Opinion
# 2017-038-101 Claim No. 116669
01-13-2017
MATTHEW STILWAGEN v. STATE OF NEW YORK
KAHN GORDON TIMKO & RODRIQUES, P.C. By: Nicholas Timko, Esq. ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Janet Polstein, Assistant Attorney General
Synopsis
Case information
| UID: | 2017-038-101 |
| Claimant(s): | MATTHEW STILWAGEN |
| Claimant short name: | STILWAGEN |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 116669 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | KAHN GORDON TIMKO & RODRIQUES, P.C. By: Nicholas Timko, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Janet Polstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 13, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks compensation for injuries he sustained when he lost control of the motorcycle that he was operating on the Clearview Expressway in the City of New York. The trial of liability on this claim was conducted over four days in July and November 2015 in New York, New York. Claimant presented his testimony and that of New York City Police Officer Michael Dwyer, New York State Department of Transportation (NYSDOT) engineers Joseph Condon, Bruce Ogurek, Richard Wokoun and Kartikey Adhvaryu, former New York City Department of Transportation (NYCDOT) highway maintenance supervisor Anthony Camera, current NYCDOT employee Stacey Williams, and Herman Silverberg, a licensed engineer who testified as an expert witness. Defendant presented no witnesses. Numerous photographic and documentary exhibits were received into evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence, all of the other evidence, the applicable law, and the parties' memoranda as submitted after trial, the Court finds that defendant is 100% liable to claimant for his injuries.
FACTS
In the early afternoon of May 8, 2007, claimant was operating his motorcycle in the left lane between Exits 5 and 6A of the northbound Clearview Expressway in Queens, New York when it struck a bump, causing claimant to lose control. Claimant attempted to regain control, but his motorcycle struck a guide rail in the center median and he sustained severe injuries after he became separated from his motorcycle.
The Clearview Expressway is a limited access arterial highway in Queens County in New York City that is subject to the jurisdiction of NYSDOT Region 11, which encompasses all five counties within the City of New York. The Clearview Expressway is owned by defendant, the State of New York although the City of New York is responsible for certain maintenance responsibilities pursuant to a 1952 maintenance agreement between the State and the City and arterial maintenance standards adopted in 1967 and revised in 1972 (see Exhibit M). The arterial maintenance standards provide in pertinent part that "[m]ajor subgrade corrections, subsealing, surface treatments, resurfacing, and other major improvements in type will be the responsibility of the [NYSDOT]" (id. at p. 3). Under the arterial maintenance standards, roadway pavement is to be maintained "in as near the originally constructed condition as possible as to line, grade, cross section, riding quality and imperviousness" (id., at p.3). The arterial maintenance standards further provide that "[f]rost heaves, blow ups, pot holes, joint spalls, checks or disintegration and raveled areas will be corrected as they occur" (id.). A "frost heave" is created when water penetrates the roadway surface, freezes and expands, popping up the pavement, generally at a joint that runs across a lane of pavement, known as a transverse joint. A "blow up" results from the expansion of pavement, usually due to heat, that causes the pavement at a joint to buckle upward. The NYSDOT Region 11 Maintenance Group is composed principally of the Regional Maintenance Engineer and the Assistant Regional Engineer, and the Resident Engineers for each of the five counties within the City and their staff. The Region 11 Maintenance Group monitors, directs and oversees maintenance performed by the City pursuant to the maintenance agreement and standards, but has no employees that perform maintenance work on the highways. The Queens Resident Engineer is directly responsible for the maintenance of all state highways within Queens, including the Clearview Expressway, and is responsible for inspecting all maintenance work done by the City on the Clearview Expressway (id., at p.2).
