Schreiber-Cross v State of New York

[*1] Schreiber-Cross v State of New York 2006 NY Slip Op 52700(U) [25 Misc 3d 1202(A)] Decided on December 27, 2006 Ct Cl Lack, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through September 22, 2009; it will not be published in the printed Official Reports.

Decided on December 27, 2006
Ct Cl

Stacey D. Schreiber-Cross, as Administrator of the Estate of Bryan E. Cross, and Individually and as Parent and Natural Guardian of Bradley H. Cross and Bryan M. Cross, Infants, Claimants,

against

The State of New York, Defendant.



107259



For Claimants:

Graham, Miller, Neandross, Mullin & Roonan, L.L.C.

By: Ginsberg & Broome, P.C.

Robert M. Ginsberg, Esq. and Michael J. Slevin, Esq., of Counsel

For Defendant:

Eliot Spitzer, New York State Attorney General

By: John M. Shields, Assistant Attorney General

James J. Lack, J.

This is a timely filed claim by Stacey D. Schreiber-Cross (hereinafter "claimant"), as Administrator of the Estate of Bryan E. Cross (hereinafter "decedent"), individually and as the parent and natural guardian of Bradley H. Cross and Bryan M. Cross. The claim is for the alleged negligence by the State of New York in allowing a traffic light at the intersection of Hallock Avenue (also known as State Route 25A) and Columbia Street, Port Jefferson Station, New York, to display green in both directions. On April 26 and 27, 2006, a bifurcated trial was held on the question of liability.

The light in question is a regular three-phase traffic light, not a blinking one. Both Hallock Avenue and Columbia Street are one lane in each direction. Claimant called several witnesses familiar with the intersection to describe problems with the traffic light on the date of the accident and on other times.

Craig Behrens was the first to testify for claimant. He owns the Taylor Rental Center near [*2]the intersection. According to Behrens, the light at the intersection malfunctions frequently. He has seen it blinking green, yellow and red on both roads at the same time through the years. The witness noticed that the light was blinking yellow for Hallock Avenue on the date of the accident at approximately 3:00 p.m. Behrens did not report the light being on flash to anyone. Behrens also testified that he was a friend of claimant's family.

The next witness to testify was Clayton Johnson who owns a martial arts business in the shopping center located at the intersection of Hallock Avenue and Columbia Street. He recalled that on the date of the accident the light was flashing yellow and red but does not recall which light was facing which direction. The witness stated he noticed the light when he got in to work, which was usually around 9 a.m. The witness stated that he has seen the light flashing yellow and red on prior occasions but never flashing green.[FN1]

Roscoe Loper, who works at J & J Marine Service at the above-mentioned intersection was next to testify. This witness testified that he had seen the traffic light in flash mode several times. The light always flashed yellow on Hallock Avenue and red on Columbia Avenue. The witness recounted one incident when he says the light was green in both directions for about two seconds.

Claimant next called Fozia Choudhry, who works in the Kool Mart Convenience Store near the above-mentioned intersection. According to her, she has seen Hallock Avenue with a steady green light and Columbia Street with a flashing yellow light.

The next person to testify was T. Stulpin.[FN2] Ms. Stulpin lives in the area and drives through this intersection to take her husband to work. On the date of the accident, the first time the witness drove through the intersection was early in the morning, on her way to drop off her husband at work. At that time, she saw the light was operating in its normal mode. She came back through the intersection at approximately 8:30 a.m. after dropping off her husband and the light was flashing yellow on Hallock Avenue. The witness stated she next came through the intersection at 11 a.m. and observed the light on Columbia Street was green. At approximately 1:00 or 2:00 p.m. the witness observed the light flashing yellow on Hallock Avenue. The last time the witness went through the intersection was at about 4:20 p.m. and she noticed that the light on Columbia Street was green.

Christine Casey, an employee of Xanadu Hair Salon, was the next to testify for the claimant. The salon is located in the shopping center at the above-mentioned intersection. On the afternoon of the accident, the witness saw the light on Hallock Avenue flashing yellow to red and back to yellow. This witness has only seen the light flash yellow in both directions.

Paige Patterson was the next witness called by claimant. Patterson was a passenger in the [*3]vehicle which hit claimant's vehicle. The witness's mother was the driver of the vehicle. She had been picked up at the Port Jefferson Station railroad station. The Patterson vehicle was southbound on Columbia Street. According to the witness, her vehicle was stopped about one block north of the incident location by the police for a seat belt inspection. Patterson testified that she was not aware what color the light was as they approached the intersection. In addition to the light, the witness stated that there is also a stop sign at the intersection. The vehicle came to a full stop at the intersection and waited before entering the intersection. The witness recalls looking out of the window on her side of the car, but does not recall if she saw any vehicles. As the vehicle entered the intersection, the witness recalls feeling an impact on the passenger side of the vehicle. Patterson testified that her car spun around and she noticed the other car flipped over onto its roof.

The last fact witness to testify for claimant was Matthew Schreiber, the driver of the vehicle in which decedent was a passenger. The witness is familiar with the intersection and had been at claimant's house, leaving with decedent to get a pizza. The restaurant is west of the intersection and claimant's house is just east of the intersection. The witness and decedent passed through the intersection on the way to the restaurant without incident.

At this time, the witness noticed that the light was flashing yellow for traffic on Hallock Avenue. The accident occurred at approximately 6:00 p.m. on February 20, 2002. The witness testified the natural lighting was dusk to dark and headlights were necessary. Schreiber stated he could see the traffic light from about ¾ of a mile west of the intersection. The light was still flashing yellow for traffic on Hallock Avenue. Schreiber first noticed the Patterson vehicle when both cars were approximately 50 to 100 feet from the intersection. Schreiber did not notice the other vehicle again until just before impact. He remembers the impact being on the front driver side of his vehicle and does not recall anything else until he regained consciousness and his vehicle was resting with its passenger side on the ground.

During previous trips through this intersection, the witness said the light on Columbia Street would flash red when it was flashing yellow on Hallock Avenue. Based upon his past experience, Schreiber assumed that the light was flashing red on Columbia Street on the date of the accident. He further presumed that the Patterson vehicle would stop at the light.

On cross-examination, Schreiber testified that the road was level and straight. He also indicated that the road and the weather were dry. Given the fact that it was dark, the witness was asked if he could see that the light facing Columbia Street was red. The witness stated he could not see what color the light facing Columbia Street was. However, during a hearing at the Department of Motor Vehicles, the witness testified that the light facing Columbia Street was flashing red. Schreiber also testified at a deposition in this matter that he was able to see that the Patterson vehicle had a flashing red light on Columbia Street. On re-direct the witness states that he was confused during the prior testimony.

Claimant's counsel read portions of three depositions into evidence without objection. The depositions were of George Dietz, David Smith, and John Ball, employees of the New York State Department of Transportation. The portions of their deposition testimony indicated that the traffic light at the intersection of Hallock Avenue and Columbia Street was on flash on January 15, 2002. Mr. Dietz found the signal on flash that day, saw that the circuit breakers had been tripped and reset them. The remainder of the testimony focused on the repairs that were done post-accident on February 20, 2002, which was resetting the breakers and retaping the wires in the center head. [*4]

Claimant called Daniel Burdett as an expert witness. The witness possesses degrees in mechanical engineering, industrial engineering and had some involvement in electrical engineering as well as designing engineering applications for data processing. Burdett has no experience in the design, maintenance or installation of traffic signals, or roadway design. He was called as an expert in both of these areas and in accident reconstruction. According to Burdett he has been qualified in these areas in other courts in New York. This Court allowed his testimony to the extent the Court would consider his qualifications on a question by question basis when deciding this matter.

The witness was given a hypothetical that the maintenance employees after the accident on February 20, 2002 found a frayed wire and retaped it to repair it. The witness opined that the simple taping of a "frayed" wire was contrary to good and accepted engineering practices. The witness said that such a taping was a temporary measure until the wire could be replaced.

The Court must point out that the hypothetical indicating a frayed wire being found post-accident is just that - - a hypothetical. The testimony read into the records merely indicates that the wire was retaped. The witness who did the taping did not recall the condition of the wire, other than to say it was the cause of a short which caused the breakers to be tripped. Dietz indicated that a wire would be taped even if a hairline opening was found in the outer covering of a wire. Frayed wires were never discussed at the depositions according to the testimony read by claimant's counsel. In addition, Burdett opined that more should have been done to this light due to the fact that its flash mode was not predictable. The light could flash in red, yellow or green to either street and sometimes the same color to both streets. He declared that his conclusion was based upon the statements of the witnesses as stated above.

In reconstructing the accident, the witness testified that the Patterson vehicle would have been traveling at 25 to 30 mph and impacted decedent's vehicle on the driver's side. The impact turned decedent's vehicle into the guide rail on the southeast corner of the intersection. The vehicle went along the rail until contacting a light pole which caused the vehicle to turn onto the passenger side.[FN3]

On cross-examination, Burdett conceded defendant was not aware the traffic light was in flash mode until post-accident when the police first notified the Town of Brookhaven (claimant's Exhibit 16). During direct testimony, the witness suggested that defendant should inspect this light three to four times a year. He would not say that three or four times a year should be the standard, but it was his suggestion. On cross-examination, the witness agreed that defendant inspected and performed preventive maintenance at least twice a year. The witness conceded that the traffic light was operating in the appropriate flash mode when the police were at the scene (defendant's Exhibit A).

Burdett testified that he was familiar with "call plugs" in the design of traffic lights,[FN4] but [*5]stated that he was aware that there was no such thing as a green plug, which, from an engineering standpoint, would indicate that the green light could not be on when the light was in flash mode. However, rather than think that the former witnesses for claimant may have been mistaken, Burdett insisted the light must be capable of having the green light lit.

Police Officer Richard Clages testified on behalf of the defendant. Officer Clages responded to the accident scene on February 20, 2002. He stated that the traffic light was in flash mode: flashing yellow for Hallock Avenue and red for Columbia Street. According to the officer, an intersection was considered to be a controlled intersection with the light in the flash mode.

Andrew Maresca, an employee of the New York State Department of Transportation, testified on behalf of defendant. First he testified as to what a call plug is.[FN5] Next he testified that only red, yellow and white plugs are made. White plugs are used for arrows, which do not apply to this traffic light. Red plugs will ensure that red lights come on in flash, and yellow plugs make yellow lights light. Without a green plug, it is impossible for the green bulb to light when the signal goes to flash mode. The witness testified the yellow plugs would be used on the major/dominant roadway, and red plugs would be used on the lesser/minor roadway. This testimony was consistent with the testimony of the fact witnesses who saw a flashing yellow light on Hallock Avenue whenever the light was on flash.

During cross-examination, Maresca testified that lights are rebuilt every year. The New York State Department of Transportation requires an inspection of every signal in the system at least once a year. If a short were found in one, that signal would be added to a signal repair list.

It is incumbent upon claimant to establish: the existence of a dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that damages were sustained (Gordon v American Museum of Natural History, 67 NY2d 836).

Claimant has failed in all aspects. First, claimant has not shown that a dangerous condition existed. The traffic light was in the flash mode. According to all testimony, the light on Hallock Avenue was flashing yellow. Claimant contends that the light on Columbia Street was flashing green. However, claimant offers no proof that it was. Matthew Schreiber, this Court believes, was not confused when he testified at the Department of Motor Vehicles hearing or at his deposition. The Court believes that in the dark he was able to see the color of the light facing Columbia Street. The Court finds that he was less than truthful at trial concerning being unable to see the light on Columbia Street. The only other person that could testify as to the color of the light was Paige Patterson. She did not recall seeing the color of the light.[FN6] Patterson did recall that in addition to the traffic light, there was a stop sign at the intersection. A review of the photos of the intersection reveal that no stop sign exists. The Court finds Patterson was not aware of the color of the light at [*6]the time her mother entered the intersection.

Claimant offered no one else who saw the traffic light at the time of the accident. The remainder of the witnesses testified that they have seen the light in the flash mode on other occasions. Only Craig Behrens, the family friend of the claimant, saw the light flash green.

The Court finds that at the time of the accident the intersection was properly controlled by the traffic light. The Court finds the light was properly working in the flash mode. Claimant's Exhibit 17 shows maintenance records for this intersection. Only one of the calls (February 17, 2001) indicates that the light was on flash. The other reports indicate inspections and preventive maintenance or a single bulb being out. The Court is also aware that the light was in the flash mode on January 15, 2002, a little over a month before the accident. Claimant has failed to show defendant was negligent in its operation and maintenance of the traffic light.

Given that the light was operating in an acceptable manner, the proximate cause of the accident was the Patterson vehicle for disobeying the traffic control device (see Martinez v State of New York, 29 AD3d 651).

Accordingly, the Court finds for the defendant and dismisses the Claim. All motions not specifically ruled upon are denied. The Clerk of the Court is directed to close the file.

Let judgment be entered accordingly.

Hauppauge, New York

December 27, 2006

JAMES J. LACK

Judge of the Court of Claims Footnotes

Footnote 1:Claimant's counsel attempted to use a prior written statement of the witness. However, the witness never indicated that he could not recall the events of the date of the accident or any other time claimant's counsel questioned him about. Defendant's counsel objected to the prior written statement and the objection was sustained. Counsel uses the statement in his post-trial memorandum as evidence. He asks this Court to accept it as a past recollection recorded. The witness never faltered on the stand and was able to answer the questions of both counsel. Claimant's attempt to again obtain evidential consideration for the statement, especially after the close of claimant's case, is improper and is denied.

Footnote 2:The witness stated that her first name was the letter "T".

Footnote 3: This testimony was elicited to support a theory that the light pole and guide rail were not designed correctly, in that the light pole should have been on the inside of the guide rail. Counsel attempted to introduce the theory on the eve of trial with the substitution of a new expert. The substitution was denied as was the attempt to introduce the new theory.

Footnote 4:According to the testimony of Andrew Maresca, a New York State Department of Transportation employee, "call plugs" are put into a switch on the light face to determine what bulb will light when the signal goes into flash mode.

Footnote 5:See footnote 4.

Footnote 6:Counsel improperly mentioned on numerous occasions and in his post-trial memorandum that Patterson told a detective that her mother had a green light.