Opinion
# 2011-039-273Claim No. 113161Motion # 2011-039-273Claim No. M-79935M-79936
12-30-2011
GIAMPORTONE v. STATE OF NEW YORK
Synopsis
Defendant's motion for summary judgment and claimant's cross motion for summary judgment are denied. Triable issues of fact remain as to whether the State Trooper's conduct in operating his vehicle during an emergency operation rose to the level of reckless disregard for others and whether the construction zone present on the road at the time of the accident constituted a dangerous condition that was a proximate cause of the accident. Case information
UID: 2011-039-273 Claimant(s): JACK G. GIAMPORTONE, AS EXECUTOR OF THE ESTATE OF CATHERINE GIAMPORTONE, DECEASED Claimant short name: GIAMPORTONE Footnote (claimant name) : Defendant(s): STATE OF NEW YORK Footnote (defendant name) : Third-party claimant (s): Third-party defendant (s): Claim number(s): 113161 Motion number(s): M-79935, M-79936 Cross-motion number(s): Judge: James H. Ferreira Gerstenzang, O'Hern, Hickey, Sills & Gerstenzang Claimant's attorney: By: Peter J. Hickey, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Michael C. Rizzo Assistant Attorney General Third-party defendant's attorney: Signature date: December 30, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
This claim was filed with the Chief Clerk of the Court of Claims on January 3, 2007. In it, claimant, as executor of the estate of Catherine Giamportone (hereinafter decedent), seeks damages for alleged personal injuries, pain and suffering and wrongful death sustained by decedent arising from a traffic accident that occurred on December 20, 2005 at the intersection of State Route 299 and New Paltz Road in the Town of Lloyd, Ulster County. Decedent was attempting to make a left-hand turn from New Paltz Road - where it intersects with Route 299 from the north - onto Route 299 when her vehicle was struck by a New York State Police vehicle that was traveling westbound on Route 299 and was operated by Trooper Dennis Hastings. Decedent and her sister Nancy Luca, who was riding as a passenger in decedent's car, were both killed as a result of the accident. Claimant alleges that Hastings was negligent and reckless in operating his vehicle and that defendant maintained State Route 299 in a dangerous, hazardous and unsafe condition inasmuch as construction vehicles obstructed drivers' visibility at that intersection. Issue was joined, and defendant now moves for summary judgment dismissing the claim. Claimant opposes the motion and cross-moves for partial summary judgment.
Summary judgment is a drastic remedy which should only be granted where there are no doubts as to the existence of a triable issue of fact (see Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]; Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Stukas v Streiter, 83 AD3d 18, 23 [2011]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Reyes v Arco Wentworth Mgt. Corp., 83 AD3d 47, 50 [2011]). If the proponent's burden is met, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324). In considering a summary judgment motion, the Court "must view the evidence in a light most favorable to the nonmoving party and accord that party the benefit of every reasonable inference from the record proof, without making any credibility determinations" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [2011]; Dorival v DePass, 74 AD3d 729, 730 [2010]).
As an initial matter, although defendant has submitted numerous exhibits in support of its motion, it has failed to submit a copy of the claim, as required by CPLR 3212 (b).Ordinarily, such a failure requires denial of the motion without prejudice (see Crossett v Wing Farm, Inc., 79 AD3d 1334, 1335 [2010]; Sanacore v Sanacore, 74 AD3d 1468, 1469 [2010]). However, because all of the pleadings were provided by claimant in support of his cross motion, the Court finds that the record is sufficiently complete for it to address defendant's motion and will excuse defendant's failure to comply with CPLR 3212 (b) (see Crossett v Wing Farm, Inc., 79 AD3d at 1335; Hudson v State of New York, __ Misc 3d __, __ , 937 NYS 2d 529, 532-533 [Ct Cl 2011]).
The claim that defendant has attached to its motion is, in fact, a nearly identical claim that was filed by claimant in 2006 and dismissed, pursuant to a stipulation of conditional dismissal and order, in 2007.
