Opinion
Claim No. 134335
12-05-2022
Trisha Oliveras, Claimant, v. The State of New York, Defendant.
For Claimant: Pulvers, Pulvers & Thompson L.L.P. By: Shachar Hadar, Esq. For Defendant: Letitia James, New York State Attorney General By: Felice V. Torres Esq, Assistant Attorney General
Unpublished Opinion
For Claimant: Pulvers, Pulvers & Thompson L.L.P. By: Shachar Hadar, Esq.
For Defendant: Letitia James, New York State Attorney General By: Felice V. Torres Esq, Assistant Attorney General
David A. Weinstein, J.
Claimant Trisha Oliveras filed her claim with this Court on January 23, 2020 , seeking damages for personal injuries she sustained on February 28, 2018 when her vehicle was struck by concrete bricks and debris as she drove on the East Mosholu Parkway Southbound at or near Exit 12 of Interstate Highway 87 in the Bronx ("I-87") (Claim ¶¶ 1, 26). According to the allegations in the claim, defendant State of New York was negligent in maintaining an overpass retaining wall in this vicinity, which let the debris, stone, concrete, brick, and other materials to fall from the wall and strike plaintiff's vehicle as it traveled on the roadway below (id.).
According to the allegations in the Claim, a notice of intention was served on the Attorney General on May 22, 2018, thus extending claimant's time to file the claim within two years of the date of accrual in accordance with Court of Claim Act § 10(3) (Claim ¶ 2).
Defendant now moves for summary judgment, arguing that it was not negligent in maintaining the retaining wall, nor was it notified of any defective condition concerning the wall prior to claimant's accident (Affirmation in Support of Felice V. Torres, Esq., dated June 23, 2022 ["Torres Aff"] ¶ 6). Defendant supports its motion with the transcript of claimant's February 4, 2021 deposition (id., Ex E ["Oliveras Tr"]), along with the transcript of the February 18, 2022 deposition of James Flynn, an engineer employed by the New York State Department of Transportation ("DOT") (id., Ex F ["Flynn Tr"]), and a report of the accident containing photos of the wall at issue, referenced during Flynn's deposition (id., Ex G [HNTB Emergency Inspection Report, dated March 1, 2018 with photos]). In opposition, claimant has provided, among other things, the March 10, 2021 deposition transcript of DOT engineer Jaimin Patel and claimant's verified bill of particulars (Affirmation in Opposition of Schachar Hadar, Esq., dated September 2, 2022 ["Aff in Opp"], Ex. A and Ex B ["Patel Tr"]). Defendant has submitted an affirmation of counsel in reply.
This evidence was, in summary, as follows:
Deposition of Trisha Oliveras
Claimant testified at her deposition that she was involved in an accident that occurred on February 28, 2018 at approximately 8:45 a.m. on Mosholu Parkway in the Bronx (Oliveras Tr 13-14). According to Oliveras, she left her home that morning in her 2003 Mitsubishi Outlander SUV to drive to work at Benjamin's Pharmacy and Surgical in the Bronx, where she was employed as a pharmacy technician (id. at 10-12, 15-16). She traveled southbound on the Saw Mill River Parkway and then exited to Mosholu Parkway, which was her daily route to work (id. at 16). Oliveras recounted that she was driving approximately 45 miles per hour, which is the speed limit for this section of the Parkway (id. at 16-17). She was in the left southbound lane and, as she drove under an overpass and was exiting the other side, her vehicle was suddenly struck on its left side and front by gray stone and concrete debris falling out from a retaining wall that was on another overpass adjacent to her route of travel (id. at 17). Specifically, multiple pieces of stone, some as big as two-feet in diameter, struck the front and driver's side of her vehicle, resulting in dents and broken headlights, as well as a punctured tire that occurred when she drove over the debris (Oliveras Tr 22-24).
Claimant explained that she "passed that wall every day on [her] way to work" (id. at 18). On the day prior to the accident, she did not observe anything out of the ordinary about the overpass or its concrete wall (id.). Rather, "[t]he wall was intact and there was nothing on the ground" (id. at 19-20, 47-48). A day or two after the accident, she returned to the scene to take photographs of the wall, which was in the same condition as it was immediately after the accident, with the same debris strewn across the ground beneath the overpass and adjacent to the Mosholu Parkway, but no new debris fell while claimant took the photographs (id. at 18-19, 47-48). Oliveras testified that, when she drove by the wall on the day of the accident, it was the first time she had ever seen debris fall from this location (Oliveras Tr 47-48). She acknowledged that she was unaware of anyone ever making a complaint to the authorities about the wall prior to her accident (id. at 29-30).
