Matter of Lansing v State of New York
2007 NY Slip Op 50903(U) [15 Misc 3d 1129(A)]
Decided on April 4, 2007
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Matter of Lansing v State of New York
Decided on April 4, 2007
In the Matter of the Claims of Michael F. Lansing and Elizabeth Lansing, Claimants,
The State of New York, Defendant.
Appearances: For Claimants:
Anderson, Moschetti & Taffany, PLLC
By: Peter J. Moschetti, Jr., Esq.
Andrew M. Cuomo
Attorney General of the State of New York
By: Stephen J. Maher, Esq., AAG
and Michael Krenrich, Esq., AAG
Christopher J. McCarthy, J.
For the reasons set forth below, the State's motion for summary judgment seeking dismissal of the Claim pursuant to CPLR 3212 is granted.
The essential facts of the Claim are undisputed. On September 5, 2002 at approximately 9:25 a.m., a two-vehicle collision occurred at the intersection of State Routes 9 and 20 (also known as Columbia Turnpike) and Greenwood Drive in the Town of East Greenbush, Rensselaer County. Columbia Turnpike is a two-way, four-lane undivided roadway. It runs in a generally east/west direction. Claimant Michael F. Lansing [FN1] was riding a motorcycle westbound on Columbia Turnpike that collided with an automobile driven by Shirley Kelly. Ms. Kelly was making a left-hand turn from the passing lane of eastbound Columbia Turnpike onto Greenwood Drive. It is a signalized intersection and it is not disputed that the signal was green for traffic on Columbia Turnpike at the time of the accident. There is no separate storage lane or turn arrow at the intersection for traffic making left turns from Columbia Turnpike.
The Claim alleges that the accident was caused solely and wholly by the negligent acts and/or omissions of Defendant and that Columbia Turnpike was in a defective and unsafe condition [*2]because that intersection had an improper and dangerous lane configuration and an improperly set up traffic control device.
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920; Wanger v Zeh, 45 Misc 2d 93, affd 26 AD2d 729).
The 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 (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., supra at page 853).
In support of its motion, Defendant has submitted, inter alia, the Affidavit of Mark A. Pyskadlo, a licensed professional engineer employed by the New York State Department of Transportation (hereinafter DOT). Mr. Pyskadlo is the Supervisor of the Traffic Signal Operations Group, Traffic Engineering & Safety Group, Region 1, which includes Rensselaer County (Pyskadlo Affidavit, ¶ 1).
Mr. Pyskadlo avers to the following: DOT has conducted various traffic studies and compiled other information regarding the subject intersection. On April 12, 2004, DOT completed a study in response to a letter from Dean Kennedy, a member of the East Greenbush Town Council, dated January 9, 2004, which requested the installation of left-turn arrows at the subject intersection. The results of the study, conclusions, and supporting documentation are attached to Mr. Pyskadlo's Affidavit as Exhibit A. The study analyzed the intersection's accident history (obtained from Department of Motor Vehicles records) for the period January 1, 1999 through November 22, 2002. That period includes the three years and nine months prior to the subject accident. As set forth in Exhibit A to his Affidavit, and as amplified by his testimony at an examination before trial (EBT) in the case on February 15, 2005 (Attached to Affirmation of Stephen J. Maher as Ex. H), DOT performed the study and concluded that the installation of left-turn arrows was not warranted. As part of the study, a collision diagram was prepared which showed that five left-turn accidents (including Claimant's accident) occurred from Columbia Turnpike eastbound onto Greenwood Drive during the study period. DOT concluded that the number of accidents did not warrant the installation of left-turn arrows. DOT concluded further that the absence of left-turn storage lanes at the subject area and the absence of physical space for such lanes, in the context of the volume of traffic passing through the intersection, would have reduced the efficiency of such signals. Additionally, the offset nature of the subject intersection (with Hayes Road to the southeast), coupled with the observations and information set forth, led to DOT's conclusion that left-turn arrows were not warranted. He concurs with that conclusion (Pyskadlo Affidavit, ¶ 4).
Mr. Pyskadlo also avers that, on December 30, 1987, DOT completed a study in response to a letter from Frances Kudzia, dated September 23, 1987, which also requested the installation of a left-turn signal at the subject intersection (the results of that study, conclusions, and supporting documentation are attached to his Affidavit as Ex. B). Mr. Pyskadlo states that the study analyzed the intersection's accident history for the period January 1, 1984 through August 28, 1987 (again, a period of approximately three years and nine months). As set forth in Exhibit B to his Affidavit, and as amplified in his EBT testimony, DOT performed a study and concluded that the installation of a left-turn signal was not warranted. As part of the study, a collision diagram was prepared which [*3]showed that three left-turn accidents occurred from Columbia Turnpike eastbound onto Greenwood Drive during the study period. At that time, DOT determined that the number of accidents did not warrant the installation of a left-turn arrow. Mr. Pyskadlo also concurs with that conclusion, based upon the information set forth (Pyskadlo Affidavit, ¶ 5).
Mr. Pyskadlo further asserts that, on October 11, 2000, traffic counts were conducted at the subject intersection. The results of those traffic counts are set forth and attached to his Affidavit as Exhibit C, including a diagram on which the data is recorded. He contends that the results of those traffic counts show a low number of left turns from Columbia Turnpike eastbound onto Greenwood Drive. For example, between the hours of 7:00 a.m. and 5:45 p.m., 189 vehicles made left turns onto Greenwood Drive, as compared to 469 right turns onto Hayes Road, and 2,844 through vehicles. Likewise, for westbound traffic on Columbia Turnpike for the same period of time, there were 255 [FN2] [sic] left turns onto Hayes Road, 172 right turns onto Greenwood Drive, and 2,992 through vehicles.
Mr. Pyskadlo concludes that the studies by DOT were adequate and the decisions based upon the information obtained were reasonable. He asserts that, in each case, DOT relied upon the latest available accident data, performed a study and determined that left-turn signals were not warranted. He further concludes that the traffic counts conducted at that intersection on October 11, 2000 (see Ex. C) demonstrate that the number of left turns onto Greenwood Drive, relative to the traffic volume, did not support the installation of a left-turn lane or left-turn arrows (Pyskadlo Affidavit, ¶ 6).
The State of New York has an absolute, nondelegable duty to maintain its roadways in a reasonably safe condition and the breach of this duty will result in liability to the State for injuries therefrom (Friedman v State of New York, 67 NY2d 271; Weiss v Fote, 7 NY2d 579). Inherent in that duty is the obligation to construct, design and maintain roadways in a reasonably safe condition taking into account such factors as existing traffic conditions, terrain and physical practicality (Gutelle v City of New York, 55 NY2d 794). The mere occurrence of an accident on a State roadway does not confer liability, however, since the duty does not have the effect of making the State an insurer of the safety of its roadways (Tomassi v Town of Union, 46 NY2d 91, 97; Brooks v New York State Thruway Auth., 73 AD2d 767, 768, affd 51 NY2d 892). Claimant has the burden of establishing that the State was negligent and that such negligence was a proximate cause of the accident (see Kampff v Ulster Sanitation, 280 AD2d 797; Patrick v State of New York, 11 Misc 3d 296, 320; Rice v State of New York, Claim No. 107632, dated June 19, 2006, Hard, J. [UID No. 2006-032-505]). Furthermore, in the field of traffic design engineering, Defendant is accorded a qualified immunity from liability arising out of a highway planning decision (see Friedman v State of New York, supra; Alexander v Eldred, 63 NY2d 460, 466; Weiss v Fote, supra at 589). Under the doctrine of qualified immunity, Defendant can be found liable for injuries only if its study of a traffic condition is plainly inadequate, or there is no reasonable basis for its traffic plan (see Friedman v State of New York, supra at 284; Alexander v Eldred, supra; Weiss v Fote, supra; Schuster v McDonald, 263 AD2d 473, 474-475).
Based upon the record, the Court finds that Defendant's submissions in support of its motion for summary judgment satisfy the prima facie showing required to warrant judgment as a matter of law pursuant to the doctrine of qualified immunity (Affleck v Buckley, 276 AD2d 507, affd 96 NY2d [*4]553; Schuster v McDonald, 263 AD2d 473) if not refuted by Claimant.
Given Defendant's prima facie showing, it is incumbent upon Claimant to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim, or else he must demonstrate an acceptable excuse for his failure to meet the requirement; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient (Zuckerman v City of New York, 49 NY2d 557, 562; Alvord & Swift v Muller Constr. Co., 46 NY2d 276, 281-282; Fried v Bower & Gardner, 46 NY2d 765, 767; Platzman v American Totalisator Co., 45 NY2d 910, 912; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290). The requisite elements of proof in a case such as this are that the information relied on by the Defendant was plainly inadequate, or that the traffic plan in effect at the time of the accident was without a reasonable basis (see Friedman v State of New York, supra; Alexander v Eldred, supra; Weiss v Fote, supra).
Claimant has submitted the Affirmation of his counsel and the Affidavit of Lance E. Robson. Mr. Robson is a licensed professional engineer in New York and four other states. Mr. Robson states that Columbia Turnpike is a "two-way, four-lane, undivided, rural arterial" in the area of the accident (Robson Affidavit, ¶ 8). He avers that the American Association of State Highway and Transportation Officials' (AASHTO) 1973 A Policy on Design of Urban Highways & Arterial Streets states that the desirability of exclusive left-turn lanes cannot be overstated and that traffic safety is greatly enhanced when turning vehicles can be stored clear of the lanes used for through traffic (Robson Affidavit, ¶ 15). He also asserts that DOT's 1983 Highway Design Manual requires channelization of traffic at intersections with complex turning movements, especially when traffic actuated controls are employed (id at ¶ 18). He also asserts that left-turn lanes should be considered at intersection approaches that experience a significant number of left-turn involved accidents (id at ¶ 20). He further asserts that the State failed "to consider most of the accident data from 1984 through 1987 and 1999 and [sic] through 2002. Instead, the State improperly and unreasonably only considered left-hand turn accidents" (id at ¶ 23).
Mr. Robson further avers:
"27.The New York State Department of Transportation traffic count data relied upon by the State in its motion [Ex. C attached to Pyskadlo Affidavit] shows for three two-hour periods (two hours in the morning, two at mid-day and two at evening) left-turning traffic volumes in the order of five to over 13 percent of advancing traffic volumes (average of 7 percent) and opposing volumes of up to 940 v.p.h., with an average hourly opposing through/right-turn volume of approximately 540 v.p.h.
28.NCHRP's [National Cooperative Highway Research Program] Report No. 279 shows for a four-lane, undivided highway, with an opposing volume of 500 v.p.h., a separate left-turn lane is warranted for left-turning volumes over 17 v.p.h. During the six hours of the 2000 traffic count data, that threshold was met, or exceeded (either eastbound or westbound) during all six hours.
29.Based on the NYSDOT's 2000 traffic volumes, and the operation of the traffic signal, the installation of separate left-turn lanes for Routes 9-20 left-turning traffic was warranted at the crash intersection since at least 2000. [*5]
30.It is my opinion, based on a reasonable degree of engineering certainty, that given the significant volume of both left-turning and opposing through traffic at the intersection, the documented history of crashes at the intersection, and the signal operation at the intersection, corrective measures to accommodate left-turning Routes 9-20 traffic in a reasonably safe manner should have been taken. Those measures should have included provisions to separate left-turning Routes 9/20 traffic from through traffic with a protected left-turn lane."
Mr. Robson concludes his Affidavit by stating:
"41.[I]t is my opinion, based on a reasonable degree of engineering certainty, the State was negligent in failing to provide a left-turn lane for left-turning vehicles onto Greenwood Drive. This is based on the geometry and traffic movements at the crash intersection, established highway engineering recognition of the danger associated with left turns from shared lanes, and the evaluation of traffic volumes and crash data with specific criteria. Had there been a separate left-hand turn lane controlled by the present signals, the accident would never have occurred. The studies and analysis done by the New York State Department of Transportation were inadequate in that they did not consider the proper accident criteria, traffic volumes, and did not consider at all putting in a left-turn lane. Moreover, the studies and consideration of the intersection lacked a reasonable basis in there were no specific criteria used, or available in the NYSDOT directives, to determine when left-turn lanes should be implemented. The studies also lacked a reasonable basis as they failed to take into consideration all the accident data at the intersections and the appropriate traffic volume."
While Claimant strives to raise a triable issue of fact, it is the Court's determination that he has failed to do so. Claimant argues that the State's analyses and studies of the intersection were inadequate and lacked a reasonable basis in that they failed to consider the entire accident history of the intersection, the correct volume of traffic at the intersection, and the use of a left-turn lane at the intersection to alleviate the dangerous nature thereof. Thus, Mr. Robson's Affidavit asserts that the State improperly considered only left-turn accidents in its analyses of the intersection (Robson Affidavit, ¶ 23). He also asserts that the State failed to consider installing a left-turn lane at the intersection (id at ¶ 39).
Based upon the record, the Court disagrees with Claimant's assertion that the State failed to consider the entire accident history and instead considered only left-turn accidents in its analyses of the intersection. A review of Mr. Pyskadlo's deposition transcript (annexed to Maher Affirmation as Ex. H) demonstrates that the State obtained accident data (not limited to left-turn accidents), reviewed turn counts and opposing traffic data, assessed accident patterns, prepared intersection collision diagrams (again, not limited to left-turn accidents) and performed an on site delay study to determine if the subject intersection required revision (Ex. H, pp. 15-22). DOT advised Frances J. Kudzia (whose request led to the 1987 study of the intersection), that DOT "checked the accident history and the left turn volumes" (Pyskadlo Affidavit, Ex. B, p. 1). Likewise, DOT advised Dean Kennedy (whose request led to the 2004 study of the intersection) that DOT reviewed the intersection's accident history, traffic counts, flow of vehicles through the intersection and performed a vehicle delay study (Pyskadlo Affidavit, Ex. A, p. 1).