Turning first to claimant's allegations with respect to the conduct of Trooper Hastings, it is well-settled that, "[w]hen a police vehicle is involved in an emergency operation such as pursuing someone who is in violation of the law, the driver is entitled to qualified immunity unless he or she acts with 'reckless disregard for the safety of others' " (Green v State of New York, 71 AD3d 1310, 1310 [2010], quoting Vehicle and Traffic Law § 1104[e]; see Saarinen v Kerr, 84 NY2d 494, 501 [1994]; Gonzalez v Zavala, 88 AD3d 946, 947-948 [2011]). This standard requires proof that the officer "intentionally committed 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" (Badalamenti v City of New York, 30 AD3d 452, 453 [2006]; see Saarinen v Kerr, 84 NY2d at 501). A momentary lapse in judgment, alone, does not rise to the level of the recklessness required to support a finding of liability (see Szczerbiak v Pilat, 90 NY2d 553, 557 [1997]).
In support of its motion, defendant has submitted Hastings' deposition and trial testimony from a related Supreme Court action, wherein Hastings testified that he has been employed by the State Police for 22 years, works as a traffic enforcement trooper and, as of the time of the accident, had received 40 hours of training in the operation of an emergency vehicle. On the day of the accident, he was on a routine traffic enforcement patrol and was driving a marked Chevrolet Tahoe equipped with a rotating red roof light and siren. The siren had two modes, a "wail" mode that made a long wail and a "yelp" mode that made "more of a chirping sound" (Defendant's Exhibit 4, at 101). Around 12:30 P.M., Hastings was traveling eastbound on Route 299. The weather was clear and cold and the road was dry, straight and flat. He observed a westbound vehicle traveling 71 miles per hour, in excess of the posted speed limit of 55 miles per hour, and decided to effectuate a traffic stop. He activated his emergency lights and siren, executed a three-point turnaround and began to travel westbound on Route 299. Hastings testified that his siren was in the "wail" mode. The speeding vehicle was about one-tenth of a mile ahead of Hastings. As Hastings came to the intersection of Route 299 and New Paltz Road, he saw two construction vehicles - a dump truck and a piece of excavating equipment - parked on the north shoulder of Route 299 - on his right - between the guide rail and the white line. As he approached the construction vehicles, he activated or "covered" the brake and began to slow down (Defendant's Exhibit 4, at 114, 133). Hastings testified that his "foot was continuously on the brake" as he was approaching the intersection (Defendant's Exhibit 4, at 140). As he approached the intersection, decedent's vehicle "appeared in [his] lane literally out of nowhere" and Hastings was unable to avoid colliding with it, despite braking and turning slightly to the left (Defendant's Exhibit 4, at 114). He testified that his sight was obstructed by the construction vehicles and he was unable to see the intersection of Route 299 and New Paltz Road where it intersects Route 299 from the north, or any traffic egressing from that road. He acknowledged that he was familiar with that intersection and knew that New Paltz Road was beyond the construction vehicles. He also acknowledged that, based upon the high volume of traffic on Route 299 and the number of intersecting roads there, he "wouldn't be surprised that there are a lot of accidents at that intersection" (Defendant's Exhibit 6, at 30).
Defendant also submitted the trial testimony of Shane Conklin, who, at the time of the accident, was an investigator with the New York State Police collision reconstruction unit. Conklin testified, in relevant part, that he calculated the respective sight distances of the parties - the distances that they would be able to see from a specific location on the roadway - based upon the location of the dump truck. He found that decedent's sight distance would have been limited to 370 feet looking east if she was stopped at the stop line on New Paltz Road. Likewise, he concluded that Hastings would not have seen decedent's vehicle until he was 342 feet away from it. Conklin calculated the pre-impact speed of Hastings' vehicle to be 78-87 miles per hour and the speed of decedent's vehicle to be 13-15 miles per hour at the time of impact. Conklin then concluded that, based upon these speeds, decedent would not have been able to see Hastings at the time she left the intersection, and Hastings would not have been able to see her. As part of his investigation, Conklin downloaded data from the Tahoe's on-board Crash Data Retrieval System. This data established that: (1) five seconds before its airbag deployed, the Tahoe was going 86 miles per hour and the brake was engaged, (2) four seconds before deployment, the Tahoe was going 85 miles per hour and the throttle was engaged at 11%, (3) three seconds before deployment, the Tahoe was going 85 miles per hour and the throttle was engaged at 59%, (4) two seconds before deployment, the Tahoe was going 86 miles per hour and the throttle was engaged at 59%, and (5) one second before deployment, the Tahoe was going 75 miles per hour and the brake was engaged.
Defendant's submissions also include the trial testimony of Eugene Camerota and an affidavit from William Logan, both licensed professional engineers. In relevant part, Camerota testified that, based upon his review of the evidence and his own accident reconstruction, decedent's sight distance from the fog line of Route 299 looking east would have been 475 feet, and Hastings' sight distance of New Paltz Road would have been, at minimum, 406 feet. Camerota surmised that Hastings would have been able to see decedent's vehicle if she was stopped at either the fog line of Route 299 or the stop line of the north segment of New Paltz Road. He found that, taking into account drag factor, the speed of the vehicle and Hastings' reaction time, the Tahoe's stopping distance was 333 to 353 feet. Given these calculations, Camerota opined, to a reasonable degree of engineering certainty, that both parties had "sufficient sight distance to see each other" and avoid a collision and that Hastings "had ample stopping distance to stop his vehicle" (Defendant's Exhibit 11, at 563). In turn, Logan, utilizing the to-scale drawing prepared for Conklin's Accident Reconstruction Report, concluded that "500 feet of unobstructed sight distance was available to the operators of both vehicles" (Logan Affidavit ¶ 7). He explained that, pursuant to the NYS Manual of Uniform Traffic Control Devices (hereinafter MUTCD), sight distances at intersections are the travel distances for which approaching vehicles would be continuously visible from a point 12 feet in advance of the nearest travel lane and that, as such, sight distances should be measured based upon the vehicle being stopped immediately prior to the main road travel lane and not, as Conklin measured, from the stop line.
Defendant also submitted testimony from Robert DeHuff, the New York State Department of Transportation (hereinafter DOT) Engineer in Charge of the construction project, that he saw Hastings' vehicle drive by and that he believed that he heard one "blip" of a siren (Defendant's Exhibit 7, at 392). He heard the thump of the collision about five seconds later. DeHuff further testified that, after the accident, he stood at the intersection and looked back towards the dump truck and excavator. He "noticed that there was a small blind spot [created by the dump truck] looking back to the east coming out of the north New Paltz Road exit" (Defendant's Exhibit 7, at 404-405). In addition, defendant has submitted a copy of the incident report prepared by the State Police. The Court finds that the report itself does not constitute competent evidence inasmuch as it was compiled by an officer who was not an eyewitness to the accident and contains hearsay statements concerning disputed issues of fact (see Quinones v New England Motor Frgt. Inc., 80 AD3d 514, 515 [2011]; Figueroa v Luna, 281 AD2d 204, 205 [2001]). However, appended to the report are several supporting depositions signed by the witnesses under penalty of perjury, which the Court finds are sufficiently reliable to be considered in assessing the motion (see Kaufman v Quickway, Inc., 14 NY3d 907, 908 [2010]). In his supporting deposition, Hastings stated that his siren was on "approximately 30 to 60 seconds" before the accident (Defendant's Exhibit 12, at Hastings Deposition). Four witnesses who provided statements to the police indicated that they heard a police siren before the accident. In particular, one witness stated that he heard the police vehicle make "a few abrupt noises," another stated that he heard "the short sound of a siren," a third witness heard two seconds of "the beginning of the wail cycle" before the crash and a fourth witness stated that he could "definitely" hear the siren (Defendant's Exhibit 12, at Jewett Deposition, Grinberg Deposition, Weiss Deposition, Dizney Deposition). Another witness who observed the accident stated that he did not hear any siren.
The Court finds that the evidence submitted by defendant as detailed above is insufficient to establish its entitlement to judgment as a matter of law on this aspect of the claim. Although the evidence establishes that Hastings was engaged in an emergency operation at the time of the collision (see Vehicle and Traffic Law § 114-b), defendant failed to meet its initial burden of establishing that Hastings' conduct did not rise to the level of reckless disregard for the safety of others. To be sure, the Vehicle and Traffic Law authorizes the driver of an authorized emergency vehicle to "[e]xceed the maximum speed limits so long as he does not endanger life or property" and Hastings' exceeding the speed limit, alone, cannot constitute a predicate for liability (Vehicle and Traffic Law § 1104 [b] [3]; see Saarinen v Kerr, 84 NY2d at 503). However, in this case, there was evidence that he was proceeding through a construction zone and approaching an intersection that he was familiar with and knew had a high volume of traffic, factors which may contribute to a finding of recklessness (see e.g. Ferrara v Village of Chester, 57 AD3d 719, 720 [2008]; Spalla v Village of Brockport, 295 AD2d 900, 900-901 [2002]). Defendant's submissions also failed to eliminate questions of fact as to whether Hastings accelerated, rather than slowed down, as he passed the construction vehicles and approached the intersection and whether his view of the intersection was obstructed (see Burrell v City of New York, 49 AD3d 482, 483 [2008]; Badalamenti v City of New York, 30 AD3d 452, 453 [2006], supra; compare Woodard v Thomas, 77 AD3d 738, 739-740 [2010]; Green v State of New York, 71 AD3d 1310, 1311-1312 [2010], supra). Moreover, there was conflicting testimony regarding whether Hastings activated the siren on his vehicle and, if so, in what mode and for how long before the accident. Given defendant's failure to establish its entitlement to judgment as a matter of law, the Court need not consider the evidence submitted by claimant in opposition on this point (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 851 [1985]; Pearson v Dix McBride, LLC, 63 AD3d 895, 895 [2009]).