Deposition of James Flynn
Flynn is an engineer employed with the DOT as Director of the Office of Structures in the agency's engineering division (Flynn Tr 7). His responsibilities in this position include managing the capital construction and safety and maintenance programs, and overseeing structures such as large and small culverts, sign structures and bridges (id. at 8).
Flynn testified that he is generally aware of claimant's allegations and reviewed the DOT's files concerning the overpass and retaining wall at issue, but had not personally visited the accident location (id. at 9, 11). He confirmed that at the site there is a bridge over most of the parkway (id. at 10-11). Flynn stated that, as a general matter, bridges such as the one involved in claimant's accident are inspected every two years in accordance with federal law (Flynn Tr 13). DOT's Region 11 Office is responsible for inspecting the retaining walls for bridges in the New York City area, and such inspections are conducted at the discretion of the Regional Office (id. at 13-14).
Flynn stated on the basis of his review of the DOT's files that the overpass retaining/barrier wall at issue was constructed sometime around 1950 (id. at 14-15). Further, he said that DOT has no record of the retaining wall being struck by a vehicle prior to Oliveras' accident, nor is there a police report in the DOT's files concerning the impact damage to the wall that occurred at the time of the accident (id. at 15).
In the course of his file review, Flynn learned of a March 1, 2018 report indicating that on the day claimant was hit by debris, the retaining wall where the incident took place had been struck by another vehicle. The report, prepared by professional engineering firm HNTB was set forth in a letter sent to the now-retired Luis Calderon, DOT's acting director of structures before Flynn held the position, with copies to DOT professional engineers (id. at 16-19).
The "SUBJECT" of the letter advised that HNTB had performed an "Emergency Inspection" on "Wall Number:1-089-078; Mosholu Parkway Southbound Exit 12 (Henry Hudson Pkwy S/Saw Mill Pkwy N) off the Northbound Major Deegan Expwy, at Panel 3" (Torres Aff, Ex G). The text of the letter reads as follows:
"As per your request via e-mail on March 1, 2018, HNTB conducted an emergency inspection of retaining wall WIN 1-087-079 located at Mosholu Parkway Southbound Exit 12 (Henry Hudson Pkwy SB/Saw Mill river Pkwy North) of the NB-MDE (Major Deegan Expwy) to assess the condition of the wall structure after it was struck by a truck traveling on the SB Mosholu Parkway above at Wall Panel No.3 of the above-mentioned WIN on February 28, 2018.
An emergency Inspection was performed by Ray Gramy, P.E. on March 1 between 1:00 p.m. and 4:30 P.M. The Upper portion of he Wall Panel #3 exhibits sheared barrier and collapsed masonry for approximately 10' long x up to 6' high. As a result, a temporary concrete jersey barrier was installed by the contractor on the SB Mosholu Pkwy adjacent to impact area. Stones and concrete debris were found on the embankment of the wall adjacent to the Major Deegan. The exposed vertical reinforcing steel within the concrete core of the wall was cut and removed by contractor. The Henry Hudson Pkwy NB roadways along the wall were found clear of debris. The remaining portions of the stone masonry wall were inspected and found to be stable with no signs of distress due to impact damage. The wall is adjacent to BIN 1067030" (Torres Aff, Ex G).
Flynn testified that he understood from this report that the HNTB's investigation had found that the retaining wall at issue was damaged from a vehicle impact (Flynn Tr 20). He drew the same conclusion from photos attached to the report, which depicted concrete debris blasted apart (id. 20). In regard to one of the photos, Flynn said the following:
"The diagonal slope shape is indicative of a yield line failure that is very typical of an impact from a vehicle that's done through research and crash testing, that's a very common shape that you see during crash impact.
When I looked at other photos, I believe in this report, you can see that there's very clean concrete from where there was explosive type impact that separated the concrete in a sheer like fashion, that did not happen, it happened instantaneously, because it was very clean concrete and very good shape. So that's another indicator.
