New York State Court of Claims

New York State Court of Claims
PALUMBO v. THE STATE OF NEW YORK, # 2009-029-071, Claim No. 114332


Highway negligence claim is dismissed after trial with the court finding that claimant did not sustain his allegation that the sight distance at the subject intersection was improper and that the accident was not caused by the conditions at the intersection but by the other driver's failure to yield the right of way.

Case information

UID: 2009-029-071
Claimant short name: PALUMBO
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114332
Motion number(s):
Cross-motion number(s):
By: Lawrence P. Biondi, Esq.
By: Vincent M. Cascio, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 21, 2009
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


This claim arises from an August 2, 2006 two-vehicle automobile accident on Route 208 in Orange County. Lawrence Palumbo ("claimant") was driving southbound on Route 208 when his vehicle collided with a northbound vehicle making a left turn from Route 208 onto Sarah Wells Trail. Claimant contends that the intersection was "negligently designed and lacked the required warning and traffic signs [and] . . . traffic control devices," and that northbound motorists "do not have a clear line of sight and are not warned of the intersection with Sarah Wells Trail." Claimant seeks damages for personal injury and his wife Irene Palumbo seeks damages for loss of services and consortium.

Claimant was driving from his vacation home in Campbell Hall with his son, the owner of the vehicle. He had owned the vacation home for 15 to 20 years and was very familiar with Route 208 in this area. He testified that, as he drove southbound at about 30 m.p.h., he didn't see the other vehicle until it was "right on top of me . . . maybe ten feet away" (1) (see Ex. B). Claimant marked a photograph of the intersection (Ex. 33) with an "X" to indicate the location where his vehicle contacted the northbound vehicle, and with a dot to indicate where the northbound vehicle was when he first saw it. He testified that the front of his vehicle struck the front side of the other vehicle.

Robert Segaloff, who was driving the northbound vehicle, was also very familiar with Route 208 and the intersection with Sarah Wells Trail, having lived in the area and driven on the road for over thirty years. He testified that he was driving north on Route 208 on the afternoon in question at what he recalled was the 45 m.p.h. speed limit as he approached the intersection with Sarah Wells Trail from the south. The intersection is in the shape of a "Y," with the base of the "Y" being northbound Route 208, Sarah Wells Trail veering off to the left at an angle of approximately 135 - 140 degrees, and Route 208 continuing at a similar angle to the right. Segaloff, who was intending to make the left turn onto Sarah Wells Trail, characterized it as "closer to being straight than making a left turn." Segaloff claimed that he slowed "almost to a stop" - which he later clarified as meaning 5 to 10 m.p.h. - before making the left turn yet he never saw claimant's vehicle approaching from the north until it struck his vehicle. He stated that the sight distance is limited because "the road turns to the right and there's brush on the side of the road." Although he stated that his vehicle was "into Sarah Wells Trail when I was hit, almost completely through the intersection," he later acknowledged that his vehicle was struck in the area of the front passenger side fender and wheel. Segaloff identified the crash location with an "X" on Ex. 36. He was shown a number of photographs and asked to indicate how far he could see to the north and responded by stating that he was not good at judging distances and could not remember how far he could see, but he could see farther than the location of the vehicle shown at the right edge of Ex. 39 and at least as far as the northbound vehicle shown on Ex. 43.

On cross-examination, Segaloff did not agree with defense counsel that southbound Route 208 traffic had the right-of-way over northbound traffic making the left turn onto Sarah Wells Trail: "I don't know if southbound traffic has the right-of-way, to me I'm going straight," a statement he repeated on redirect.

Claimant called three present and former Department of Transportation employees on his direct case. The first, Robert Dennison, currently DOT's Chief Engineer statewide, was the Regional Director for Region 8 - encompassing seven counties and over 1,000 miles of State highways - during most of the time under discussion at this trial. He was asked generally whether a "traffic study" was necessary before remedial action was taken with respect to a dangerous intersection and responded that if an intersection had a high accident rate it would be examined. The process sometimes involves a detailed study but other times might result in quick corrective action. Asked if a "traffic study" was necessary for a capital project to be implemented, Dennison responded that capital projects are initiated by a committee that reviews applicable data, but he could not state that in all cases a capital project must be preceded by a detailed traffic study.

Dennison identified and described a number of DOT documents detailing the attention paid to the subject intersection over the decade preceding claimant's accident. The first document (Ex. 1) describes the 1997 installation of two intersection warning signs on Route 208 in response to "recent complaints about site distance at the intersection," and the second (Ex. 2) describes the relocation of the signs. Dennison was not in Region 8 in 1997 and 1998 and was not familiar with any traffic study leading up to the installation and relocation of the signs, but he testified that some type of investigation, minimally involving a site visit, would be performed before traffic signs were installed or relocated.

In August 2000, Mr. Dennison, by this time the Regional Director, received a letter from Assemblywoman Nancy Calhoun stating that there had been numerous accidents at the subject intersection and requesting Dennison's attention to "the possible need of a traffic study to determine if there are avenues which may be pursued to insure the safety of those traveling this intersection" (Ex. 3). Dennison responded by stating that the matter had been referred to the Regional Traffic Group and that the Assemblywoman would receive a response when the investigation was complete (Ex.4). He could not recall being provided with the results of any traffic study, nor could he recall responding to the Assemblywoman in writing. However, on October 18, 2000, Dennison received an e-mail from his assistant, Purdy Halstead, reporting on a meeting with Calhoun and three of her constituents at the intersection site. Halstead reported the concern for the safety of the intersection arising from "[t]he feeling is that cars coming from Washingtonville and wanting to turn left into Sarah Wells Trail cut across the oncoming traffic causing the conflict" (Ex. 5). Halstead wrote that Calhoun asked him if there could be a short-term solution such as cutting down some trees and brush to open the sight lines, as well as a long-term solution. He further wrote that the problem with cutting trees was that it would require the State to acquire additional right-of-way.

On December 13, 2000, Dennison wrote to William FitzPatrick, the Director of the Traffic and Safety Group, stating that Assemblywoman Calhoun had called him about a number of things, including the status of her request for a traffic study at the subject intersection, and that they needed to get back to her with an update. The bottom of that e-mail contains a handwritten note from Randy Harwood, an engineer in the Traffic and Safety Group, to David Parker, another engineer in the group, advising of Halstead's meeting with Calhoun and her constituents, and stating that "[h]e told her the long term fix is a left turn lane and the short term fix involves trimming/removing trees on the inside of the curve to improve sight distance" (Ex. 6). Parker wrote to Dennison and FitzPatrick the next day, repeating what Harwood had told him (Ex. 7). Dennison testified that he never received a proposal from the Traffic and Safety Group to install a left turn lane. He also indicated that there was no record of any investigation of whether any other changes to the intersection, not involving a capital project, such as further sign changes, repainting the lanes or changing the speed limit, would have been appropriate at this intersection.

DOT received a second letter from Assemblywoman Calhoun on July 11, 2002, stating that the area had experienced a high rate of growth, alleging that there had been a continued increase in accidents at the intersection and asking for help in removing trees. On August 1, 2002, Terry Tobin, a Resident Engineer, wrote to Daniel Fruitbine, the owner of the property immediately to the east of northbound Route 208, and requested permission to enter his property to remove trees and brush to improve the northbound sight distance, noting that such permission had been granted a number of years earlier (Ex. 11). Fruitbine's attorney responded, noted that the State's right-of-way extended only 26 feet from the highway centerline in each direction, and refused permission to enter his clients' property (Ex. 12). Two months later, Tobin wrote again to Fruitbine, specifically requesting permission to remove seven spruce trees and trim some overhanging branches from his property, all within 28 feet of the centerline (Ex. 13), but the request was ignored. In December 2002, Tobin wrote to Harwood, advised that Fruitbine had not responded to his letter and asked if maybe Assemblywoman Calhoun could intercede with Fruitbine. Harwood told Tobin that he would send a copy of the letter to Calhoun and ask for her assistance (Ex. 14). On January 10, 2003, Harwood told Tobin he had spoken with Calhoun on the phone and she suggested that DOT send Fruitbine another letter, by certified mail, requesting his response by a certain date, and said she would call Fruitbine if he ignored that letter. She also advised that the location was no longer within her district. Tobin did not see the point of sending another letter after Fruitbine ignored the first one, and Harwood told him "it's your choice" (Ex. 16).

In April, 2004, Harwood received an e-mail from Ken Dodge, a Resident Engineer, stating: "A concerned Orange County [r]esident expressed concern with this intersection. With the large number of new residents, more drivers are just turning onto the Trail from Rte. 208 (NB) across the SB traffic without slowing. It looks like an accident waiting to happen. Could you see if this area now warrants more traffic control? Signing? [F]lashing light?" (Ex. 17). Harwood responded to Dodge: "We have tried to get a project here for years to increase the visibility on the inside (east side of Rte. 208) of the curve and develop a northbound left turn lane, but without success. Feel free to contact [p]lanning and put this on the top of your wish list with them" (id.).

Dennison spoke generally about two categories of remedial projects - maintenance projects such as pavement marking and signs that are approved by a resident engineer, and capital projects, which involve approval by the Safety Goal Team. Both types of projects are originated by engineers in the Traffic Safety Team and Dennison indicated that the primary factor they consider is the collision rate at the location in question. He was not aware if a proposal was ever made to the Safety Goal Group concerning the subject intersection.

Thomas Weiner was an engineer with the Traffic and Safety Group from 1983 through 2000, when he joined the Planning and Program Management Group (PPMG). Weiner explained that the Safety Goal Team, of which he was a member, was formed in 2001 and that after that date, any request for a capital project would come from the Safety Goal Team to the PPMG. Prior to 2001, requests came directly from the Traffic and Safety Group. He noted that no request for a capital improvement project was ever made for the subject intersection.

Weiner could not recall this intersection ever being discussed by the Safety Goal Team and could not find any documentary record that such had occurred. He also could not recall ever being aware of a high accident rate at the intersection.

Weiner explained that a "traffic study" can mean a wide variety of things, ranging from a simple site inspection to determine the adequacy of traffic signs to a formal investigation that forms the basis for a capital project. He stated that he uses the terms "traffic study" and "investigation" interchangeably and that there are anywhere from 350 to 500 traffic studies conducted each year in Region 8. He identified Randy Harwood, now deceased, as the investigator who dealt with requests for investigations in Orange County. During the time Weiner was with the Traffic and Safety Group (through 2000), he was Harwood's supervisor. He stated that Harwood never came to him with a proposal for the subject intersection while he was with the Traffic and Safety Team, but did recall a conversation with Harwood after he moved to the PPMG. Weiner recalled that Harwood asked him if there were any capital projects planned for the area and Weiner told him no. Weiner testified that no proposal for any work at the intersection was ever made to the PPMG (see Ex. G, 459 pages identifying all capital projects in Region 8 from 1997 through 2006). He also indicated that there was no record that the intersection was ever considered for a project by the Safety Goal Team (see Ex. I) and that any proposal for a capital improvement would have to be based on a high accident rate and supported by a proposal that was cost efficient. In response to claimant's inquiry as to why this area was never considered for a capital project, Weiner opined that after review of the accident data, Harwood and Robert Rella (Weiner's successor as Harwood's supervisor after 2000) would not have concluded that a project was warranted. He stated that if Harwood wanted to propose a project, the request would go to his immediate supervisor (Weiner, through 2000; Rella thereafter) and the supervisor would decide whether to pass it on. Subsequent to the formation of the Safety Goal Group in 2001, any request would go first to that group and, if approved, to the PPMG. Weiner stated that accident history is always the threshold issue. If the accident history of a location does not justify expenditures for a capital project, no further study is done. With respect to Harwood's suggestion to Dodge that he should "[f]eel free to contact Planning and put this on top of your wish list with them" (Ex. 17), Weiner did not know what a "wish list" was and repeated that there was no indication that any project for the subject intersection was ever reviewed by the Safety Goal Team or the PPMG.

Robert Rella, an engineer with the Traffic and Safety Group from 1990 through 2006, supervised various groups of engineers during his tenure. The responsibilities of these engineers, including Randy Harwood as relevant to this case, involved conducting safety investigations prompted by an annual listing of high accident locations and by requests from the public purporting to identify problem areas. Rella testified that the subject location did not appear on any list of high accident locations, although he stated that he only recalled looking at one year's list and could not recall which year it was.

Rella represented the Traffic and Safety Group on the Safety Goal Team. His recollection was that no project for this intersection was ever brought before the Safety Goal Team. He did recall discussions with Harwood in 2002 in which Harwood recommended installation of a left turn lane and may have suggested changes to signing and lane striping. Rella testified that review of the intersection had been assigned to Harwood, the primary investigator for Orange County, after receipt of the letters from Assemblywoman Calhoun in 2000 and 2002. On June 12, 2002, Weiner wrote to Harwood stating: "I couldn't find any projects programmed for this intersection. If there is an accident problem I suggest that you ask Bob Rella to bring it up to the Safety Goal Team. There is already a lot of competition for funding but if this is a significant problem it could jump over other projects" (Ex 8). After speaking with Rella, Harwood wrote back to Weiner stating: "I checked with Bob and he said this would not qualify for a project that would jump ahead of others" (id.). Rella explained that Harwood would bring recommendations to him and they would go over them and determine what was and was not feasible. Rella stated that he had experience and knowledge not possessed by Harwood, in particular, knowledge of other proposals for other areas of the residency that were competing for the limited funding available. He noted that the location was not on the high accident location list and he never approved any of Harwood's recommendations for the intersection, which meant that they were never presented to the Safety Goal Team. He corroborated that any proposed project had to be justified by the accident history and that there were "many other locations with more severe issues." These other locations had a higher priority than the subject location and since competition for the limited available funding was based on identifying projects with the greatest benefit/cost ratio, Harwood's proposal was rejected by Rella and not presented to the Safety Goal Team. He stated "I felt a capital project here had no chance of being approved."

On redirect examination, Rella was shown a series of Police Accident Reports concerning accidents at the subject intersection, as follows:

Ex. 20 - Feb. 8, 2002 - rear-end accident on NB Rte. 208;

Ex. 21 - Mar. 12, 2002 - rear-end accident on NB Rte. 208;

Ex. 22 - July 24, 2002 - failure to yield right-of-way; (2)

Ex. 23 - Aug. 13, 2002 - failure to yield right-of-way;

Ex. 24 - Dec. 27, 2002 - rear-end accident on SB Rte. 208;

Ex. 25 - April 20, 2003 - rear-end accident on NB Rte. 208;

Ex. 26 - April 25, 2005 - failure to yield right-of-way;

Ex. 27 - Oct. 14, 2004 - failure to yield right-of-way;

Ex. 28 - July 26, 2005 - failure to yield right-of-way

These were the only accident reports, other than the report of the subject accident, submitted by claimant. Claimant also submitted two DOT printouts describing accidents at the intersection, the first (Ex. 30) covering a period of 10 years (Jan. 1, 1994 - Dec. 31, 2003) and the second (Ex. 31) covering six years (Aug. 1, 2001 - Aug. 2006). These printouts show nine accidents involving a left-turning northbound driver failing to yield right-of-way to a southbound driver in the 10 years ending Dec. 31, 2003 and six such accidents in the six years ending Aug. 1, 2006, the day before claimant's accident, or a total of 15 accidents with at least surface similarity to claimant's accident in the 12 year, 8 month period. Rella stated that this number of accidents, slightly over one per year, did not cause concern and was not sufficient to justify expenditure for a capital improvement project. It should be noted that both printouts reflect many more rear-end accidents involving two drivers proceeding in the same direction than left-turn, failure to yield, accidents.

Rella testified that no project was considered for the intersection after July 2002 other than the continuing efforts to cut brush within the right-of-way and obtain permission to cut trees on non State-owned property to improve the northbound sight lines. He was not aware of the results of these requests, which were the responsibility of the Resident Engineer, not Traffic and Safety engineers.

Claimants also called JoAnn Santoro who has lived in the house located at the corner of southbound Route 208 and Sarah Wells Trail since 1996. She testified that she had observed approximately eight accidents per year at the intersection and that she made a practice of calling DOT and leaving voice mail messages after these accidents. She was present at the October 2002 meeting with Purdy Halstead, Dennison's assistant, and Assemblywoman Calhoun. Her observation and opinion was that northbound vehicles sometimes turn too soon, at a point where they cannot see oncoming traffic. She stated that "nothing was done" after the meeting and she stopped making phone calls. She also claimed that she never saw anyone from DOT trimming brush.

Claimant's final witness was Daniel Burdett, a mechanical and industrial engineer who has never been employed by any transportation organization and has no experience in the design of roads or highways or the installation of traffic control devices. His experience is in the area of industrial workplace safety and what he described as "human factors engineering," and the court allowed him to testify as to his opinions relating to the causation of the accident but found that he was not qualified to testify as to highway design and engineering.

