed had no time to stop when the Longeretta vehicle pulled out - the collision was inevitable. He estimated the speed of each of the eastbound vehicles at 40 - 45 mph. The driver in front of him just drove around the accident scene and didn’t stop.

Ms. Margaret DeCarr, the owner of Massaro’s Flower Shop, testified. She described the area and recalled seeing Mr. and Mrs. Longeretta in her shop just before the accident. She testified that customers of the shop routinely park between her building and the fog line on the south side of Route 5; although, there is additional parking along the west side of the building. She also recalled having to dismantle part of one of the greenhouses when the State widened Route 5 before this accident.

Sgt. Bernard W. Kennett of the New York State Police testified about the accident reconstruction he performed. He had been a New York State Trooper for almost 12 years at the time of the accident. In addition to his training to become a State Trooper, he also received specialized training in collision reconstruction and is a Certified Accident Reconstructionist. In his report, Sgt. Kennett described Route 5, in the area of the accident, as a two-lane road with a no passing zone and a speed limit of 55 mph. It is 24 feet wide with a south shoulder of 8½ - 9 feet which extends into a parking area for Massaro’s Flower Shop. The north shoulder is approximately 8½ feet wide. Traveling eastbound, the road has a slight righthand curve and a downgrade of .06 - .09% which Sgt. Kennett said would not affect visibility.

Sgt. Kennett testified that he found that Mr. Reed’s vehicle essentially “T-boned” the Longeretta vehicle which was either crossing Route 5 or making a U-turn from some point on the east side of Massaro’s Flower Shop. His estimate of Mr. Reed’s speed at the time of impact was 40 mph and the Longeretta vehicle was moving at approximately 10 mph. The sight distance between the Reed and Longeretta vehicles was determined to be 530 feet or 1/10 of a mile, if there were no vehicles parked on the south side of the roadway. Parked vehicles on the south shoulder could reduce the sight distance, but how much it was affected would be dependent upon the type and size of those vehicles as well as the height of the oncoming vehicle and driver. Sgt. Kennett could not determine whether or not there were vehicles parked on the south side of Route 5 at the time of this accident.

The point of impact was marked with an orange “x” on Exhibit 3F, and was in the westbound lane of Route 5. The Longeretta vehicle had partially crossed the eastbound lane. Sgt. Kennett concluded that the primary cause of the accident was the failure of the Longeretta vehicle to yield the right of way to oncoming traffic while entering the roadway. A potential contributing cause may have been a limited sight distance.

State Police Investigator, Donna B. Wassall,[3] completed the police accident report (MV-104) for this accident. Along with the preparation of the MV-104 report, she also completed a TB-40.[4] A TB-40 is a traffic hazard report which is presented to a particular highway department when an officer believes a situation exists which needs to be reviewed or addressed. She marked two boxes on the form, “high accident location” and under “other” she noted “reduced speed zone.” In Investigator Wassall’s 11-year tenure at the time of the accident as a trooper in Herkimer, she knew of several other accidents in the area. In this report, Investigator Wassall made a remedial suggestion that the speed limit be reduced from Gros Boulevard (County Route 258) to east of Smalls Bush Road (County Route 231) because of limited sight distance for vehicles entering Route 5 from the homes and businesses in this area, primarily on the north side. Both Gros Boulevard and Smalls Bush Road intersect Route 5 from the north. Massaro’s Flower Shop is on the south side between these two intersections.

John A. Serth, a Professional Civil Engineer, currently working as a consultant in the field was called as an expert on Claimants’ case. He has also worked as an engineer for the New York State Department of Transportation, as an adjunct professor at Union College, teaching transportation classes, and as an accident reconstructionist. Mr. Serth went to the scene of this accident in October 2000 and again in the summer of 2001. He reviewed the New York State Department of Transportation (hereinafter DOT) plans[5] for the widening and repaving of Route 5, which was effectuated (Project D253549) in 1991. The project included adding a lane on the south side of the road to provide eastbound traffic a way around vehicles turning left onto Smalls Bush Road. In addition, a portion of the road was repaved. The repaving area included the section of Route 5 partially in front of Massaro’s Flower Shop. Mr. Serth noted that the plans for the project included the following statement:
Driveways shall be constructed in accordance with the State of New York Department of Transportation ‘Policy and Standards for Entrances to State Highways’[6] dated August 1, 1983 (Exhibit 6C, note 1).

Part of that general policy states
Whenever a state highway is reconstructed or resurfaced, existing

entrances to the highway shall be altered by the Department at its
expense to conform to the spirit and intent of the policy and standards

set forth in this part (Exhibit 8, page 4).

There were no notes on the plans indicating any approved deviations from these regulations. According to Mr. Serth, the area in front of Massaro’s Flower Shop failed to comply with the 1983 standards because it is a “minor commercial driveway” without any access control, and sight distance from that driveway was insufficient. He referenced the tables, specifically Table 3,[7] for sight distances at entrances in the 1983 DOT Policy and Standards.

At the time of the accident, the speed limit in the area on Route 5 was 55 mph. The table[8] reflects that the sight distance for a vehicle turning left onto a 50 mph, two-lane road was 740 feet, and for 60 mph, it was 950 feet. These distances are meant to be guidelines. The sight distance at the location that the Longeretta vehicle entered Route 5, as measured by Trooper Kennett, on the roadway was 530 feet. This was supported by the photo logs[9] which are pictures taken every 52.8 feet. Mr. Serth opined that the actual sight distance for a driver sitting in a vehicle was much less than 530 feet and closer to 106 feet.

Compounding the problem is the placement of a maple tree in the yard of the property west of Massaro’s Flower Shop. Because the road curves to the right the tree blocks the view of the area where it is believed the Longeretta vehicle exited from oncoming drivers like Mr. Reed. Vehicles parked along Route 5 directly in front of the flower shop also contribute to the problem of sight distance. It was Mr. Serth’s opinion that Mr. Longeretta pulled onto Route 5 before he could see the Reed vehicle. At 106 feet of sight distance, it would take a vehicle traveling at 40 mph only two seconds to cover that distance. Mr. Reed’s reaction time was longer than the time it took his vehicle to reach the Longeretta vehicle.

According to Claimants, the State failed to reconfigure the driveways accessing Route 5 when it repaved and reconstructed the road in 1991, as it was obligated to do by its 1983 Policy and Standards. The road, Claimants argue, was not reasonably safe for a driver to enter from the Massaro’s Flower Shop’s driveways. The insufficient sight distance was the cause of the accident according to Mr. Serth.

The State called Robert White, a Traffic and Safety Engineer with the New York State Department of Transportation, overseeing the regulatory process for the New York State Highway System. Mr. White had previously been the Resident Engineer in Herkimer County from 1987 through September 2000, and was familiar with the relevant area of Route 5. As Resident Engineer, Mr. White was responsible for the maintenance on the State Highway System in Herkimer County and interaction of the Department of Transportation with other municipalities. He identified the road history documents for this section of Route 5 and the history of work performed on that area of the road. Mr. White noted the road widening project (D253549) that was done in 1991.

The purpose of this project, according to the plans, was the improvement of the Route 5 intersection with Smalls Bush Road with a widening of the roadway to permit eastbound vehicles on Route 5 to pass by vehicles turning left on Smalls Bush Road. Exhibit 6A identifies where the contract project begins, which is just west of Massaro’s Flower Shop which is the two-story, red-roofed building. The actual work, however, began close to the Flower Shop’s eastern corner. No improvements were made to the existing driveway connection. Mr. White agreed that the plans for the 1991 project required that all driveways be constructed in accordance with the August 1, 1983, “Policy and Standards for Entrances to State Highways,” and there were no exceptions to following these regulations noted on the plans. The entire plans, evidenced as Exhibits 6 and 6A-6C, reflect the engineering decisions made on this project, and five engineers signed off on the plans. Mr. White opined that it would have been a hardship on the owners of the flower shop to comply with the regulations regarding entrances to State highways.

