Opinion
# 2014-010-044 Claim No. 117022
09-24-2014
SALVATORE GAMBINO v. THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY
ROVEGNO & TAYLOR, P.C. By: Robert B. Taylor, Esq. HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Jeane Strickland Smith, Assistant Attorney General
Synopsis
NYSTA vehicle struck Metro-North truck after a trooper entered lane in front of the TA vehicle. Court found TA 100% liable.
Case information
| UID: | 2014-010-044 |
| Claimant(s): | SALVATORE GAMBINO |
| Claimant short name: | GAMBINO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK and NEW YORK STATE THRUWAY AUTHORITY |
| Footnote (defendant name) : | The Court has, sua sponte, amended the captions to reflect the only proper party defendants. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117022 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | Terry Jane Ruderman |
| Claimant's attorney: | ROVEGNO & TAYLOR, P.C. By: Robert B. Taylor, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York By: Jeane Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 24, 2014 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) | 2014-010-045, 2014-010-046 |
Decision
These claims arise out of a motor vehicle accident that occurred at approximately 9:35 a.m. on March 26, 2009 on the northbound New York State Thruway, Interstate 87 (I-87). The claimants, Salvatore Gambino, Cologero Lobello and Horace Moulton, were Metro-North employees and passengers in a Metro-North truck driven by Roystone King. They were traveling, in the course of their employment, northbound on I-87 from Valhalla to Harriman. As they neared exit 16 in the Town of Woodbury, the Metro-North truck was struck by a New York State Thruway Authority vehicle driven by Michael O. Omoruyi. The Thruway Authority vehicle purportedly could not avoid hitting the Metro-North vehicle because a New York State trooper, in pursuit of another vehicle, had accelerated into the center lane in front of the Thruway Authority vehicle. The Thruway Authority vehicle and the Metro-North truck both crashed into the jersey barrier. The occupants of the vehicles were subsequently transported to the hospital by ambulance. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
By Decision and Order filed stamped August 16, 2013, Claim Nos. 117022, 117023 and 117024 were bifurcated and ordered to be tried jointly on the issue of liability.
At the location of the accident, I-87 has three northbound lanes. On March 26, 2009, the left lane was coned-off for construction and the center and right lanes were open for traffic. Adjacent to the right lane was a concrete jersey barrier.
Horace Moulton, a Metro-North employee for 25 years, testified that he was traveling northbound with coworkers to an assignment in Harriman. As they proceeded in the right lane, near exit 16, he observed a trooper car parked ahead at a distance of a half mile in the coned-off left lane. Moulton also noticed a Thruway Authority vehicle in the middle lane parallel to the Metro-North truck. Moulton estimated the speed of the truck and the Thruway Authority vehicle to be 45 mph. According to Moulton, the trooper moved from the coned lane into the center lane and cut off the Thruway Authority vehicle. The Thruway Authority vehicle veered right and hit the Metro-North truck, causing both vehicles to crash into the jersey barrier and come to a halt. Moulton testified at trial that the trooper did not have its emergency lights or siren activated as he entered the center lane. However, Moulton signed a statement at the hospital that the trooper's emergency lights had been activated (Ex. A).
The trooper continued northbound and subsequently returned to the accident scene. Using his cell phone, Moulton photographed the trooper engaged in a heated discussion with the driver of the Thruway Authority vehicle (Ex. 10).
Cologero Lobello, a Metro-North employee for 36 years, testified that he retired six months after the accident. He was the foreman on the Harriman assignment. Lobello testified that, prior to impact, he observed the trooper car move from a stationary position in the left lane into the middle lane and cut off the Thruway Authority vehicle causing it to collide with the Metro-North truck. Both vehicles then struck the jersey barrier. Lobello testified that the trooper's emergency lights were activated when he moved into the center lane.
Salvatore Gambino, a Metro-North employee for 29 years, testified that he observed the trooper leaving the coned-off lane without its emergency lights activated. At his EBT, however, Gambino stated that he recalled seeing the trooper's lights activated. Gambino also testified that the trooper moved gradually, as opposed to suddenly, into the center lane.
Dr. Michael Omoruyi, the driver of the Thruway Authority vehicle, testified that he was employed as an Informational Technology Specialist and was en route to Newburgh. Omoruyi was traveling in the center lane when, from a distance of a quarter mile, he saw the trooper stopped ahead in the coned-off left lane. He also noticed the Metro-North truck traveling to his right. According to Omoruyi, the trooper suddenly entered the center lane without any flashing lights or sirens. In an effort to avoid hitting the trooper, Omoruyi applied his brakes and veered right. As he moved right, however, he hit the Metro-North truck and they both proceeded into the jersey barrier. The trooper continued northbound.
A few minutes later, the trooper arrived at the accident scene and requested Omoruyi's license. Omoruyi did not want to discuss the accident with the trooper because Omoruyi believed the trooper had caused the accident. Omoruyi asked to speak with another officer. According to Omoruyi, the trooper then became aggressive and threatened to put Omoruyi in jail if he did not produce his license.
The trooper did not appear at trial and his examination before trial was received into evidence (Ex. C). On March 26, 2009, the trooper was assigned to roadway patrol with a license plate reader to find unregistered or stolen vehicles. He positioned himself in the coned-off left lane in "full, open view to traffic" (Ex. C, p 21). The trooper observed approaching traffic through his rearview mirror, his right side mirror, and by looking over his shoulder. He was trained not to rely entirely on mirrors. The trooper received a signal on the plate reader and decided to pursue the vehicle. He testified that:
The trooper retired from the state police on October 7, 2009 and moved to Florida.
"I had a set protocol that I immediately engage my lights to notify the traffic behind me that I was going to make some kind of a maneuver.
I would, after engaging my lights keep an eye on the vehicle that was triggering the plate reader, begin to check my mirrors and my [rearview] mirror for oncoming traffic and probably at that point threw my car into gear and began advancing forward.
My next move would be to accelerate to a reasonable speed within that construction lane so, that I am able to maneuver through those cones and into moving traffic in a safe manner and during that day, that particular day, I did initiate my lights, began moving forward within that lane.
I checked both of my mirrors a number of times because of the oncoming traffic that would have been coming in that center lane as well as looked over my shoulder prior to maneuvering between those cones.
Again, observing again the vehicle that I was attempting to apprehend, so that I could keep that in the line of sight and once I saw the lane was clear, I entered the center lane and began the apprehension of the vehicle that had triggered the plate reader. . . . [A]fter I got myself safely out into traffic, I left my lights going until I could catch up to the vehicle."
(Ex. C, pp 33-35). The trooper also testified that:
"This particular day, when I pulled out and observed that vehicle in front of me and in the process of continuing to observe traffic behind me after I entered the lane, I did observe a vehicle that appeared to have struck the Jersey barrier on the right-hand side.
. . . At that point in time as I'm also apprehending this vehicle I got on the air - - on the radio, notified headquarters that there may be an accident behind me, if it's reported I'm aware of it and I'll go back to it and to notify me if in fact that occurs."
(id. at 36-37).
After completion of his pursuit and encounter with the targeted car, the trooper radioed headquarters and was directed to investigate the accident. He approached the driver of the Thruway Authority car who was agitated and stated that he had been hit by a trooper car and forced into the jersey barrier. The trooper denied causing the accident and making contact with any other vehicle. The trooper also interviewed the others at the scene.
Analysis
Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimants have failed to establish by a preponderance of the evidence that the trooper acted with reckless disregard for the safety of others (see Mouring v City of New York, 112 AD3d 588 [2d Dept 2013], cf. Tutrani v County of Suffolk, 64 AD3d 53 [2d Dept 2009] [police officer was reckless in abruptly coming to a virtual stop in rush hour traffic without warning and a contributing cause of a rear-end collision behind him]). The trooper was positioned in full, open view in a lane coned-off due to construction. Traffic was moving at approximately 45 mph through the construction zone and the trooper was clearly observed. Claimants' testimony as to whether the trooper's lights were activated was inconsistent and contradictory. The testimony of the trooper in this regard, however, was clear and convincing and supported by Lobello's trial testimony, the examination before trial testimony of Gambino, and Moulton's signed statement. Thus, the Court finds that the trooper lights had been activated. The statement signed by Moulton further indicated that the trooper's lights were activated while he was in the left lane and that he drove "about 15 feet" before entering the center lane (Ex. A). Gambino also testified at trial that the trooper's movement into the center lane was "gradual" (T:64). Omoruyi, the driver of the Thruway Authority vehicle, was keenly aware of the trooper's location as Omoruyi testified that he saw the trooper stopped in the coned-off lane at a distance of a quarter of a mile.
References to the trial transcript are preceded by the letter "T."
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Given the observable actions of the trooper and his gradual movement into the center lane with his lights activated, the Court rejects claimants' arguments that the trooper's conduct presented a sudden or emergent situation to which the driver of the Thruway Authority Vehicle did not have sufficient time to react to or to avoid. Rather, the Court finds that the driver of the Thruway Authority vehicle was negligent in failing to exercise reasonable care under the circumstances to avoid causing an accident (see Hauswirth v Transcare N.Y., Inc., 97 AD3d 792 [2d Dept 2012] [operator of vehicle has duty to see what should be seen and to exercise care under the circumstances to avoid an accident]).
Accordingly, the Court finds that the driver of the Thruway Authority vehicle was the sole proximate cause of the accident and is 100 percent liable for the accident. Accordingly, the claims as against the State of New York are dismissed and a trial on the issue of damages shall be held as soon as practicable.
LET INTERLOCUTORY JUDGMENTS BE ENTERED ACCORDINGLY.
September 24, 2014
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims