New York State Court of Claims

New York State Court of Claims

ALVAREZ-CANEL v. THE STATE OF NEW YORK, #2009-045-500, Claim No. 114020


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):

Claimant’s attorney:
Jean Marie Hazelton Law Firm, P.C.By: Jean Marie Hazelton, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy. John M. Shields, Esq.
Third-party defendant’s attorney:

Signature date:
March 6, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


A bifurcated trial concerning the issue of liability only was held in this matter on October 22, 2008. The subject claim arose on August 2, 2005 at approximately 7:15 p.m. when a New York State Police vehicle came into contact with claimant, Carlos Alvarez-Canel, while Mr. Alvarez-Canel was walking across Route 24.

Claimant did not testify at the trial, however his deposition transcript was admitted into evidence.[1] He testified at his deposition that on the day of the accident he was returning from work on a bus. He exited the bus at approximately 6:15 p.m. at the stop in front of a McDonald’s in Riverhead on Route 24. He described the weather conditions as perfect and stated that it was only a “little bit” light out. After exiting the bus he walked alongside Route 24 approximately thirty meters toward the Flanders traffic circle before he began to cross Route 24. Claimant testified that he crossed Route 24 every day at the same location for several months prior to the accident. The location where he crossed the street was not marked as a pedestrian crosswalk. He described the traffic on Route 24 on the date of the accident as heavy and as moving slowly. Claimant stated that immediately prior to the accident he walked across one lane of traffic and then stopped on the solid yellow line in the middle of the street. He explained that he waited on the yellow line for a break in the traffic in front of him, which was approaching from his right, so that he could finish crossing the street. He stated that he was only looking to his right and when there was a break in the traffic he proceeded to cross the street. Upon crossing the street he testified that he felt an impact. He testified that he did not see the vehicle that collided into him. He also testified that he did not see any lights or sirens prior to the impact.

Defendant called State Police Trooper Charles Knapp Jr. to testify at trial. Trooper Knapp has been employed by the New York State Police since 1998. He has worked there continuously except for the time period when he was activated to the Military Security Police from 2001 to the end of 2002. He is currently stationed in Riverhead in the Town of Southampton. He testified that on August 2, 2005 he was working on a flex tour from 12:00 p.m. to 12:00 a.m. patrolling Riverhead in a vehicle by himself. He testified that he received a radio call that a stolen vehicle with passengers was stopped on Lake Avenue off the Flanders traffic circle. In response he activated his lights and sirens and proceeded North on Route 24. He described Route 24 as a North/South two-lane street with a middle turning lane and no shoulder. He explained that at the time of the accident traffic was backed up, so he drove in the middle turning lane with his lights and sirens on at approximately fifteen to twenty miles per hour. He stated that there was a forty miles per hour posted speed limit on Route 24. As he was driving he heard a “loud thump” and immediately stopped, turned off his lights and sirens, exited his vehicle, looked underneath and saw an Hispanic male. He testified that he did not observe claimant prior to the impact. He continued that when he examined his vehicle after the accident he noticed that the right spot light was missing and the right rearview mirror was dislodged. Trooper Knapp stated that he advised police headquarters of the accident and requested an ambulance for claimant. Trooper Knapp also testified that there was a pedestrian crosswalk approximately one mile from where claimant exited the bus.

Defendant submitted into evidence the supporting affidavits of Peter N. Kromhout who witnessed the accident (see Def Exh H). In his affidavit Mr Kromhout stated, inter alia, that he observed an Hispanic male cross into the center turning lane and then strike the side of a New York State Police vehicle. Mr. Kromhout observed a police vehicle driving in the center turning lane with its emergency lights on prior to the accident. Additionally, the supporting affidavit of James W. Felton was submitted (see Def Exh I). Mr. Felton stated, inter alia, that while his vehicle was stopped in traffic on Route 24, he observed a police vehicle proceeding in the turning lane. He also observed an Hispanic male appear in front of his vehicle, who then stepped into the middle of the roadway without looking. Mr. Felton stated that he heard the sound of what he believed to be the man he saw in front of his vehicle being struck by the police vehicle.

Vehicle and Traffic Law § 1104(b) permits the driver of an authorized emergency vehicle to proceed past a red light or stop sign, exceed posted speed limits and disregard regulations governing directions of movement or turning directions. However, the driver still has the duty to drive with due regard for the safety of all persons and is not relieved from the consequences of his or her reckless disregard for the safety of others. The standard of reckless disregard requires more than a showing of lack of due care under the circumstances. “It requires evidence that ‘the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow’ and has done so with conscious indifference to the outcome” (Saarinen v Kerr, 84 NY2d 494, 501 [1994], quoting Prosser and Keeton, Torts § 34, at 213 [5th ed]).

Claimant has failed to establish that defendant acted with reckless disregard for the safety of others. The credible evidence at trial established that Trooper Knapp was driving in the center lane, that he was driving well below the posted speed limit and that he had activated his lights and sirens when he began his response to the police call. Additionally it was established that claimant was not within the crosswalk at the time of the accident and that claimant was injured when he attempted to cross Route 24 in the middle of the street where an approaching vehicle would not expect to encounter a pedestrian (see Vehicle and Traffic Law § 1152; Johnson v Lovett, 285 AD2d 627 [2d Dept 2001]).

Based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, that defendant’s agent acted in reckless disregard of the safety of others while he was responding to an emergency in this action. Accordingly, the claim is hereby dismissed in its entirety. Any motion upon which the Court had previously reserved or which remain undecided are hereby denied.

The Clerk of the Court of Claims is directed to enter judgment accordingly.

March 6, 2009
Hauppauge, New York

Judge of the Court of Claims

[1]. The transcript was admitted into evidence, over objection, pursuant to CPLR 3117 (a) (3) (iv) which permits the use of a party’s deposition when the party offering the deposition has been unable to procure the attendance of the witness by diligent efforts.