Greenberg v State of New York
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[*1]
Greenberg v State of New York
2014 NY Slip Op 51104(U)
Decided on June 24, 2014
Ct Cl
Ruderman, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on June 24, 2014
Ct Cl
David Greenberg, Claimant(s)
against
The State of New York , Defendant(s)
120989
Claimant's attorney: LAW OFFICE OF THANIEL J. BEINERT & ASSOC.
By:Joseph Valente, Esq.
Marc A. Merolesi, Esq.
Defendant's attorney:HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By:J. Gardner Ryan, Assistant Attorney General
Terry Jane Ruderman, J.
Claimant testified that at approximately 2:00 p.m. he was driving his Miata with his friend John Chang en route to Bear Mountain State Park. They were headed westbound on Seven Lakes Drive, having entered the road from the Long Mountain Traffic Circle. In that area, Seven Lakes Drive is a two-lane road with a double yellow line separating the eastbound and westbound travel lanes. The pavement was clear and dry, although packed snow from a prior storm was adjacent to both shoulders. The shoulder on the westbound side was less than the width of the Miata. Traffic was light.
Shortly after entering Seven Lakes Drive, claimant noticed the state truck approximately 200 yards behind him. After traveling about one mile, claimant realized he may have made a wrong turn. He asked Chang to check the directions on his smartphone; however Chang's efforts were unsuccessful.
After driving a short distance, claimant observed what he believed to be a rest area on the opposite side of the roadway. Claimant intended to stop at the rest area to ascertain the proper route to Bear Mountain. He engaged his left blinker, reduced his speed and veered left. Claimant estimated that he had been traveling at a speed less than the 40 mph speed limit. He testified that he checked oncoming traffic, but that he did not look in his rearview mirror.Claimant did not see or hear the truck approaching. In the middle of his turn, after he had entered the eastbound lane, the truck struck claimant's car on the driver's side.
After the impact, claimant told Chang to call 911. The door and top of the car were removed by emergency responders and claimant was extricated from the vehicle and transported to the hospital.[FN1]
John Chang testified that prior to the impact, claimant realized that he was lost and was looking for a place to stop and check the GPS. Chang did not observe anything on the road because he was focused on his smartphone.
Sergeant David Szekeres testified that on January 9, 2011, he was a detective with the Park Police and was directed to respond to the accident. Szekeres did not recall any conversations at the scene; although he remembered speaking to claimant and Chang at the hospital. Szekeres spent approximately 45 minutes at the scene and took photographs. At trial, referring to a photograph of the Miata after the accident, Szekeres indicated what he believed to be the path of the car (Ex. L). There were roadway markings depicted in the photograph that Szekeres attributed to claimant's accident although there was no evidentiary basis to conclude that they were related to claimant's accident or observed on January 9, 2011 (Ex. A). Szekeres conceded at trial that, although he considered the marks to be relevant, there is no mention of them in his report. Szekeres is not an accident reconstructionist, nor was he qualified as an expert at trial. The Court did not accord any weight to his testimony.
Lieutenant Rhonda Wallach testified that on January 9, 2011, she was the sergeant- in-charge of patrol in the vicinity of the accident.She noted that the purported rest area was not in service and that the shoulder on the eastbound side of the roadway was eight to ten feet at its widest point. Several other Park Police officers were present when Wallach arrived at the scene. Her observations were consistent with claimant making a U-turn in front of traffic. Wallach testified that her conclusions were based upon her observations at the scene, including the damage to the front fender of the truck and to claimant's vehicle, the tire marks on the roadway, and Stewart's statement that claimant turned out in front of the truck. Wallach did not take a statement from claimant.
Wallach was responsible for writing the Investigative Report. She acknowledged that there was nothing in her report describing or measuring the tire marks (Ex. A, pp 2-3) and she conceded that these were important facts; however she considered her observations and Stewart's statement to be more significant.[FN2]
Eric Stewart testified that on January 9, 2011, he was employed as a Park Worker IX, which he described as similar to a park ranger. His duties included enforcing park rules and regulations, performing traffic control, assisting drivers needing attention and searching for lost hikers. On January 9, 2011, as Stewart traveled on routine patrol and entered Seven Lakes Drive from the traffic circle, he observed claimant's car ahead at a distance of approximately 10 car lengths.
Stewart testified that he observed claimant apply his brakes and reduce his speed prior to the rest area. In response, Stewart reduced his speed to 15 to 20 mph. He then saw claimant pull onto the right shoulder and slow down to a nearly complete stop. Stewart then observed claimant activate his left directional signal. Stewart interpreted the activation of claimant's left directional [*2]signal, as contrasted to claimant's hazard lights, as an indication that claimant was not in need of assistance. Stewart assumed that claimant was "going to let me pass" before claimant continued back onto the roadway (T:19).[FN3] Claimant, however, turned left in front of Stewart and Stewart swerved in an attempt to avoid hitting claimant. Despite his efforts, Stewart struck the Miata in the middle of the eastbound lane. Stewart testified that due to the roadway's configuration there was no room for him to maneuver to the right to avoid claimant. Stewart maintained that the impact was unavoidable and that had he not veered left, the crash would have occurred in the westbound lane. Stewart acknowledged that claimant's left directional could also be indicative of his intention to return to the roadway.
Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the weight of the credible evidence supports a finding of liability 60% attributable to claimant and 40% attributable to defendant. Indeed, claimant's own testimony establishes his negligence by his admitted failure to look in his rearview mirror, despite his awareness of the truck behind him, before proceeding to make the left turn (see White v Gooding, 21 AD3d 485 [2d Dept 2005] [finding of negligence where vehicle pulled toward the side of the road then proceeded back across moving lane of traffic without ascertaining what traffic was behind her]). Stewart is also not without fault as he observed claimant's left signal and acknowledged that it could be indicative of his intention to return to the roadway; therefore claimant's conduct was not totally unexpected and Stewart should have maintained control of his vehicle (cf. Albinowski v Hoffman, 56 AD3d 401, 401 [2d Dept 2008] [driver not obligated to anticipate that vehicle parked on shoulder will "unexpectedly" move into travel lane]). A trial on the issue of damages will be held as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY. Footnotes
Footnote 1:At the hospital, claimant was issued a traffic citation for an illegal U-turn (Ex. A, p 17). He later pled guilty to a violation for illegal parking on the pavement (Ex. M).
Footnote 2:Wallach's testimony regarding any marks on the roadway was accorded no weight.
Footnote 3:References to the trial transcript are preceded by the letter "T."
Decided on June 24, 2014
Ct Cl
David Greenberg, Claimant(s)
against
The State of New York , Defendant(s)
120989
Claimant's attorney: LAW OFFICE OF THANIEL J. BEINERT & ASSOC.
By:Joseph Valente, Esq.
Marc A. Merolesi, Esq.
Defendant's attorney:HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
By:J. Gardner Ryan, Assistant Attorney General
Terry Jane Ruderman, J.
On a sunny afternoon on January 9, 2011, Eric Stewart, an employee of the New York State Office of Parks, Recreation and Historic Preservation with duties similar to a park ranger, was driving a state-owned Ford F350 Ranger truck on Seven Lakes Drive near Harriman State Park. Stewart observed claimant ahead of him driving a Mazda Miata. As Stewart proceeded behind claimant, claimant slowed down near the side of the road. Claimant then signaled left, reentered the roadway and attempted a left turn. Stewart tried to avoid claimant; nonetheless he struck claimant in the middle of his attempted turn. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
Claimant testified that at approximately 2:00 p.m. he was driving his Miata with his friend John Chang en route to Bear Mountain State Park. They were headed westbound on Seven Lakes Drive, having entered the road from the Long Mountain Traffic Circle. In that area, Seven Lakes Drive is a two-lane road with a double yellow line separating the eastbound and westbound travel lanes. The pavement was clear and dry, although packed snow from a prior storm was adjacent to both shoulders. The shoulder on the westbound side was less than the width of the Miata. Traffic was light.
Shortly after entering Seven Lakes Drive, claimant noticed the state truck approximately 200 yards behind him. After traveling about one mile, claimant realized he may have made a wrong turn. He asked Chang to check the directions on his smartphone; however Chang's efforts were unsuccessful.
After driving a short distance, claimant observed what he believed to be a rest area on the opposite side of the roadway. Claimant intended to stop at the rest area to ascertain the proper route to Bear Mountain. He engaged his left blinker, reduced his speed and veered left. Claimant estimated that he had been traveling at a speed less than the 40 mph speed limit. He testified that he checked oncoming traffic, but that he did not look in his rearview mirror.Claimant did not see or hear the truck approaching. In the middle of his turn, after he had entered the eastbound lane, the truck struck claimant's car on the driver's side.
After the impact, claimant told Chang to call 911. The door and top of the car were removed by emergency responders and claimant was extricated from the vehicle and transported to the hospital.[FN1]
John Chang testified that prior to the impact, claimant realized that he was lost and was looking for a place to stop and check the GPS. Chang did not observe anything on the road because he was focused on his smartphone.
Sergeant David Szekeres testified that on January 9, 2011, he was a detective with the Park Police and was directed to respond to the accident. Szekeres did not recall any conversations at the scene; although he remembered speaking to claimant and Chang at the hospital. Szekeres spent approximately 45 minutes at the scene and took photographs. At trial, referring to a photograph of the Miata after the accident, Szekeres indicated what he believed to be the path of the car (Ex. L). There were roadway markings depicted in the photograph that Szekeres attributed to claimant's accident although there was no evidentiary basis to conclude that they were related to claimant's accident or observed on January 9, 2011 (Ex. A). Szekeres conceded at trial that, although he considered the marks to be relevant, there is no mention of them in his report. Szekeres is not an accident reconstructionist, nor was he qualified as an expert at trial. The Court did not accord any weight to his testimony.
Lieutenant Rhonda Wallach testified that on January 9, 2011, she was the sergeant- in-charge of patrol in the vicinity of the accident.She noted that the purported rest area was not in service and that the shoulder on the eastbound side of the roadway was eight to ten feet at its widest point. Several other Park Police officers were present when Wallach arrived at the scene. Her observations were consistent with claimant making a U-turn in front of traffic. Wallach testified that her conclusions were based upon her observations at the scene, including the damage to the front fender of the truck and to claimant's vehicle, the tire marks on the roadway, and Stewart's statement that claimant turned out in front of the truck. Wallach did not take a statement from claimant.
Wallach was responsible for writing the Investigative Report. She acknowledged that there was nothing in her report describing or measuring the tire marks (Ex. A, pp 2-3) and she conceded that these were important facts; however she considered her observations and Stewart's statement to be more significant.[FN2]
Eric Stewart testified that on January 9, 2011, he was employed as a Park Worker IX, which he described as similar to a park ranger. His duties included enforcing park rules and regulations, performing traffic control, assisting drivers needing attention and searching for lost hikers. On January 9, 2011, as Stewart traveled on routine patrol and entered Seven Lakes Drive from the traffic circle, he observed claimant's car ahead at a distance of approximately 10 car lengths.
Stewart testified that he observed claimant apply his brakes and reduce his speed prior to the rest area. In response, Stewart reduced his speed to 15 to 20 mph. He then saw claimant pull onto the right shoulder and slow down to a nearly complete stop. Stewart then observed claimant activate his left directional signal. Stewart interpreted the activation of claimant's left directional [*2]signal, as contrasted to claimant's hazard lights, as an indication that claimant was not in need of assistance. Stewart assumed that claimant was "going to let me pass" before claimant continued back onto the roadway (T:19).[FN3] Claimant, however, turned left in front of Stewart and Stewart swerved in an attempt to avoid hitting claimant. Despite his efforts, Stewart struck the Miata in the middle of the eastbound lane. Stewart testified that due to the roadway's configuration there was no room for him to maneuver to the right to avoid claimant. Stewart maintained that the impact was unavoidable and that had he not veered left, the crash would have occurred in the westbound lane. Stewart acknowledged that claimant's left directional could also be indicative of his intention to return to the roadway.
Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the weight of the credible evidence supports a finding of liability 60% attributable to claimant and 40% attributable to defendant. Indeed, claimant's own testimony establishes his negligence by his admitted failure to look in his rearview mirror, despite his awareness of the truck behind him, before proceeding to make the left turn (see White v Gooding, 21 AD3d 485 [2d Dept 2005] [finding of negligence where vehicle pulled toward the side of the road then proceeded back across moving lane of traffic without ascertaining what traffic was behind her]). Stewart is also not without fault as he observed claimant's left signal and acknowledged that it could be indicative of his intention to return to the roadway; therefore claimant's conduct was not totally unexpected and Stewart should have maintained control of his vehicle (cf. Albinowski v Hoffman, 56 AD3d 401, 401 [2d Dept 2008] [driver not obligated to anticipate that vehicle parked on shoulder will "unexpectedly" move into travel lane]). A trial on the issue of damages will be held as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY. Footnotes
Footnote 1:At the hospital, claimant was issued a traffic citation for an illegal U-turn (Ex. A, p 17). He later pled guilty to a violation for illegal parking on the pavement (Ex. M).
Footnote 2:Wallach's testimony regarding any marks on the roadway was accorded no weight.
Footnote 3:References to the trial transcript are preceded by the letter "T."
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