The Court also has reviewed the Traffic Count Data provided by Defendant (Ex. C attached to Pyskadlo Affidavit). The Court notes that Mr. Robson's conclusion that the NCHRP threshold was met for installation of a left-turn lane for all six hours of the study appears to be factually [*6]incorrect since there were only twelve left turns from Columbia Turnpike eastbound onto Greenwood Drive noted during the 7:00 to 8:00 a.m. period on the study date. In any event, Mr. Robson merely states his conclusion without attaching supporting data.
The Court also finds Claimant's second assertion, that the State failed to consider installing a left-turn lane at the subject intersection, unsupported by the record submitted. Contrary to Mr. Robson's assertions, Mr. Pyskadlo testified at his deposition that the installation of a turn lane was considered, but was determined to be not warranted:
"Q: When you were looking at the study did you consider at all placing a left-hand turn arrow or left-hand lane?
A: That's what was requested, so we considered it. And it was not necessary.
(Maher Affirmation, Ex. H, p. 24).
DOT advised Ms. Kudzia after its 1987 review of the accident history and left-turn volume at the subject intersection, that "[n]either indicated that a separate left turn phase was needed at this time" (Pyskadlo Affidavit, Ex. B, p. 1). Likewise, DOT informed Mr. Kennedy after the 2004 study that it did "not believe that the installation of left turn arrows is warranted at this time" (Pyskadlo Affidavit, Ex. A, p. 1).
Thus, the record is clear that the State considered installation of a left-turn lane, but rejected the suggestion as unnecessary.
In addition, Mr. Robson refers in his Affidavit to DOT manuals; policies and guides issued by AASHTO; NCHRP reports; United States Department of Transportation reports; and statements by the Transportation Research Board. He points to them in concluding that the State's study was inadequate and lacked a reasonable basis. The Court notes, however, that there is nothing mandatory in the guidance supplied by those sources. Rather, the authorities cited collectively stand for the proposition that left-turn lanes are desirable, enhance safety, and should be considered where possible and established when conditions warrant. Certainly, they do not require the establishment of left-turn lanes at every intersection. Thus, the State is obliged to make its own assessment and exercise its engineering judgment in determining whether or not such traffic control measures are appropriate at the subject intersection. This it did on three occasions. Mr. Robson opines that the State's analyses were inadequate and unreasonable and that the State was negligent in failing to provide a left-turn lane for vehicles turning left from Columbia Turnpike eastbound onto Greenwood Drive. The opinion of Claimant's expert that a left-turn lane would improve the intersection does not raise a question of fact, however, as to whether Defendant breached its duty (see Schwartz v New York State Thruway Auth., 61 NY2d 955; Salzer v State of New York, Claim No. 97738, dated February 22, 2006, Sise, P.J. [UID No. 2006-028-010]). To be sure, any public roadway, no matter how careful its design and construction, can be made safer (Tomassi v Town of Union, supra). The State may not be found liable, however, for a failure to provide more complete protection (Urquhart v City of Ogdensburg, 91 NY 67; Weese v State of New York, Claim No. 98976, Motion Nos. M-66667, CM-66850, dated June 2, 2004, Minarik, J. [UID No. 2004-031-060] quoting, Hannon v State of New York, Claim No. 102289, dated April 29, 2003, Collins, J. [UID No. 2003-015-576]). Something more than a mere choice between conflicting opinions of experts is required before the State may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public (Affleck v Buckley, 96 NY2d 553, 557; Friedman v State of New York, supra; Weiss [*7]v Fote, supra at 588; Schuster v McDonald, 263 AD2d 473, 474). The Court concludes that the evidence submitted by Claimant is insufficient to raise a triable issue of fact that Defendant's studies were plainly inadequate, or that the traffic plan in effect at the time of the accident lacked a reasonable basis.
Finally, the Court notes that the filed Claim does not contain an ad damnum clause wherein a total sum claimed is set forth (see Court of Claims Act § 11[b]). The New York State Court of Appeals confirmed recently in Kolnacki v State of New York (____ NY3d ____, March 22, 2007) that the failure to include a total sum claimed is a jurisdictional defect requiring dismissal of the claim. The Court stated that Lepkowski v State of New York (1 NY3d 201) made clear that all the requirements of Court of Claims Act § 11(b) are substantive conditions on the State's waiver of sovereign immunity, and the failure to satisfy any of the conditions is a jurisdictional defect. Therefore, regardless of the Court's finding on the summary judgment motion, this Claim would have to be dismissed.
This was a terrible accident resulting in a devastating injury to Mr. Lansing. However, upon this record, the Court concludes that Claimant has failed to raise a triable issue of fact. Therefore, the Defendant's motion for summary judgment is granted and the Claim is dismissed.
Albany, New York
April 4, 2007
Christopher J. McCarthy
Judge of the Court of Claims
Footnote 1:The term Claimant herein refers to Michael F. Lansing since the Claim of Elizabeth Lansing is derivative in nature.
Footnote 2:As shown on Exhibit C attached to his Affidavit, the actual number of left turns is 297.