The State called as their expert, Russell M. Lewis, Ph.D., P.E. Dr. Lewis is a licensed Physical Engineer in New York and Virginia and received his Doctorate in Traffic Engineering and Transportation from Purdue University. Dr. Lewis has taught at Rensselaer Polytechnical Institute, and was the Superintendent of Public Works in New York, the Chief Engineer with the New York State Thruway Authority, and a Federal Highway Administrator. He was also a partner in a private engineering firm and moved to Virginia in 1971. He was a private engineer in Virginia from 1972 until 1980, focusing on traffic safety and training. He also consulted as a Principal Investigator for the Federal Highway Administration. Since 1980, Dr. Lewis, has been self-employed, teaching courses, doing research studies, and working as an expert witness.

Dr. Lewis defined “stopping sight distance”1[0] as the distance which the driver of a vehicle needs to stop if an obstruction is seen in the driving lane. It is a function of the speed the vehicle is traveling and is measured from the “height of eye”1[1] which is the elevation above the pavement at the general sight level of the driver in the driving lane. In 1998, the height of eye was 3.5 feet. The “height of object” is the height of an object on the pavement that a driver should be able to see, which in 1998 was six inches, according to Dr. Lewis. It is a fundamental design criteria that there be adequate stopping sight distance along a roadway. It was Dr. Lewis’s opinion that there was adequate stopping sight distance along this section of roadway, according to the 1998 Roadway Driveway Manual and based upon the sight distance found by Trooper Kennett in his report.1[2] At 55 mph, according to Dr. Lewis, the manual required a minimum of 450 feet of stopping sight distance. This does not take into account anything on the shoulder or beyond the shoulder of the highway.

Dr. Lewis testified that Trooper Kennett’s finding in the police accident reconstruction report1[3] that the westbound sight distance from the scene of the accident was 530 feet,1[4] was referring to “intersection sight distance,”1[5] which assesses the visibility of seeing another vehicle at 3.5 feet off the roadway. Stated another way, it is the distance between a vehicle on an intersecting road, or in a driveway to a vehicle on the main road. The measurement is taken diagonally across the edge of the roadway. Dr. Lewis agreed that the 1998 manual requires 950 feet of intersection sight distance for someone entering the highway from a driveway entrance when the speed is 60 mph. At 50 mph, 740 feet of intersection sight distance is recommended. Dr. Lewis testified that from the point where Exhibit 4A was taken, there is between 700 to 800 feet to the red-roofed building, less than the recommended intersection sight distance for vehicles traveling at 55 mph. From Exhibit 4A, the greenhouses on the east side of the flower shop behind where the Longeretta vehicle was believed to have pulled out, are not visible.

Dr. Lewis also reviewed the plans for the work performed by DOT in 1991, which he described as a “spot safety improvement”1[6] to the Route 5 intersection with Smalls Bush Road. The contract states that the beginning of the project is just on the west side of the flower shop building of Massaro’s. Dr. Lewis testified that the contract work would have started 50 feet east of the beginning point, according to the plans, which is near where a plastic covered greenhouse is located just east of the flower shop itself. Dr. Lewis acknowledged that the plans required all driveways to be constructed in accordance with New York State DOT Policy and Standards for Entrances to State Highways dated August 1, 1983, and based upon the DOT definition of a driveway, it is any entrance or exit used by vehicular traffic to or from land or an abutting building to a State highway. Using this definition, the paved area for parking to the west of the red-roofed building would be a driveway. Dr. Lewis agreed that there was no access control, curbing, or ditches, to the paved area on the west or east side of the red-roofed building.
The State bears a non-delegable duty to maintain its roadways in a reasonably safe condition for the traveling public (Weiss v Fote, 7 NY2d 579, Friedman v State of New York, 67 NY2d 271). Yet, the State is not an insurer of the safety of its roads and its duty is met when a roadway is reasonably safe under the circumstances (Tomassi v Town of Union, 46 NY2d 91, 97;

Boulos v State of New York,
82 AD2d 930, 931 affd 56 NY2d 714), despite the reality that almost any road could be made safer (Tomassi, 46 NY2d at 97).

The State will only be found liable where the evidence shows it was negligent, that a dangerous condition existed which it created or had actual or constructive notice of but failed to take remedial action to correct (Edwards v State of New York, 269 AD2d 863; Fowle v State of New York, 187 AD2d 698; Brooks v New York State Thruway Auth., 73 AD2d 767, affd 51 NY2d 892). The State’s negligence must be also shown to have proximately caused Claimants’ injuries (Bernstein v City of New York, 69 NY2d 1020, 1021-22).

In the field of traffic design engineering, the State is accorded a qualified immunity from liability unless the evidence shows the design evolved without adequate study or lacks a reasonable basis (Weiss, 7 NY2d at 579; Friedman, 67 NY2d at 271).
From the history in evidence, this portion of Route 5 has been in existence since 1908 and resurfaced several times throughout the years. It is the work performed in 1991 that Claimants’ argue obligated the State to make the areas adjacent to Route 5 in front of Massaro’s Flower Shop comply with the 1983 DOT Policy and Standards for Entrances to State Highways. Claimants rely upon the plans for the 1991 improvement of the Route 5 intersection with Smalls Bush Road to support their position that the State was obligated to assess sight distance from the Route 5 access areas of the flower shop and construct access control, via curbs, medians and/or traffic control devices to insure proper intersection sight distance. The State undisputedly made no modification to the Massaro’s property’s access to Route 5 at the time the 1991 project was implemented. It is Claimants’ position that this evidences the State’s failure to comply with its own plans for the project and the 1983 Policy and Standards for State highway access, establishing the State’s negligence in failing to address a known dangerous condition which resulted in the unfortunate death of Decedents.

Under the “vintage engineering rule” the State is under no obligation to rebuild its older existing highways to conform to newer current standards, unless the State undertakes to reconstruct the roadway or it has notice of a dangerous condition (see Gerwitz v State of New York, Ct Cl, Corbett, J., signed June 2, 2003, Claim No. 100439, UID # 2002-005-025). Under either of these circumstances, the State must bring an older roadway into compliance with current standards. Here, Claimants effectively argue that both circumstances existed requiring the State to bring the entrances to Route 5 from Massaro’s Flower Shop into compliance with the 1983 standards.

Exhibits 6 - 6C are the DOT “as built” revised plans for the 1991 Improvement Project. The plans explicitly make the 1983 Policy and Standards for Entrances to State Highways applicable to the project, and the Court agrees. However, the Court does not find that the plans required the modification of the Massaro’s Flower Shop entrances to Route 5. In fact, the plans reflect just the opposite. The only modification to the Massaro’s Flower Shop property detailed on the plans is the removal of a portion of one of the greenhouses adjacent to Route 5 which encroached upon the State’s right-of-way acquired as part of the project. No other modifications to the property are set forth. As repeatedly noted on direct and cross-examination, these plans reflect the culmination of an engineering study and the engineering determination of at least five DOT engineers. In this case these engineers determined that no changes would be made to the entrances to Route 5 from Massaro’s Flower Shop property. No evidence was presented to explain the basis for that determination. No insight was given into the process that lead to the plans. Yet, even without the cloak of immunity described in Weiss v Fote, the Court does not find the State was obligated to bring these entrances up to the 1983 standards.

The 1983 Policy and Standards sets forth specific design criteria for minor commercial driveways and directs access control into the designated driveways to provide a “well-defined flow”1[7] and to “separate traffic movements on the private property from the highway traffic.”1[8] In this case, the project involved only a limited portion of the Massaro’s Flower Shop roadway frontage. Work on the project began at Station Seventy-Five plus Zero, Zero, or adjacent to the west edge of the first Massaro’s greenhouse. The policy and standards do not reflect any intention or purpose to effectuate a partial modification of a commercial property. Claimants’ expert’s testimony indicates the need for an overall restriction of the access to Route 5 from Massaro’s to a single driveway. This would require work outside of the contract work area for the 1991 project, in effect expanding the project beyond the work required to effectuate the project’s purpose: the improvement of the Route 5 intersection with Smalls Bush Road. There is no authority for the State to have a duty to expand the scope of a project solely to bring a portion of a roadway up to current standards, absent proof of notice of a dangerous condition (see Trautman v State of New York, 179 AD2d 635; Segnit v State of New York, 148 AD2d 519). “The State’s duty is measured, not by current design standards but by reasonableness.” (Kerns v State of New York, 226 AD2d 1046, 1047, dissent appeal dismissed 91 NY2d 829). The minimum standard for permitting driveway access, stopping sight distance, was adequate even under the updated standards according to Dr. Lewis and supported by the pictures in evidence.1[9]

Although Claimant presented some evidence of other accidents in the general area, through Investigator Wassall and Ms. DeCarr’s testimony, the information failed to provide the dates and circumstances of these other accidents. Without the specific information of the time frame and details surrounding these accidents, the Court cannot find that the State had notice that accessing Route 5 from Massaro’s Flower Shop was a dangerous condition requiring remedial action. In fact, Investigator Wassall, although noting sight distance was an issue in this area, related the problem at trial primarily to access from the north side of Route 5, opposite the side of Massaro’s Flower Shop. Accidents can be attributed to any number of reasons, and the Court cannot presume they are the result of the State’s faulty design or inattention to a safety problem without a relevant accident history. Vague generalities are not sufficient. In the absence of proof that the flower shop entrances to Route 5 were unsafe, the fact that access control may have made the area safer is not sufficient to establish the State’s negligence (see Puliatti v State of New York, 91 AD2d 1192, lv denied 59 NY2d 603).

Whenever such a tragic case is presented it is always difficult to separate the desire to place blame for the accident and somehow compensate for the loss by the only means left available, from the obligation to solely evaluate the evidence and apply the law; yet, the Court is charged with just that duty. It must set aside its sympathy for the abhorrent circumstances and make a decision only upon the evidence presented. Based upon that evidence the Court is constrained to find the claims must be DISMISSED.


February 9, 2009
Syracuse, New York

Judge of the Court of Claims

[1].Exhibit 5, page of Collision Reconstruction Findings Report.
[2]. Mr. Reed marked Exhibit 4K with an orange “x” for the middle of the decedents’ car when Mr. Reed first saw it.
[3].Investigator Wassall was not an investigator at the time of the accident and was known as Donna Dorozynski.
[4].Exhibit 5.
[5].Exhibit 6 and B.
[6].Exhibit 7; 17 NYCRR Part 125.
[7].Exhibit 8, p. 33.
[8].Exhibit 8, p. 33.
[9].Exhibits 4A - 4M.
1[0].Exhibit H, p. 29, lines 17 - 25.
[1]1.Exhibit H, p. 30, lines 1 -9, p. 31, lines 1 - 18.
1[2].Exhibit 5.
1[3].Exhibit 5.
1[4].The question posed to Dr. Lewis reflects that Trooper Kennett found 350 feet of westbound sight distance but it was actually 530 feet based upon Exhibit 5, page 5.
1[5].Exhibit H, p. 40, lines 19 - 25.
1[6].Exhibit H, p. 56, lines 24 - 25.
1[7].Exhibit 8, p. 20.
1[8].Exhibit 8, p. 20.
1[9].Exhibits 4A - 4L.