Additionally, the Court does not find that the evidence submitted by claimant in support of his cross motion warrants granting summary judgment in claimant's favor on the issue of recklessness or any other issue. For the most part, claimant has submitted materials that duplicate the materials submitted by defendant, which, as discussed above, raise issues of fact for trial. The Court finds that the additional evidence submitted by claimant - including photographs, maps and an excerpt from the New York State Police Field Manual - is insufficient to establish that claimant is entitled to judgment as a matter of law. Accordingly, claimant's cross motion is denied.
Turning to claimant's allegations concerning defendant's actions with respect to the construction project, the State has " 'a nondelegable duty to maintain its roads and highways in a reasonably safe condition' " (Levine v New York State Thruway Auth., 52 AD3d 975, 976 [2008], quoting Nurek v Town of Vestal, 115 AD2d 116, 116-117 [1985]; see Friedman v State of New York, 67 NY2d 271 [1986]). However, "the State is not an insurer of the safety of its roads and no liability will attach unless the ascribed negligence of the State in maintaining its roads in a reasonable condition is a proximate cause of the accident" (Clark v State of New York, 250 AD2d 569, 569 [1998]; see Ring v State of New York, 270 AD2d 788, 789 [2000]). Moreover, liability will not attach unless the State created the dangerous condition or had actual or constructive notice of the condition and then failed to take reasonable measures to remedy it (Hynes v State of New York, 301 AD2d 628 [2003]; Gillooly v County of Onondaga, 168 AD2d 921, 921 [1990]). Notably, defendant's duty to maintain its roads in a reasonably safe condition "is not excused because the dangerous conditions are attributable to the acts and/or omissions of defendant's contractors" (Levine v New York State Thruway Auth., 52 AD3d at 976-977; see Smart v Wozniak, 58 AD2d 993, 994 [1977], lv denied 43 NY2d 643 [1977]).
Defendant's evidence establishes that the construction that was ongoing at the time of the accident was being performed pursuant to a DOT contract with Planert Utility to install a traffic light at the intersection of Route 299 and New Paltz Road where it intersects Route 299 from the south. Work had started on the project one to two weeks prior to the accident and, on the morning of the accident, Planert employees had excavated the foundation hole, loading the excavated material onto the dump truck. Planert employees vacated the area around 11:45 A.M. and proceeded to the staging area about 400 feet away, leaving the construction equipment at the site. It is undisputed that, at the time of the accident, the equipment was located off the travel portion of the roadway and was parked approximately 262 feet east of the center line of the north segment of New Paltz Road. There was a row of orange traffic cones present on the fog line that extended approximately 312 feet east from the rear of the truck and two construction signs, posted on the north shoulder of Route 299 approximately 1000 feet and 500 feet east of the work zone, advising westbound travelers of the work zone ahead. No flaggers were present on the day of the accident.
DeHuff testified that he arrived at the construction site at about 11:15 A.M. on the morning of the accident. He saw where the dump truck was parked but did not ask Planert to move it and did not see anything that suggested a potential safety problem at that time. He further testified that he did not observe motorists having any problems proceeding from the north segment of New Paltz Road onto Route 299. DeHuff testified that he was not informed prior to the accident that the dump truck was creating an obstruction in the roadway.
In his affidavit, Logan opined that the area of the intersection of Route 299 and New Paltz Road as it existed at the time of the accident "complied with reasonable and accepted traffic engineering and highway safety practices" (Logan Affidavit ¶ 3). He explained that, pursuant to Section 232.1 of the MUTCD, having 500 feet of unobstructed sight distance was not considered "limited" for a 55 mile-per-hour highway and "does not require the installation of an intersection warning sign or any other traffic control device" (Logan Affidavit ¶ 7). He further asserted that the construction-related signage present on the date of the accident was adequate and complied with the MUTCD and that it was reasonable for the DOT not to utilize flagmen at the location, as the construction work was off the traveled portion of the roadway and flagging would have been potentially unsafe in a high-speed roadway such as Route 299. Likewise, Camerota testified that the placement of the cones and the construction signs were in compliance with the requirements of the MUTCD. Camerota also testified that, as the dump truck was off the travel portion of the road, its location was in compliance with good and accepted safety standards.
The Court finds that defendant's submissions are insufficient to establish its entitlement to judgment as a matter of law on this aspect of the claim. To the extent that the above evidence establishes that the construction zone was maintained in conformance with published safety guidelines and engineering standards, such evidence is not necessarily dispositive of the claim, "though constituting some evidence of due care" (Adam v Town of Oneonta, 217 AD2d 894, 895-896 [1995]; see Miner v Long Is. Light. Co., 40 NY2d 372, 381 [1976]). Contrary to the opinions of Logan and Camerota, Conklin, who was present at the accident scene, personally observed it and appears to be qualified to provide an opinion as to the sight distances of the two drivers, testified that both drivers' vision was obscured by the dump truck. This opinion is consistent with Hastings' testimony, as well as DeHuff's testimony that, in his view, the dump truck created a blind spot. Importantly, "the extent to which [Conklin's] opinion differs from other authoritative sources, and the details of its technical foundation, are matters that go to weight and credibility and are better left to the trier of fact to evaluate" (Adam v Town of Oneonta, 217 AD2d at 896). Thus, factual issues remain as to whether the construction zone constituted an unreasonably dangerous condition created by the State and whether the dump truck obstruction was the proximate cause of the collision (see Finn v Town of Southampton, 289 AD2d 285, 286 [2001]).
Finally, the Court rejects defendant's argument that it is entitled to summary judgment because the actions of its employees in deciding not to take remedial measures at the construction site are entitled to qualified immunity. To be sure, the State is accorded a qualified immunity from liability arising out of a highway planning decision (see Friedman v State of New York, 67 NY2d at 283; Weiss v Fote, 7 NY2d 579, 584-589 [1960]; Lifson v City of Syracuse, 41AD3d 1292, 1293 [2007]). However, "the doctrine of qualified immunity will not apply where the [State] has not conducted a study which 'entertained and passed on the very same question of risk'" (Kuhland v City of New York, 81 AD3d 786, 787 [2011], quoting Weiss v Fote, 7 NY2d at 588). Here, defendant submitted no proof that, at the time of the accident, the State had made determinations regarding the dump truck's location, or the construction site as a whole, that were the "result of a deliberate decision-making process" (Holmes v City of Elmira, 251 AD2d 844, 845 [1998]; see Madden v Town of Greene, 64 AD3d 1117, 1120 [2009]). At most, the evidence submitted by defendant indicates that, on December 20, 2005, before the accident, DOT was informed of a 911 complaint regarding the work being done and the safety at the subject intersection. A DOT highway maintenance supervisor went to the scene, surveyed it and determined that "[t]he signage and [sight] distance looked good," there was no equipment in the roadway and traffic was moving freely (Defendant's exhibit 12, at Augustine Deposition). Defendant has failed to show that the inspector's at-scene determinations regarding the safety of the construction site are the type of decisions that are immune from judicial interference (see Winney v County of Saratoga, 8 AD3d 944, 944 [2004]; Bailey v Honda Motor Co., 144 AD2d 119, 120-121 [1988], lv denied 73 NY2d 705 [1989]; compare Smythe v Woods, 41 AD3d 1130, 1131-1132 [2007]).
Accordingly, it is hereby ORDERED that Motion Nos. M-79935 and M-79936 are denied.
December 30, 2011
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Defendant's Notice of Motion dated May 19, 2011 and supporting papers and exhibits attached thereto;
2. Defendant's Memorandum of Law dated May 19, 2011;
3. Claimant's Affidavit in Opposition sworn to July 25, 2011 and exhibits attached thereto;
4. Claimant's Notice of Motion dated May 19, 2011 and supporting papers and exhibits attached thereto;
5. Defendant's Affidavit in Support and in Opposition sworn to July 25, 2011 and supporting exhibit attached thereto;
6. Defendant's Reply Affidavit sworn to September 20, 2011; and
7. Claimant's Reply Affidavit sworn to September 21, 2011 and exhibit attached thereto.