The debris field below from one of the angles, there's a lot of segments of reinforced concrete that was scattered throughout the debris field. So it was - it had to be some sort of explosive event that caused that reinforce[d] concrete to spread through in small segments throughout the lower area.
When I looked at one of the other photos, there appear to be vehicle scrape lines along the inside on some of the stone... Photo one shows you the diagonal yield line, working right to left upwards. The reason there's a right vertical line is because that a contraction joint. Meaning, there's no reinforcement running between the joints there. So that's why it was vertical..." (Flynn Tr 21-24; Torres Aff, Ex G).
On the basis of the photos attached to the HNTB report, Flynn gave his "opinion" that the damage to the wall was caused by impact (id. at 24, Torres Aff, Ex G). He explained that, "it's pretty clear from the indications I've seen that [the damage] was caused by a pretty hard hit onto the barrier by a vehicle" (Flynn Tr 24). He further opined that the damage to the wall could not have been caused by natural wear and tear (id.).
Flynn acknowledged that his review of the DOT files revealed that there was no police report concerning the impact damage to the retaining wall, which he said is not unusual since it is common for vehicles to strike bridges and overpasses and flee the scene in hopes of not having to pay for the damage (id. at 29-31, 42).
Deposition of Jaimin Patel
Patel testified that he is a professional engineer and has worked for the DOT's New York City Regional Office for over 17 years, currently serving in its bridge maintenance department (Patel Tr 6-8). He was involved in the repairs to the concrete retaining wall at issue in claimant's accident (id. at 9-10, 25).
Patel stated that the wall had suffered "impact damage", which he was first made aware of through an e-mail from Joint Traffic Management for New York City ("JTMC") (Patel Tr 10-11, 29). The e-mail was followed by a phone call from JTMC, during which Patel was advised that the City was going to put a barrier in font of the damaged wall to keep traffic from driving off the overpass (id. at 12). During this call, Patel said he came to understand that the wall was damaged by a vehicle impact that "knock[ed] the wall down" (id.). The wall at issue is identified by the DOT as retaining wall No. 1-087079, which is located on I-87.
Patel explained that DOT consultant HNTB inspected the retaining wall soon after the impact and he received a copy of it's Emergency Inspection Report (id. at 17-19). Pursuant to this report, Patel's office issued a work order for repairs (id. at 22-23).
Claimant's Bill of Particluars, Dated September 21, 2020
Paragraph six of the Bill of Particulars is a three page litany of various allegations of negligence against defendant concerning the retaining wall (Aff in Opp ¶ 14, Ex A, ¶ 6). Among other things, claimant alleges that the retaining wall had been collapsing for some time and defendant failed to "place netting, fencing, scaffolding, or other barriers so as to prevent debris, stone, concrete, bricks and other materials from the wall from entering the road and striking vehicles thereon" (id.).
Inspection Reports
In her submission in opposition, claimant provides inspection records for the wall at the accident site produced during discovery, noting that the most recent of such records showed an inspection six years before the accident (Aff in Opp ¶¶ 25-26 & Ex G). In reply, the State notes that Mr. Flynn testified that the overpass was inspected on a regular cycle - although he lacked knowledge as to what that cycle was (see Reply Affirmation ¶ 57, citing Patel Dep at 16).
Discussion
To prevail on its summary judgment motion, defendant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any issues of material fact (Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). Once this showing has been made, 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 (id.).
The State of New York, like any public entity "is under a nondelegable duty to maintain its roads and highways in a reasonably safe condition, and... liability will flow for injuries resulting from a breach of the duty" (Lopes v Rostad, 45 N.Y.2d 617, 623 [1978]; see also Levine v New York State Thruway Authority, 52 A.D.3d 975, 976 [3d Dept 2008] [same]). That duty encompasses the maintenance of the State's bridges, to ensure they are kept in a safe condition (see Matter of Town of Mentz v Dept. of Transp. of State of NY, 106 A.D.2d 870, 872 [4th Dept 1984] [State's duty to maintain its bridges is "elemental"]). The State's responsibility does not only require that it keep the roads themselves safe, but "also applies to conditions [a]djacent to and [a]bove the highway, which could reasonably be expected to result in injury and damages to the users thereof" (Rinaldi v State, 49 A.D.2d 361, 363 [3d Dept 1975]; see also Sanchez v Lippincott, 89 A.D.2d 372, 374 [4th Dept 1982] [State's duty to maintain safe roads "also applies to other conditions which could reasonably be expected to result in injury and damages to the public"]).
Notwithstanding the State's duty, "no liability attaches unless there is actual or constructive notice of the defective condition" (see Harris v Village of E. Hills, 41 N.Y.2d 446, 449 [1977]), which it "thereafter failed to take reasonable measures to correct" (see Fowle v State of New York, 187 A.D.2d 698, 699 [2d Dept 1992]). When the State "fail[s] to diligently remedy [a] dangerous condition[] once it is provided with actual or constructive notice" it may be held liable (Frechette v State of New York, 129 A.D.3d 1409, 1410 [3d Dept 2015]), provided such failure was the proximate cause of the accident that causes claimant injury (see Johnson v State of New York, 27 A.D.3d 1061, 1062 [4th Dept 2006], lv denied 7 N.Y.3d 711 [2006]).
While defendant may negate an allegation of notice by showing that it regularly inspected the property and found no defect, defendant has not presented such evidence here (see e.g. Mavis v Rexcorp Realty, LLC, 143 A.D.3d 678, 679 [2d Dept 2016]). In particular, while it states that the overpass was subject to regular inspections, the only specific evidence of such an inspection in the record took place six years prior to the accident. The mere assertion that it conducted regular inspections does not demonstrate the lack of notice (see Buffalino v XSport Fitness, 202 A.D.3d 902, 903 [2d Dept 2022] ["Mere reference to general practices, with no evidence regarding any specific inspection" insufficient to show lack of constructive notice prima facie]; see also Gibbs v Albee Tomato Co., Inc., 121 A.D.3d 614, 614 [1st Dept 2014] [defendant failed to present prima facie case of lack of notice when it did not submit evidence of "when the area was last inspected prior to the accident"]).
Instead, defendant's central argument is that it could not have had notice of any defect which caused the accident, since the scattering of debris that injured claimant was the result of collision against the wall in question by another vehicle. To support this proposition, it relies on the HNTB letter, and the testimony of Mr. Flynn (see Aff in Supp ¶ 11 ["It is clear from the testimony of the parties and the documents Mr. Flynn relied upon that the State did not have notice of any defect related to the retaining wall in question as the damage to the wall happened as a resuylt of a vehicle hitting it"]).
The first of these documents - the HNTB letter - is unsworn hearsay, and thus cannot sustain the State's burden in the absence of some hearsay exception (see Yassin v Blackman, 188 A.D.3d 62, 66 [2d Dept 2020] [when unsworn police report "has not been certified, and a foundation for its admissibility has not been laid by some other method, the report and its contents constitute inadmissible hearsay" and cannot be proffered as a basis for summary judgment]; Huff v Rodriguez, 45 A.D.3d 1430, 1432 [4th Dept 2007] ["statements contained in the [police] report concerning the cause of an accident constitute inadmissible hearsay unless the reporting officer witnessed the accident, the reporting officer is qualified as an expert, or the statements meet some other exception to the hearsay rule"][citations omitted]). Indeed, since the report's reference to a truck having crashed into the wall is unsourced, it is presumed to be a hearsay statement by a third party, and thus is hearsay within hearsay, and cannot be considered unless an exception to both is presented (see Noakes v Rosa, 54 A.D.3d 317, 318 [2d Dept 2008]).
The State has not pointed to, nor has it laid a foundation for, any hearsay exception which would render admissible the letter itself, or the anonymous report contained within it. As a result, defendant cannot demonstrate its entitlement to summary judgment on this basis.
That leaves the close question of whether Flynn's own testimony may sustain the State's burden. As claimant points out, Flynn did not visit the accident scene, and his testimony - beyond being a conduit for inadmissible hearsay - consists solely of his opinion based on a review of the photograph of the broken wall (see Aff in Opp ¶ 17). Since I find this opinion testimony to be inadmissible, it also cannot establish defendant's prima facie case.
Flynn's testimony is in the realm of expert, not lay, testimony. The conclusions he draws regarding the cause of the accident are not based on personal knowledge or observation, but from his analysis of a photograph taken after the accident. That analysis, which involves such matters as the slope and nature of the break in the wall, and the manner in which the debris was scattered, is not the sort of opinion that can be offered by a lay witness. Defendant, however, never characterized Flynn as an expert so that he could offer such an opinion, or sought to lay a foundation for such.
There is, however, one circumstance in which courts have allowed for opinion testimony of this sort: when employees who performed a post-accident investiation which they are qualified to do so by training and experience (see Greenberg v Yellow Frgt. Sys., 237 A.D.2d 568, 569 [2d Dept 1997] [court "did not err in permitting [detective]... to offer his opinion during cross-examination as to how the accident occurred[, as he] was qualified to render an opinion based on his 23 years of training and experience, including eight years on the Accident Investigation Squad"]; Miller v Alagna, 203 A.D.2d 264 [2d Dept 1994] [police officer able properly allowed to testify about cause of accident based on "21 years of training and experience"], lv denied 84 N.Y.2d 805 [1994]); Hanna v State of New York, 152 A.D.2d 881, 885 [3d Dept 1989] ["the findings and conclusions of the officers who investigated the accident and who, by experience, were well qualified to render opinions as to the cause of the accident, should be given great weight"]; Matter of Fasano v State of New York, 113 A.D.2d 885, 889 [2d Dept 1985] [giving weight to testimony of investigating officer on cause of accident when he had "12 years' experience in investigating vehicular accidents and making determinations as to their causality," and he "conducted an extensive and detailed analysis of the instant accident scene" and thus was "well qualified to render an expert opinion as to the cause of claimant's accident and his opinion was entitled to great weight"]).
These cases all concern trial testimony, and it is not clear if the witnesses were actually deemed experts by the trial court, or simply were allowed to give opinion testimony under the particular circumstances at issue. Whatever the basis, such opinion testimony has been found admissible in such matters.
I find, however, that the foundation required by this caselaw for admission of such "qualified" opinions was not presented in the record before me. In this regard, I find relevant the Second Department's decision in Murray v Donlan (77 A.D.2d 337 [2d Dept 1980], lv denied 52 N.Y.2d 1071 [1981]), in which the Court found a police officer's conclusion as to the cause of an accident to be inadmissible hearsay, and not permitted under an exception to the hearsay rule as a "qualified opinion" (id. at 347). The Court reasoned as follows:
"The crucial question, therefore, is whether the police officer's opinion was qualified. Since the officer had not witnessed the accident his opinion as to its cause had to be based on post incident expert analysis of observable physical evidence. There was no proof of analysis of that type, nor of the officer's qualifications to conduct one. Moreover, there was no proof that he was qualified to render an opinion based on such an analysis, Thus, to the extent that the accident report contained unqualified opinion evidence by [the officer], the report was inadmissible" (id.).
Applying these standards - which are consistent with the subsequent case law - I find that Flynn's opinion cannot be used to meet the State's burden. Flynn's testimony was not based on anything he witnessed at the accident scene, but from his after-the-fact analysis of a photograph, and there is no evidence in the record regarding Flynn's qualifications to perform such an analysis. His testimony that he manages capital construction and safety and maintenance programs, oversees structures, and is an engineer does not demonstrate his qualifications to analyze the causes of a wall's collapse (see Leicht v City of New York Dept. of Sanitation, 131 A.D.3d 515, 516 [2d Dept 2015] [engineer could not give testimony about defective design of a vehicle, absent "practical experience with, or personal knowledge of" the vehicles at issue; mere fact he was engineer is insufficient]).
Given that the only evidence advanced by defendant to rebut claimant's theory is either unsworn hearsay (the HNTB letter) or opinion given without proper foundation (the Flynn testimony), defendant cannot demonstrate that it was not negligent as a matter of law. I am therefore compelled to deny defendant's motion.
As a result, I need not consider the sufficiency of claimant's submission. Claimant's evidence will be assessed at trial, where it will be her burden to prove defendant's negligence.
Accordingly, defendant's motion for summary judgment, no. M-98249, is denied.
A conference call will be scheduled upon the filing of this Decision & Order to schedule a trial on liability.
Papers Considered:
1. Notice of Motion and Affirmation in Support of Felice V. Torres, Esq., dated June 23, 2022, with Exhibits annexed thereto.
2. Affirmation in Opposition of Shachar Hadar, Esq., dated September 2, 2022, with Exhibits annexed thereto.
3. Reply Affirmation of Felice V. Torres, Esq., dated September 15, 2022, with Exhibit A.