Burdett visited the accident scene in May 2007, accompanied by a photographer who took the photos admitted as Exhibits 33 through 46. Much of his testimony centered around Ex. 40, a photograph taken from the northbound shoulder that Burdett maintained showed the view of a northbound driver from where he thought Segaloff started his left turn, ten feet prior to the break in the double yellow line separating the northbound and southbound lanes. He testified that Segaloff's sight distance at this point would have been 160 feet, or approximately to the end of the store shown on the photo. He characterized this distance as "inadequate" and opined that Segaloff's inability to see claimant's vehicle was the cause of the accident. Referring to Exhibit 40, he stated "you have to be able to see more than is shown here to make a safe turn." Burdett also opined that the double yellow line ended too soon, at a point where turning was not safe. Although Burdett attempted to testify as to allegedly relevant sections of the Manual of Uniform Traffic Control Devices allegedly violated, his references were to extremely general sections of a version of the manual that had been amended and replaced long before the time period at issue in this case. Thus, his testimony on this point was disregarded by the court.

Asked by defense counsel why Ex. 40 was taken pointing up Sarah Wells Trail and not Route 208, thereby narrowing the viewer's line of sight well before what would have been the case had the camera been pointed up Route 208, Burdett stated that the turning vehicle would be pointed in that direction so that would be what the driver sees. He had no cogent explanation for taking the photograph from the shoulder, when the purpose was ostensibly to show the view of a driver positioned in his vehicle a few feet to the right of the road's centerline nor could he explain why a driver who was supposed to be looking at the southbound lane for oncoming traffic before turning would be looking up Sarah Wells Trail instead. He acknowledged that Ex. 41, a photo taken just north of the location of Ex. 40, and which more closely corresponds to where Segaloff stated he began his turn, clearly showed a house adjacent to the southbound lane of Route 208, and all the roadway in between. All testimony in this case placed the house approximately 480 feet from the intersection.

Defendant's sole witness, William FitzPatrick, testified as both a fact witness - he was the Director of Traffic and Safety Engineering for Region 8 for ten years prior to his retirement in 2004 - and an expert. Referencing the as-built plans (Ex. A) and Road History (Ex. B) for Route 208, FitzPatrick indicated that the road was constructed in 1937 with no substantial reconstruction, beyond resurfacing, since then. He characterized the width of the State's right-of-way as "constrained." The Route 208 approaches are controlled by advisory speed signs of 35 m.p.h. northbound and 30 m.p.h. southbound. According to FitzPatrick, the foliage on the northbound side had been cut back over the years to the right-of-way line.

FitzPatrick measured the sight lines at the intersections using three methods. First, he went to the scene and took measurements and photographs (Exhibits Y through GG). Looking northbound and measuring from a point immediately adjacent to the end of the centerline, he found a clear line of sight of at least 450 feet (Ex. BB). He verified this measurement by reference to DOT photologs. The 2000 northbound photolog (Ex. D) showed that from a point prior to where turning was allowed (plate 55), the house shown on claimant's Ex. 41, about 475 feet away, was just starting to become visible, and from the plate 56, which FitzPatrick stated was taken from the point where a left-turning driver would be sitting waiting for traffic to clear, the entirety of the house is clearly visible (see also Ex. HH, 2004 northbound photolog, plates 9.510 and 9.521, and Ex. II, 2006 southbound photolog, plates 25.160 and 25.181).

Finally, FitzPatrick obtained aerial photographs from Google maps and plotted the line of sight from the end of the centerline (the earliest appropriate point to start the left turn) as 491 feet using the road and shoulder (Ex. M) and 308 feet using only the road (Ex. P). Plotting from a point 50 feet north of the break in the centerline, closer to where Segaloff stated he began his turn, he found sight distance of 535 feet, using the road and shoulder (Ex. S).

FitzPatrick's opinion was that the sight distance at this intersection was more than adequate to make a safe turn and that the cause of this accident was Segaloff's failure to yield the right-of-way when it should have been obvious to him that claimant's vehicle was approaching in the southbound lane. He testified that there was no reason for this accident to have occurred if the speeds of the two vehicles had been what the two drivers had testified: 30 m.p.h. for claimant and 5-10 m.p.h. for Segaloff. Based on the drivers' testimony that their vehicles remained in the intersection after the impact, and the fact that the two vehicles' weight was essentially the same, FitzPatrick explained that the laws of physics dictated the conclusion that their speeds were roughly the same; i.e., the 30 m.p.h. testified to by claimant and not the 5 to 10 m.p.h. claimed by Segaloff. FitzPatrick concluded that Segaloff started his turn when the vehicles were only 35 to 40 feet apart. He noted it would take a left-turning vehicle about two seconds to cross the southbound lane, from a dead stop, and that since claimant was traveling at 30 m.p.h., or 44 feet per second, claimant's vehicle had to have been within 88 feet of the impact point when Segaloff started his turn (without even taking into account the fact that Segaloff's vehicle was struck forward of the "A" pillar as he started across the northbound lane). Based on Segaloff's testimony as to where he started to turn, he would have had at least 308 feet of sight distance and FitzPatrick therefore attributed Segaloff's failure to see claimant's vehicle to Segaloff's failure to slow down and look before he started his turn. He posited that even if Burdett was correct and Segaloff had started his turn from a point where he only had 160 feet of sight distance, it is "inexplicable" that Segaloff could not have seen claimant's vehicle if he in fact had been looking.

FitzPatrick testified that the accident history reflected in claimant's exhibits (Exs. 30 and 31) was "unfortunately not abnormal" for an intersection between a State highway and a county road where, as here, the State highway carried an average of 7,500 vehicles per day. He also observed that there were thousands of similar intersections in the State system, even given the complicating factors of the acute approach angle to the left turn, the curve to the right and the presence of the deli on the corner generating entering and exiting traffic. While he allowed that it is always "nice" to have a left turn lane, this intersection was constrained by the limited right-of-way, requiring acquisition of additional property to construct an additional lane. He stated that any construction project must be cost-effective and concluded that, given the adequate sight lines and the accident history at the subject intersection, such a project could not be justified.

Questioned by defense counsel as to whether DOT conducted an adequate study of the intersection, FitzPatrick maintained that anytime a project was being considered for submission to the Safety Goal Team, accident history would be the first thing reviewed. He stated it was "implicit" in the documents submitted by claimant describing the activity around this intersection in the years leading up to claimant's accident (Exs. 1 through 17), that the accident history was examined because it was not possible to make a proposal for a safety improvement without basing it on accident history.

As to the placement of the break in the centerline, FitzPatrick agreed with claimant's counsel that it would be possible to extend the line farther north by simply adding the location to the lane striping contract that is let every other year, but he maintained that the line here was properly placed. He was not sure it would make the intersection any safer and opined that extending the line beyond the point where a safe turn was possible could encourage drivers to make the turn early.

FitzPatrick described Harwood as a strong advocate for his area (Orange County). He stated that all of the investigators in the Traffic and Safety Group were expected to push as hard as they could for projects in their particular area and that Harwood's goal was for 100% of the available funding to go to Orange County. Notwithstanding Harwood's advocacy, FitzPatrick was not convinced that construction of a left turn lane would have had a positive effect on the accident experience at this intersection. While he noted that it would have reduced rear-end accidents, it would have made it more difficult for drivers to turn from Sarah Wells Trail onto northbound Route 208 because they would have had to then clear two lanes of traffic coming from the right with the vehicles in the turning lane blocking the line of sight to the northbound through lane. He observed that the DOT receives many complaints and suggestions and, while they review everything, they are not bound by what is suggested to them. Even suggestions made by an investigating engineer may not be warranted by the accident experience, not justified by benefit/cost analysis, or perhaps even generate a greater problem than is sought to be solved.

* * *

The claim alleges that the proximate cause of claimant's accident was the negligent design of the intersection and that it lacked required warning signs and traffic control devices, with the result that northbound motorists do not have a clear line of sight or adequate warning of the intersection.

The allegation of negligent design, although prominent in the claim, was not directly addressed at trial and there was no indication that the design of the intersection was contrary to whatever standards applied in 1937. Further, there was never a substantial reconstruction of the highway that would bring more modern design standards into play (see Fan Guan v State of New York, 55 AD3d 782 [2008]; Trautman v State of New York, 179 AD2d 635 [1992] and cases cited at 636), even assuming that modern design standards would prohibit construction of an intersection on a State highway at a 135 to 140 degree angle.

As to the contention that the signs and traffic control devices (including pavement markings) at the intersection were inadequate and contributed to the causation of the accident, the court notes initially that given both drivers' long-standing familiarity with Route 208 in this area and specifically with the intersection with Sarah Wells Trail, any failure to have installed additional or different signs or devices cannot be deemed a proximate cause of the accident to even the slightest extent (Atkinson v County of Oneida, 59 NY2d 840 [1983]), and the court finds that "additional warnings or road markings surely would have made no difference" (Gilberto v Town of Plattekill, 279 AD2d 863 [2001]; cf. Cianciola v State of New York, 38 AD3d 1296 [4th Dept]). Moreover, there was absolutely no competent evidence that the signs and pavement markings in place did not conform to either the Manual of Uniform Traffic Control Devices or to proper highway engineering practice.

The court further finds that there was no probative evidence in support of the contention that the sight distance at the intersection was inadequate for drivers exercising ordinary care (Boyce Motor Lines, Inc. v State of New York, 280 App Div 693 [1952] affd 306 NY 801 [1954]). Claimant's proof in this regard was unconvincing and the photographic evidence belied any contention that a driver intending to make a left turn with appropriate care - including slowing and coming to a stop, if necessary, before turning - could not see approaching southbound traffic for a more than sufficient distance. To the contrary, what is indicated by the evidence is that Segaloff did not stop or almost stop his vehicle prior to attempting to cross the southbound lane of Route 208. Rather he attempted to cross the lane without slowing and without looking, perhaps occasioned by his stated belief that he, not southbound Route 208 traffic, had the right-of-way. As FitzPatrick asserted, the contention that the Segaloff vehicle was traveling at an appreciably lesser rate of speed than claimant's vehicle was negated by all of the other evidence, including photographs, the damage to the two vehicles and the final placement of the vehicles post-accident.

Much of claimant's trial presentation was directed at the nature and extent of DOT's investigation into conditions at the intersection following complaints from the public, and the fact that the investigation was inadequately documented (from defendant's point of view) or was simply inadequate (from claimant's point of view). Claimant correctly argued that the qualified immunity accorded the State for engineering decisions can be overcome by showing that a decision was made without adequate study or lacked a rational bases (see generally Friedman v State of New York, 67 NY2d 271 [1986]) and contended that the documentary proof in the record concerning whatever study led to the decision that the intersection required no changes was inadequate to support a finding of immunity. Claimant is also correct in contending that mere reference to DOT studies without submission of the study itself is insufficient (Cordero v City of New York; 112 AD2d 914 [1985]; see also Ernest v Red Cr. Cent. School Dist., 93 NY2d 664 [1999]; Cordts v State of New York, 125 AD2d 746 [1986]).

However, the defense of qualified immunity is not implicated in this case because claimant failed to establish that the decision to take no action at the intersection after placement of the warning signs in the late 1990's and the continuing efforts to trim the brush in the State right-of-way constituted negligence (see Dahl v State of New York, 13 Misc 3d 590, 600 affd45 AD3d 803 [2007]). There was no proof that the intersection was not reasonably safe for drivers who obeyed the rules of the road, notwithstanding that its geometric alignment was less than ideal. Neither was there proof that the accident experience at the intersection was so unusual as to warrant corrective action on a priority basis. Indeed, the accident data presented to the court indicated that there was more of a problem with rear-end accidents than with left turn accidents, and while it is apparent that Harwood's suggested remedy - a left turn lane - would have addressed that concern, it is not at all obvious that installation of a left turn lane would have had any effect on accidents caused by northbound drivers failing to yield the right-of-way and crossing the southbound lane without looking or stopping. In the absence of proof of negligence or proximate cause, defendant did not have the burden of establishing entitlement to any sort of immunity.

Accordingly, for the foregoing reasons, the court finds that claimant failed to meet his burden of proof and that the claim must be dismissed on the merits. The Clerk of the Court is directed to enter judgment accordingly.

December 21, 2009

White Plains, New York


Judge of the Court of Claims

1. All quotations not otherwise referenced are from the electronically recorded trial proceedings.

2. The phrase "failure to yield right-of-way" refers to an accident similar to claimant's; i.e., a driver on northbound Route 208 making a left turn onto Sarah Wells Trail and failing to yield to a southbound driver on Route 208, resulting in a collision.