Conditions requiring maintenance on the Clearview Expressway would come to the attention of the Region 11 Maintenance Group in two ways. First, the Queens Regional Engineer and his assistant would periodically drive in a passenger vehicle on arterial highways at speeds of between 20 to 25 miles per hour (mph), generally in the right lane, to observe the roadways, assess the rideability of the road and identify and photograph potential maintenance issues. Second, the Maintenance Group would receive complaints from the public, elected officials or agencies about conditions which it would investigate by doing a site visit. Kartikey Adhvaryu, the current Region 11 Maintenance Engineer who held the position of Queens Resident Engineer in 2007, testified that the Region 11 Maintenance Group was not provided with photolog photographs taken by DOT on regular intervals to identify roadway conditions requiring maintenance. Adhvaryu testified that there is no criteria for determining whether a roadway condition requires further evaluation and remedial action, that they look "mainly [at] the riding quality of the roadway" (T2:475), and that they look for bumps and heaves in the roadway to make sure the roadway is safe (T2:478-479). Joseph Condon, the NYSDOT Region 11 Assistant Regional Engineer, testified that "ride quality" means that the roadway is smooth safe and clear for all vehicles on the roadway, including motorcycles (T1:161-162). Condon testified that there will always be wear and tear on highways, and that while the standard is to preserve the condition of the road as close to the original riding quality as possible, a perfect riding surface is not guaranteed. Both Adhvaryu and Condon testified that a determination of whether a bump in the roadway posed a hazardous condition requiring remedial action is made utilizing engineering judgment and experience after riding over and evaluating the condition.
All references to the trial transcript are designated by "T1" for the proceedings on July 27, 2015, "T2" for the proceedings on July 28, 2015, "T3" for the proceedings on July 29, 2015, "T4" for the proceedings on November 17, 2015.
When the Region 11 Maintenance Group determined that a condition needed repair, it would generate a work order (WO) that would be sent to the City for items under the maintenance agreement (e.g. guide rail, fence and pothole repairs), or the Region 11 Construction Group for larger maintenance items over which DOT had responsibility. Adhvaryu testified that if he found an unsafe bump in the road, he would report it to the City because they were responsible for maintenance. Further, Condon testified that if NYSDOT became aware of a serious or severe bump in a roadway, it would notify the City and ask them to address the condition, but if it was moderate or mild, it would be left alone. Anthony Camera, a retired NYCDOT supervisor who was responsible for highway maintenance for arterial highways in Queens, testified that with regard to asphalt repairs, the City would fill potholes, but it was not responsible for repaving work or fixing bumps in the roadway (T2:327-328).
The Clearview Expressway runs approximately four miles from its southern terminus at the Grand Central Parkway to the Throgs Neck Bridge at its northern terminus. As pertinent to this claim, vehicles traveling northbound on the Clearview Expressway would first encounter Exit 5 (Northern Boulevard), then the 39th Avenue overpass and then Exit 6A (35th Avenue), which is approximately 3.2 miles from the roadway's southern terminus. The exit lane for Exit 6A on the northbound side of the Clearview Expressway begins at 36th Avenue and proceeds northward to 35th Avenue. In May 2007, the northbound Clearview Expressway between the 39th Avenue overpass and Exit 6A had three lanes of asphalt roadway that were separated from the southbound lanes by an asphalt median with metal guide rail, with a posted speed limit of 50 miles per hour (mph).
The center and right lanes of the northbound Clearview Expressway from Exit 5 to the approach of the Throgs Neck Bridge were resurfaced under a contract let by the Region 11 Construction Group pursuant to a WO that was issued by the Region 11 Maintenance Group dated June 7, 2005 (see Claimant's Exhibit 13). The WO noted that "[t]here is severe rutting and pavement deterioration in some places of Clear view [sic] Expressway at this location" and attached photographs that depicted broken and bumpy roadway surfaces on the Clearview Expressway (id.). The 2005 resurfacing work consisted of milling - or cutting - the asphalt pavement down to its concrete base, sealing joints and repaving the roadway with fresh asphalt. Richard Wokoun, the Engineer in Charge of the 2005 resurfacing work testified that if he had encountered a potentially hazardous condition in the left lane that was not covered by the WO, he would have notified his supervisor, Bruce Ogurek, the Region 11 Director of Construction, and that he did not recall informing Ogurek that the left lane needed repair. The left lane of the northbound Clearview Expressway from Exit 5 to the Throgs Neck Bridge, the area of claimant's accident, was not covered by the WO and was not resurfaced as part of the June 2005 WO.
Prior to his accident, claimant departed St. John's University in Queens on his motorcycle, a 2006 New York City Chopper, to go to his residence in the Bronx. Claimant's intended route that afternoon was to take Utopia Parkway northbound to the Long Island Expressway eastbound to the Clearview Expressway northbound to the Throgs Neck Bridge to the Bronx. Claimant had taken the reverse route to St. John's University earlier that day and testified that he could not recall whether he had previously traveled on the Clearview Expressway. The weather was warm, sunny, clear and dry (T3:592). Claimant was wearing an approved helmet, riding gloves, over-the-ankle boots, a leather jacket and gloves. Claimant had worked as a mechanic apprentice for New York City Choppers, a builder of motorcycles, and had obtained his license to drive a motorcycle the prior month.
Claimant testified that his motorcycle was similar to a stock Harley Davidson motorcycle and was not a chopper-style motorcycle with high handlebars.
Claimant testified that he was riding in the left lane of the northbound Clearview Expressway at approximately 50 mph with the flow of traffic, when he passed the 39th Avenue overpass and saw "at the last minute" a "raised-up surface" - a bump - in the left lane (T3:592). Claimant testified at an examination before trial (EBT) that he was on the Clearview Expressway for approximately fifteen to twenty minutes before encountering the bump. Claimant testified that he "looked for a way to get around [the bump] and . . . realized it stretched from the yellow paint on the left-hand side of the left lane to the white paint on the right-hand side of the left lane, separating the middle and the left lane" and that he "had no way to avoid making contact with [the bump]" (T3:593). Claimant testified that when he went over the bump his motorcycle went into a wobble and fishtailed to the left. Claimant testified that he squeezed his clutch to decelerate the motorcycle instead of hitting the brakes, as he was taught at a motorcycle safety course that he took before receiving his license, and that he grabbed his handlebars. Claimant testified that he was not able to regain control of his motorcycle, which struck the guide rail in the median that separated the northbound and southbound lanes. Claimant testified that his motorcycle traveled some distance - how much he could not be sure - and while he was attempting to regain control after hitting the bump before striking the guide rail. Claimant testified that his motorcycle went down after striking the guide rail and he was separated from the motorcycle and slid some distance down the road before stopping, sustaining personal injuries. Claimant testified that Anthony Mazzariello, an individual who witnessed the accident, helped him after the accident and that emergency service workers took him by ambulance to the hospital. Claimant testified that he did not speak to the police at the accident scene or at any time after his accident.
The evidence at trial establishes that claimant traveled on the Clearview Expressway for less than 3.2 miles, inasmuch as he entered the Expressway at a point north of the expressway's southern terminus.
Immediately prior to claimant's accident, Mazzariello was driving northbound on the Clearview Expressway in the center lane at a speed of between 50 to 60 mph when he was passed by claimant on his motorcycle in the left lane. Mazzariello testified that claimant passing him was "nothing extraordinary" and that he "probably wouldn't have remembered him if it wasn't for the accident" (T4:789). Mazzariello testified that after claimant passed him he switched into the left lane and he noticed, approximately 100 yards in front of him, that claimant's rear tire started to wobble or fishtail. Mazzariello testified that he observed claimant's motorcycle veer to the left and hit some gravel or sand in the median, that his motorcycle then struck the guide rail and ricocheted back into the left lane, that claimant became separated from the motorcycle and slid some distance before coming to rest in the left lane. Mazzariello testified that he did not know what caused claimant to fishtail and veer out of his lane, that he did not notice anything unusual about the travel of claimant's motorcycle, and that he did not recall seeing any dangerous condition that would pose a hazard in the road. Mazzariello testified that he stopped his vehicle and attended to claimant and his injuries, and that after the accident he gave a statement to a police officer at the scene.
New York City Police Officer Michael Dwyer responded to the accident scene at approximately 1:30 p.m., where he spoke to and took a statement from Mazzariello and authored a Police Accident Report (MV-104AN) (see Claimant's Exhibit 54; T1:45). Officer Dwyer testified that he did not speak to claimant at the scene and did not recall ever speaking with claimant. Officer Dwyer recorded the nearest reference marker (RM) to the accident as RM 1032, which is approximately twenty to thirty feet north of the triangular area that was formed by the highway and Exit 6A. Officer Dwyer testified that when he records a RM on a MV-104AN he chooses the closest RM to the accident, and that unless there is one ahead or is nearby, he will record the one that is immediately behind (T1:99; T1:107). Dwyer testified that the accident scene was approximately 100 to 150 yards south of Exit 6A. Officer Dwyer recorded Mazzariello's statement as follows:
"At [time/place/occurrence] witness states [claimant's vehicle] was traveling [northbound] on Clearview [Expressway] at 36 Ave in the left lane when he suddenly veered onto the center median dirt. He then fishtailed in the dirt before striking the center metal median and falling into the left lane and sliding about 150' feet [sic]"
(Claimant's Exhibit 54). Mazzariello testified that this statement is "basically what I remember from the day" and includes no inaccuracies (T4:795). Claimant testified that Mazzariello's statement is accurate, except that the accident occurred prior to 36th Avenue and that he ended up at 36th Avenue, and that there was "some distance" between the bump and 36th Avenue (see T3:613). Officer Dwyer testified that he did not notice anything that could have sent claimant off the roadway and that claimant was unavailable, so he listed as "unknown" apparent contributing factors to the accident on the MV-104AN (T1:61-62; T1:101-102). Officer Dwyer, who is sometimes assigned to motorcycle patrol, testified one could "very easily lose control of a motorcycle if you hit [a bump or pothole] at the wrong speed" (T1:72) and that bumps in the roadway are a greater danger to motorcycles than passenger cars (T1:104).
Claimant testified that in mid-June 2007, a friend drove him back to the accident scene where he found and photographed the bump that caused him to lose control of his motorcycle (see Claimant's Exhibits 1-7, 14-16). Claimant testified that he knew the general area where his accident occurred and that he used RM 1032 in Officer Dwyer's MV-104AN and worked backwards to find the bump. Claimant testified that when he found the bump, he recognized the general area and the overpass and saw that there were no other road conditions like the bump either before or after the bump. Claimant testified that the bump looked "very similar" in condition as it existed on May 8, 2007 (T3:599). Claimant testified that the bump was "considerably raised up," approximately three to four inches in height, and that it went "across the entire lane, going right to left" (T3:598). Claimant further testified that the slope of the bump "was not gradual" and "was very much crowned" (id.). Condon testified that when a road is constructed, it is constructed to be as flat as possible, and that a deviation of greater than an inch is not acceptable (T1:193-195).
Claimant's photographs of the roadway depict a bump that spans the entire left lane at a transverse joint that is perpendicular to the flow of traffic (see Claimant's Exhibits 1-7, 14-16). The pavement in the left lane is lighter than the darker pavement in the center and right lanes, which, as discussed above, were resurfaced in 2005. In addition to the clearly noticeable bump at the transverse joint, the pavement in the left lane appears considerably worn, as evidenced by a depression just past the joint that looks like a missing layer of asphalt. Camera, the former NYCDOT highway maintenance supervisor, testified that the bump depicted in the photographs that claimant took in mid-June 2007 was not a condition that would have been addressed by the NYCDOT, and that they "just fill the potholes" and lack the equipment needed to fix that type of condition (see T2:328-329).
Several NYSDOT photolog photographs of the northbound Clearview Expressway that were taken on October 18, 2005 and produced in electronic form were received into evidence depicts a bump in the left hand lane at a transverse joint just past the 39th Avenue overpass and before Exit 6A (see Claimant's Exhibit 64 [05-295-P(NB)-101805 folder, 295IP003030_0.jpg, 295IP003040_0.jpg, 295IP003050_0.jpg, 295IP003060_0.jpg, 295IP003110_0.jpg; see also Claimant's Exhibits 68-70; T2:371-385). The middle and right lanes in the 2005 photolog photographs are darker in color than the left lane, appearing to have been more recently repaved. NYSDOT engineer Adhvaryu testified that he could not discern the height of the bump from the 2005 photolog photographs, except that it appeared "very small" and it did not appear particularly dangerous (T2:495; T2:520). In the photographs that claimant took in June 2007 and in the NYSDOT photolog photographs, a tan or grey wall can be seen past a guide rail on the shoulder of the right lane (see Claimant's Exhibits 1-3, 5, 15, 16 [2007 photographs]; Claimant's Exhibits 68-70 [2005 photographs]). The roadway appears flat and straight with no curves in the road. At an EBT, claimant testified that he was traveling in the left lane approaching a right curve in the road - not a straightaway - when he encountered the bump (see T3:709).
There was no evidence at trial that NYSDOT or any of its employees received notice from any person or entity that the bump existed in the left lane of the northbound Clearview Expressway just north of the 39th Avenue overpass. The New York City Department of Information received a 311 call on April 12, 2007 from an individual who complained that the asphalt was "breaking away for a large portion of the left lane" of the northbound Clearview Expressway between Exit 5 (Northern Boulevard) and Exit 6A (35th Avenue) (see Claimant's Exhibit 56). The complaint was routed to NYCDOT's Queens Arterial Maintenance Unit, which inspected the condition and noted that the condition was not a pothole, but "a repaving issue" and that the "condition will be taken care of when time and resources allow it" (id.). No evidence was adduced that NYCDOT contacted NYSDOT about the complaint. Previously, on March 31, 2005, New York State Assemblywoman Ann-Margaret Carozza had written to the NYCDOT on behalf of several of her constituents who resided in close proximity to the Clearview Expressway and 36th Avenue about "constant noise from trucks and cars hitting potholes and bumps" (Claimant's Exhibit 66 [3/31/2005 Carrozza correspondence]). On July 18, 2005, Constance Moran, NYCDOT Queens Borough Commissioner, responded to Assemblywoman Carrozza's correspondence "regarding potholes in the road located adjacent to the Clearview Expressway and 36th Avenue" by informing her that the location was under NYSDOT's jurisdiction and that her letter was being referred to Douglas Currey, NYSDOT Regional Director (see id. [7/18/05 Moran correspondence (emphasis added)]).
Claimant presented Herman Silverberg, a civil engineer who formerly worked for NYCDOT in bridge construction and is a private consultant in roadway design, as his expert in roadway engineering and safety. Silverberg testified that NYSDOT roadway construction standards provide that there cannot be a surface deviation of greater than one-quarter inch during construction, and that any vertical deviation greater than one-quarter inch should be fixed as it is effectively a "speed bump that's really dangerous" (T4:843). Silverberg testified that NYSDOT standards provide that when pavement is milled and a vertical differential of one inch results, it must be beveled (T4:825-826), and that any deviation greater than one inch is very dangerous for motorcycles. Thus, Silverberg opined that the bump that claimant encountered was not a safe condition.
Silverberg testified that the bump depicted in claimant's photographs (see Claimant's Exhibits 14-16) was caused either by a blow up or a frost heave (T4:860-861). Silverberg could not determine how long the bump had existed based solely upon the photographs that claimant had taken in 2007, but he was of the opinion that the bump had existed at least months prior to the May 2007 accident inasmuch as the bump was likely caused by a frost heave that would have occurred in the winter months, and perhaps longer if it was caused by a blow up during the summer months. Silverberg further testified that the NYSDOT photolog photographs showed a bump in the same location in 2005.
Silverberg testified that good and accepted standards for highway safety inspection involve three step process of finding, measuring and evaluating problems (T4:840). First, NYSDOT's Comprehensive Pavement Design Manual requires DOT officials to conduct at least two inspections over its highways, the first at the speed limit and the second at 5 mph on the shoulder of the highway to find or discover potential problems (T4:841). When NYSDOT officials find a potential hazard, they must go back and measure the hazard and must then evaluate the data they have gathered to determine how to address the hazard. Silverberg testified that had the Region 11 Maintenance Group followed proper procedures, the bump would have been identified and evaluated, which it was not in this instance. Silverberg further testified that good and accepted practice for highway safety inspection requires an assessment of many factors, including rideability, differential in grade and roadway cracks, and that it was not proper to focus solely on rideability, as was done in this case. It was Silverberg's opinion that the Region 11 Maintenance Group did not comply with good and accepted standards in evaluating and inspecting the roadway as the "methodology they used was not of the caliber of being scientific or good engineering" (T4:859), and that the failure to evaluate the bump was not good engineering practice (T4:981). DISCUSSION
The issues that are before the Court following the trial of liability on this claim are: (1) whether defendant was responsible for the maintenance of the condition that caused claimant's injuries, and if so; (2) whether claimant has proven by a preponderance of the credible evidence that he was injured as the result of a dangerous condition, that defendant had actual or constructive notice of that condition and that it failed to warn of or remedy it. Defendant argues that it cannot be held liable for claimant's injuries because the responsibility for maintaining the Clearview Expressway was transferred from the State to the City by agreement pursuant to the provisions of the Highway Law.
The State has a nondelegable duty to maintain its roadways in a reasonably safe condition (see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Tomassi v Town of Union, 46 NY2d 91, 97 [1978]). Thus, even if an allegedly hazardous condition results from the activity or negligence of another party that is under contract with the State, an obligation to maintain the State-owned roadway remains with the State (see Lopes v Rostad, 45 NY2d 617, 623 [1978]).
The Court of Appeals has recognized that defendant has a continuing maintenance obligation for the Clearview Expressway:
"Under article XII-B [of the Highway Law], the State is empowered to expend State or Federal funds for the purchase, design, construction or reconstruction of arterial routes running through cities . . . and thereby attains ownership of such roads . . . Once State construction or reconstruction of an arterial highway is complete, however, the State must return "jurisdiction" of the roadway to the City . . . Notwithstanding such return of jurisdiction article XII-B contemplates that the State retains continuing maintenance responsibility for State arterial highways it has constructed or reconstructed."
Article XII-B of the Highway Law is addressed to "State Arterial Highways Passing Through Cities" and the Clearview Expressway is subject to Article XII-B (see Highway Law § 349-f ["Clearview expressway from Throgs Neck bridge to Nassau expressway"]; see also Marchese v State of New York, 37 Misc 3d 1226[A], *2-*3 [Ct Cl 2012]).
(Nowlin v City of New York, 81 NY2d 81, 86 [1993] [internal citations omitted, emphasis added]). In the absence of authority or evidence that New York City has exclusive jurisdiction over the maintenance of a State highway or that defendant's nondelegable duty to maintain the highway was somehow abrogated, the Court of Appeals holding in Nowlin is controlling.
The evidence adduced at trial demonstrates that the City of New York and the State each have responsibility for certain maintenance of the Clearview Expressway, which is not inconsistent with Nowlin. The City and the State entered into a maintenance agreement for the Clearview Expressway as allowed by Highway Law § 349-c (3.4), pursuant to which the City performed various maintenance activities to the Clearview Expressway in accordance with the arterial maintenance standards. The arterial maintenance standards requires that the City correct certain bumps, i.e. those caused by frost heaves and blow-ups, and it provides that NYSDOT is responsible for major surface treatments and repaving. Defendant's maintenance responsibility for the Clearview Expressway is evidenced by its oversight of the City's work and by the fact that the State contracted for the 2005 maintenance resurfacing work on the Clearview Expressway. Testimony of the City and State witnesses was at odds as to whose responsibility it was to repair the bump that was struck by claimant's motorcycle, but even if it was the City's obligation to correct the bump and it breached a duty that arose under the agreement and standards, defendant is not excused from duty or potential liability. Accordingly, defendant may be held liable due to a breach of its nondelegable duty to maintain the Clearview Expressway.
To establish the State's liability, claimant must prove by a preponderance of the credible evidence that a dangerous condition existed, that the State either created or had actual or constructive notice of the condition, that it failed to remedy or warn of the condition, and that such failure was the proximate cause of claimant's injuries (see Cappolla v City of New York, 302 AD2d 547, 548 [2d Dept 2003], lv denied 100 NY2d 511 [2003]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979]; Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). Claimant contends that all of these elements have been established with respect to the bump that his motorcycle struck. Defendant argues that claimant has failed to prove that the accident occurred at either the location or in the manner that he testified, or that defendant created or had actual or constructive notice of the bump.
Claimant's testimony, and the photographs that he took weeks after the accident establish that there was a bump in the left hand lane just past the 39th Avenue overpass at a transverse joint. Claimant credibly testified that the bump was not insubstantial, that it had a height differential well in excess of one inch, and that the bump was "not gradual" and "crowned" (T3:598), which amounted to a speed bump in the middle of the highway. Both NYSDOT engineer Condon and claimant's expert testified that a height differential of one inch or greater is not acceptable on a state highway. Officer Dwyer credibly testified that bumps in the roadway are a greater danger to motorcycles than passenger cars (T1:104), and Silverberg's persuasive testimony establishes that a height differential of an inch or greater is dangerous for motorcycles. Defendant does not contend that the bump across the left lane was not a dangerous condition, and the evidence supports a finding that it was.
Defendant challenges the value of the testimony of claimant's expert on the ground that his area of expertise is highway design, not highway maintenance. However, the expert's testimony in this matter addressed whether the roadway defect was dangerous, the likely cause of the condition and its age, and standards for highway inspections that are found in a design manual. To the extent that Silverberg may lack expertise in the area of highway maintenance, his testimony was not directed toward maintenance issues. Any lack of maintenance expertise does not compel the Court to "not accord Mr. Silverberg's opinion any weight in reaching a decision in this case" (Defendant's Post-Trial Memorandum of Law, at 31), but may affect the weight accorded to any of Silverberg's testimony that may have been addressed to maintenance issues. --------
Defendant argues that claimant's testimony was untrustworthy as to the manner and location of his accident because there are several incongruities in claimant's testimony. Specifically, defendant notes that claimant testified at his EBT that the roadway was curved while the photographic evidence demonstrates that the roadway was straight, and that claimant testified at his EBT that he was on the Clearview Expressway for approximately 15 minutes, which is unlikely because he was traveling approximately 50 mph and had traveled only approximately 3 miles on that road. However, the Court, as the finder of fact "may accept so much of his . . . testimony as [it] deem[s] true and disregard what [it] feel[s] is false" (1A NY PJI 3d 1:22, at 48 [2016]). In viewing claimant's demeanor at trial, the Court found claimant to be an earnest and forthright witness who unambiguously and credibly testified that he encountered the bump in the left lane of the northbound Clearview Expressway just past the 39th Avenue overpass, and that it caused him to lose control. The inconsistencies between claimant's trial testimony and his EBT testimony, however, "are not so significant as to render claimant's trial testimony incredible as a matter of law" (DiPalma v State of New York, 90 AD3d 1659, 1660 [4th Dept 2011]), especially considering that claimant's credible testimony was not inconsistent with the MV-104AN and the testimony of Mazzariello. Thus, the Court is unpersuaded that claimant's trial testimony should be found not credible.
Liability will not attach, however, unless the State had actual or constructive notice of the dangerous condition and failed to remedy it (see Hannon v State of New York, 13 AD3d 770 [3d Dept 2004]; Hynes v State of New York, 301 AD2d 628, 629 [2d Dept 2003]; D'Alessio v State of New York, 147 AD2d 791, 793 [3d Dept 1989]; Bolton v State of New York, UID No. 2002-005-001, [Ct Cl, Corbett, J., July 9, 2002]; Zweig v State of New York, UID No. 2001-010-073, [Ct Cl, Ruderman, J., Oct. 11, 2001]). There was no evidence at trial that defendant created the bump through its own affirmative act or that defendant had received any complaint about the bump that is the subject of this claim. Claimant's argument that defendant had actual notice through complaints about the roadway made to the City, as an agent of defendant is unavailing for the following reasons. First, the 311 complaint made in April 2007 concerning a pavement condition in the left lane of the Clearview Expressway in the vicinity of the accident was about pavement breaking away and not the bump that is the subject of the claim. Second, the March 2005 Carrozza correspondence regarding the complaint of constituents who live near the Clearview Expressway does not identify the location of the troubling potholes and bumps, and Moran's July 2005 reply correspondence addresses defects in a roadway that is adjacent to the Clearview Expressway. Further, claimant has offered no authority that a complaint made to a party in contractual privity with defendant constitutes actual notice to defendant. In sum, there is insufficient evidence upon which to find that defendant had actual notice of the bump in the left lane of the Clearview Expressway.
"To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit a defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1005-1006 [3d Dept 2005]; Rinaldi v State of New York, 49 AD2d 361, 363 [3d Dept 1975]). Claimant argues that defendant should be charged with constructive notice because the bump is apparent in defendant's 2005 photolog photographs, and defendant's agents routinely performed inspections of the highway that should have revealed the bump. Defendant contends that claimant has not proven constructive notice because he did not offer evidence of the accident history for the roadway and because his expert was unable to "pinpoint when precisely the condition was created" (Defendant's Post-Trial Memorandum of Law, at p.25).
The NYSDOT photolog photographs clearly establish that there was a bump at the same location in 2005, nearly eighteen months before the accident. An exact "pinpoint" showing of when the condition was created is not required, and claimant's expert credibly testified that the bump had been in existence for at least several months prior to the accident that occurred in the month of May based upon his opinion that the bump was likely caused by a frost heave or blow-up. Thus, the preponderance of the credible evidence establishes that the bump was created at least months before the accident, which under the circumstances presented in this claim is a sufficient period of time to charge defendant with constructive notice of existence of the bump in the road.
There was no evidence at trial that defendant remedied the condition, or that defendant warned of the bump in the highway. The preponderance of the credible evidence establishes that the failure to warn or remedy the bump was a substantial cause of the accident, and thus a proximate cause of claimant's injuries. Accordingly, the Court finds that defendant is liable to claimant.
To the extent that defendant argues that claimant is at fault, the preponderance of the credible evidence adduced at trial does not establish claimant's comparative negligence. Although defendant argues that claimant was a newly licensed motorcycle rider and was unfamiliar with the Clearview Expressway, there is no evidence that such factors contributed to the accident. Rather, claimant's credible testimony establishes that once his motorcycle encountered difficulty, he properly followed the training he had received but to no avail. Defendant's assertion that claimant "took a turn at too high a rate of speed" (Defendant's Post-Trial Memorandum of Law at p.22) is simply contrary to the evidence that the bump he encountered was on a straight section of the Clearview Expressway. Although the credible evidence establishes that claimant was operating his motorcycle in excess of the speed limit when he passed Mazzariello, there is no evidence of his speeding at the time that he encountered the bump, and the Court credits claimant's testimony that he was operating his motorcycle at approximately the speed limit with the flow of traffic. Further, even if claimant was speeding when he hit the bump, there is no evidence of his rate of speed nor relevant expert testimony to support a finding that excessive speed was a substantial cause of the accident. Finally, while the bump appears open and obvious from the still photolog photographs taken in 2005, there was no testimony adduced that the condition could be plainly and obviously seen or avoided by claimant as he was traveling. Indeed, Mazzariello, who was traveling the same road as claimant, credibly testified that he did not recall seeing any dangerous condition in the road, including the bump that caused claimant's accident. Accordingly, the evidence does not preponderate in favor of a finding that claimant was negligent or that he engaged in any lack of care that should reduce defendant's liability.
CONCLUSION
Defendant is 100% liable to claimant. Any motions not previously ruled upon are hereby
DENIED. The claim will be scheduled for trial on the issue of damages as soon as possible.
Let interlocutory judgment be entered accordingly.
January 13, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims