Opinion
# 2015-045-007 Claim No. 120763 Motion No. M-85151 Cross-Motion No. CM-85683
03-06-2015
JOAQUIN TREJO, LUZ E. TREJO, ADALID TREJO and NELY SUYAPA TREJO v. THE STATE OF NEW YORK
Robert S. Fader, P.C. By: Robert S. Fader, Esq. Hon. Eric T. Schneiderman, Attorney General By: Theresa N. Wilson, Assistant Attorney General
Synopsis
MVA on icy roadway. Both claimant and defendant move for summary judgment.
Case information
| UID: | 2015-045-007 |
| Claimant(s): | JOAQUIN TREJO, LUZ E. TREJO, ADALID TREJO and NELY SUYAPA TREJO |
| Claimant short name: | TREJO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 120763 |
| Motion number(s): | M-85151 |
| Cross-motion number(s): | CM-85683 |
| Judge: | GINA M. LOPEZ-SUMMA |
| Claimant's attorney: | Robert S. Fader, P.C. By: Robert S. Fader, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, Attorney General By: Theresa N. Wilson, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 6, 2015 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers were read and considered by the Court on these motions: Claimants' Notice of Motion, Claimants' Affirmation in Support with annexed Exhibits A-R, Defendant's Notice of Cross-Motion, Defendant's Affirmation in Opposition and in Support of Cross-Motion with annexed Exhibits A-G, Claimants' Affirmation in Opposition to Cross-Motion and in Reply to Opposition and Defendant's Affirmation in Reply with annexed Exhibits A-C.
Claimants, Joaquin Trejo, Luz E. Trejo, Adalid Trejo and Nely Suyapa Trejo, have brought this motion pursuant to CPLR 3212 seeking an order granting summary judgment in their favor. Defendant, the State of New York, has brought a cross-motion pursuant to CPLR 3211 and 3212 seeking an order granting it summary judgment and dismissing the claim.
Claimants state that on October 30, 2011 at approximately 6:30 a.m. Joaquin Trejo and his brother, Adalid Trejo, were involved in an accident which took place on Sunrise Highway, State Route 27. At the time of the accident, claimants were outside of their motor vehicle which had previously impacted the median divider and another fence on the side of Route 27.
Unless noted, all further references to claimants shall refer to Joaquin Trejo and Adalid Trejo, as the claims of Luz E, Trejo and Nely Supaya Trejo are derivative in nature.
On the morning of the accident claimants left their home and went to pick up their friend, identified as "Franklin." The three men then left Franklin's house with Adalid Trejo driving the motor vehicle. Both claimants testified that they then traveled on the Southern State Parkway They exited the parkway at Exit 41and proceeded onto the service road of Route 27. Their vehicle was on the service road for approximately one minute, at which point they entered Route 27. When they entered the highway of Route 27, Joaquin Trejo testified that there was a fireman present, due to a previous accident. Joaquin Trejo observed a stopped motor vehicle facing the wrong direction on Route 27 next to a fire truck on Route 27. He did not observe any police vehicles on the roadway. Joaquin Trejo testified that his brother stopped their vehicle and that the fireman directed them to proceed carefully, because the road was "no good." At this point, Adalid Trejo proceeded to drive the motor vehicle in the center lane of Route 27. Joaquin Trejo stated that the motor vehicle was in the center lane for some period of time before it "slipped" and struck the median divider on Route 27. He estimated that the vehicle was traveling at 35 miles per hour. After impacting the median divider, the vehicle "slipped" across the entire width of Route 27 and impacted a metal fence on the opposite side of Route 27. After their impact with the fence on the opposite side of Route 27, the bumper of their vehicle became caught up on the fence. As a result, Adalid Trejo backed the vehicle up slightly and all of the occupants got out of the vehicle to inspect the damage. Joaquin Trejo could not remember seeing another vehicle before he was struck by it. The next thing he remembered was waking up five steps in front of his vehicle. He stated that it was dark outside at the time of the accident. He testified that it had snowed the night before the accident. Mr. Trejo did not recall seeing any sand or salt on the ground at the accident location. It was not raining or snowing at the time of the accident. Franklin called 911 after the other vehicle struck claimants.
Joaquin Trejo testified that he could not see the fire truck or the location of the first accident when they lost control of their vehicle. He described the color of the street at the time of the accident as being "gold."
Adalid Trejo testified that at the time of the accident he was employed by a company called HEM Corp., located in Copiague, New York. He typically went to work by utilizing his brother's motor vehicle. He stated that prior to the accident he picked up an individual named Franklin before he went to work that day. After picking up Franklin, Adalid Trejo traveled on the Southern State Parkway and got off at Exit 41A to proceed on Route 27. He believed that his vehicle was traveling at approximately 30 miles per hour while on the Southern State Parkway due to slippery and icy road conditions. He was traveling on the Southern State Parkway for approximately five minutes before he exited to Route 27. When Adalid Trejo initially entered Sunrise Highway, he saw an accident which occurred in the roadway. He observed a fireman near the accident who had informed Adalid Trejo "to slow down because the street was ugly, there was black ice." The vehicle that he observed, in this unrelated accident, was the only vehicle involved in the accident. There was a fire truck at that location but there was not a police vehicle at that location.
After being advised about the condition of the roadway, Adalid Trejo continued on the roadway and operated his vehicle at a speed below 30 miles per hour. At some point Mr. Trejo he felt his vehicle slip and strike the median divider. His vehicle then went across the other lanes of traffic and struck the fence on the side of the road. Adalid Trejo testified that the accident occurred less than five minutes after he left the fireman. He could not see the fire truck from the area where the accident occurred. There were no other vehicles on the road at the time of the accident. Adalid Trejo described the road conditions as "normal, but there was black ice." He did not observe any salt or sand on the road the location of the accident.
After claimants' vehicle struck the fence Adalid Trejo got out of his vehicle and then got back in it to move it back slightly. When Adalid Trejo got out of the vehicle for the second time, he heard an impact but did not hear any screeching tires prior to the impact. Adalid Trejo testified that a second vehicle struck the rear of claimants' vehicle causing Adalid Trejo's foot to be caught between claimants' vehicle and the fence. Adalid Trejo stated that the time between when his vehicle first struck the fence and the second vehicle struck his vehicle was less than five minutes. He testified that after the second vehicle impacted his vehicle, he attempted to speak to his brother, however, his brother had lost consciousness. He then told Franklin to shake his vehicle because Adalid Trejo's legs were pinned between the fence and the bumper of the car. However, the tires were locked and they could not shake the vehicle to remove him. At this point, Adalid Trejo lost consciousness and only remembered waking up in the hospital.
Mr. David Seaman testified that he is employed by the New York State Department of Transportation and has been for approximately eight and a half years. Specifically, Mr. Seaman testified that he is a bridge repair supervisor operating in the bridge maintenance division of the New York State Department of Transportation. Mr. Seaman's job duties involve bridge maintenance for the Department of Transportation. His duties also include supervising a work crew. This work crew performs routine bridge maintenance as well as emergency repairs throughout the year. During the winter, this crew responds to snow and ice events similar to the way highway maintenance personnel respond. He stated that highway maintenance personnel take care of roadways in the same way that his crew takes care of bridges. They all plow snow off state roads. He stated that the specific portion of Route 27 where the subject accident took place is located near Hubbard's Path.
At his deposition, Mr. Seaman was shown a copy of an "INFORM" log. He testified that, even though he had reviewed the log in the morning prior to his deposition, he had never seen an INFORM log prior to that day. He did not know if the document had been generated by the Department of Transportation. Mr. Seaman and his crew do not work on Saturdays.
Mr. Seaman was not scheduled to work on Sunday, October 30, 2011, however, he did work on that particular day. He was present at work on Sunday, October 30, 2011 because he received a call at around 5:30 a.m. from INFORM regarding road icing on Route 27 between Route 231 and Route 109. It was Mr. Seaman's intention to go to work on October 30, 2011 to treat the section of Route 27 between Route 231 and Route 109.
It took Mr. Seaman approximately 40 minutes to get to his office in Babylon that morning due to icy road conditions. The Babylon facility is the bridge maintenance facility for Long Island. The facility is equipped with various trucks, which can be utilized to plow snow and also spread salt on roadways to melt ice. The Department of Transportation utilizes salt to reduce icing on the roadways that they service. Mr. Seaman stated that snow plows were not required on October 30, 2011.
When he arrived at the Babylon facility, he was required to set up a truck to spread salt. Although he did not personally operate a truck that day, he did dispatch one to dispense salt. Mr. Seaman dispatched this truck to spread salt in the area of Route 27 in both directions between Route 109 and Route 231. Generally, the Department of Transportation requires its workers to be at a work location several hours before a storm arrives. If something happens outside of their normal work schedule, they are required to respond within one hour. Typically, his department does not perform any road treatments or salt treatments on the roadways before a storm actually arrives. Mr. Seaman testified that he did not recall a storm taking place on October 30, 2011. He did not see any snow on the ground on that date. However, he did testify that he knew that there were icy spots on the road. Although he remained at the Babylon facility on the date of the accident, he did dispatch one salt truck to the area where the accident took place, which did not have a plow attached to the front. The operator of the vehicle can increase or decrease the amount of salt being spread as necessary. Typically, as a driver operating a salt spreading vehicle goes over a bridge or overpass, he is required to utilize his own judgment and to make sure that enough salt is spread over these particular areas. Overpasses and bridges generally require more treatment than other portions of a roadway.
Mr. Seaman received a phone call at 7:02 a.m. on October 30, 2011 which reported a multiple vehicle accident due to icing on Route 27 in the area of exits 38 and 39. The location included the Hubbard's Path overpass portion of Route 27. Mr. Seaman was unaware of any other accidents on the roadway prior to the 7:02 a.m. call. At the time Mr. Seaman received this call, his crew had just finished putting snow and ice equipment together. Mr. Seaman testified that the equipment was not ready for the snow and ice because winter season starts on November 1. They had to remove an impaction attenuator from the rear of the dump truck and install the salt spreader and then load salt onto the truck.
Mr. Seaman dispatched Allen Young and Matthew Busam to operate the salt spreading vehicle, which was to spread salt in the affected areas. He testified that these individuals left the Babylon facility approximately one minute before he received the 7:02 phone call regarding the accident. Mr. Seaman stated that the salt truck would travel south on Route 109 and enter Route 27 at Exit 37 westbound. They would then proceed about 100 feet before turning around at a traffic light. He stated that the Hubbard's Path overpass was about a mile from Exit 37. They had to cover all three lanes of Route 27 from Exits 37 to 40 in both directions. The process can take 45 minutes to an hour. Mr. Seaman stated that it was light outside at 7:00 a.m. on October 30, 2011. He also testified that salt was not on the roadway prior to 7:00 a.m. on that date.
Matthew Busam testified at his deposition that he is employed by the New York State Department of Transportation in the bridge maintenance division. He works out of the building located at 325 West Main Street in Babylon, New York. Mr. Busam has been employed by the New York State Department of Transportation for approximately twenty-four years. His specific job title for at least the past 10 years is Bridge Repair Mechanic. In October of 2011, Mr. Busam was responsible for the area of Route 27 in both directions from its intersection with the Robert Moses Causeway to its intersection with Route 110. That area includes the portion of Route 27 that crosses over Hubbard's Path, the location of the subject accident. Mr Busam stated that his supervisor is David Seaman.
Mr. Busam's job responsibilities include removal of snow and ice on the roadway. He also operates a snow plow and a salt spreading truck. Mr. Busam was unaware of any specific date which the New York State Department of Transportation considered the beginning of the snow season. He stated that the New York State Department of Transportation issued a yearly manual concerning his snow and ice removal responsibilities. Mr. Busam testified that the manual did not dictate a time frame for responding to snow and ice conditions on a roadway. He was never told that he was required to respond to a snow and ice event within one hour if it occurred outside his normal work hours. It usually takes Mr. Busam 30 minutes to get to work from his home in Mastic Beach. He stated that there were five trucks at the facility for snow and ice removal.
Mr. Busam testified that he received a phone call from Mr. Seaman indicating that he was required to come to work on Sunday, October 30, 2011. As he made his way to work on the date of the accident, Mr. Busam experienced slippery areas of the roadway, specifically on the bridge decks along Route 27 traveling westbound. It took Mr. Busam an hour to get to work that day. Mr. Busam testified the he observed approximately three or four car accidents while making his way to work that day and that a couple of portions of Route 27 were closed to vehicular traffic. He observed Suffolk County police at the accident scenes.
After arriving at the Babylon facility, Mr. Busam stated that the truck needed to be loaded with salt. He stated that by the time he arrived at the facility Mr. Seaman had started the truck and brought it to the loading ramp. Another worker, Al Young, then loaded the truck with salt which took about 5 minutes to complete. Mr. Busam then began operating the truck to spread the salt on Route 27 in the areas that he was assigned. Mr. Young was seated in the passenger seat during this operation. It took Mr. Busam approximately five minutes to reach the intersection of Route 109 and Route 27 from the time he left the Babylon facility. The Hubbard's Path overpass or bridge is approximately 5 miles from where Mr. Busam entered Route 27. Mr. Busam observed two accidents at the Hubbard's Path overpass, one on each side of the highway. Mr. Busam stated that it was his understanding that the overpasses were more slippery than the roadway. As Mr. Busam was operating the salt spreader in the eastbound direction on Route 27, he did not notice any evidence of prior treatment to the roadway for snow and ice conditions before he got there.
Mr. Busam continued to spread salt from the Hubbard's Path area to the exit for the Robert Moses Causeway, which is approximately five miles in distance. Mr. Busam saw at least two accidents within this span of the roadway. Mr. Busam testified that he did not see any salt or sand on the roadway prior to his arrival there. Mr. Busam observed the accident scene at Hubbard's Path going westbound. Route 27 was blocked off at that location. After Mr. Busam observed the vehicles involved in the subject accident, he testified that he backed his vehicle up and continued to apply salt in the area of the overpass. He testified that he made approximately two or three passes with his salt spreading vehicle in this specific area. He then continued to salt the remaining portion of Route 27 up to its intersection with Route 109. He went along Route 27 salting the roadway about four or five times which took over an hour to finish. He believed that there were Suffolk County police at the subject accident scene. There are approximately 12 individuals in the bridge maintenance department assigned to the area spanning Route 110 to the Robert Moses Causeway. Mr. Busam testified that to his knowledge only Mr. Young, Mr. Seaman and himself were working that morning.
Mr. Richard Samuel, Jr. testified at a deposition in this matter that he is a police officer, employed by the Freeport Police Department for the past thirteen years. Mr. Samuel works as a traffic officer for the Freeport Police Department. His duties as a traffic officer include responding to and investigating automobile accidents. On the date of the accident, Mr. Samuel was not at the accident scene in his official capacity as a police officer. Mr. Samuel arrived at the scene of the accident somewhere between 5:00 a.m. and 6:30 a.m. He had been traveling from his home to work. He stated that most of the exits on Route 27 were closed due to ice on the roads and that he had to travel on the service road. Mr. Samuel had encountered more than one accident while traveling on his way to work on the date of this accident. Mr. Samuel was traveling on Route 27 in the center lane at a speed of approximately 35 to 40 miles per hour. He was operating his own private vehicle at the time. Mr. Samuel considered himself on-duty once he arrived at the scene of the subject accident. Mr. Samuel did not remember there being any sand or salt on the roadway prior to his arrival at the accident location. He described the traffic volume as being very light during his trip to work. When Mr. Samuel arrived at the accident scene, he observed two vehicles that were involved in the accident. These vehicles were located in the westbound lanes of Route 27. He described a pickup truck which was angled into the railing of the bridge and a car which was "sideways into the pickup truck." As he arrived at the accident scene, Mr. Samuel noticed a body straddling the center and right lane of the roadway. Mr. Samuel was traveling at a speed of 30 to 35 miles per hour at that time. He described the road conditions as very icy. He swerved his vehicle into the left lane to avoid striking the body in the roadway and then moved his vehicle over to the right lane before stopping his truck. He immediately ran out of his vehicle and attempted to offer assistance. He stated that he never lost control of his vehicle. Mr. Samuel observed an individual screaming in front of the pickup truck. He stated that the leg of this person was pinned between the pickup truck and the bridge guardrail.
The party seeking summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact from the case (Cox v Kingsboro Med. Group, 88 NY2d 904 [1996]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once the proponent of a summary judgment motion establishes a prima facie showing then the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to demonstrate the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In determining a summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party (Gradwohl v Stop & Shop Supermarket Co., LLC, 70 AD3d 634 [2d Dept 2010]).
The State of New York has a duty to maintain its roadways in a reasonably safe condition and the breach of that duty can result in liability to the defendant if the ascribed negligence in maintaining the road is a proximate cause of the accident (Wittorf v City of New York, 23 NY3d 473 [2014]). In addition, the State has a nondelegable duty to properly design, construct and maintain its roadways in a condition which is reasonably safe for those who use them (Friedman v State of New York, 67 NY2d 271 [1986]). However, the State is not an insurer of the safety of its roadways, and the mere fact that an accident resulting in injury occurred does not render the State liable (Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take reasonable measures to correct the condition (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). When an alleged dangerous condition is at issue, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy the dangerous condition (Timcoe v State of New York, 267 AD2d 375 [2d Dept 1999]). To establish constructive notice, the "defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a defendant] to discover and remedy it ..." (Gordon, 67 NY2d at 837 [citations omitted]).
At the outset, defendant acknowledges that on the dates in question it was responsible for snow and ice removal from State Route 27, westbound, at the overpass with Hubbard's Path, Town of Babylon, County of Suffolk.
Claimants submitted an affidavit from Richard M. Balgowan, an expert in highway and municipal engineering in support of their motion. After providing his credentials and listing the materials he reviewed in formulating his opinion, Mr. Balgowan stated that at the time of the accident it was approximately 36 degrees Fahrenheit, mostly cloudy with winds at 17 miles per hour gusting to 26 miles per hour. He stated that it had snowed for several hours prior to the subject accident. He stated that although he did not know the pavement temperatures on Route 27 "it is likely that there would have been areas where pavement temperatures were at or below freezing. This is especially true for bridge decks such as at the crash site." Mr. Balgowan opined that black ice was the cause of the subject accident. Mr. Balgowan continued that defendant failed to be in compliance with their own policies and procedures in being prepared for the October 30, 2011 winter event. Mr. Balgowan stated that defendant should have pre-treated Route 27 in advance of any wet roads freezing and should have mobilized workers to staff trucks to patrol the roads for winter related issues.
Mr. Balgowan stated that the Accuweather forecast provided to defendant at 3:30 p.m. on October 29, 2011 predicted rain expected to mix with snow that afternoon around New York City, then change to all snow later that afternoon. They expected less accumulations on roadways with 1 to 3 inches of snow on non-paved surfaces on western Long Island. A slushy coating to an inch on paved surfaces. At 12:30 a.m. on October 30, 2011, Accuweather stated that the storm was winding down with accumulations on Long Island generally less than an inch. It predicted temperatures on Long Island to drop at or near freezing which will create slick areas on roadways. At 6:00 a.m. on October 30, 2011, Accuweather predicted a mostly dry day with temperatures on Long Island that would not drop below freezing. Mr. Balgowan stated that weather data obtained from Weather Underground showed a mix of snow and rain which turned to all rain before ending on October 30, 2011 at 1:19 a.m. with temperatures then ranging between 33 and 35 degrees Fahrenheit until the time of the accident. Mr. Balgowan stated that after he reviewed all the climatological data available in this matter that it ceased precipitating at approximately 2:53 a.m. on October 30, 2011.
Mr. Balgowan recites the ambient temperature as being 36 degrees Fahrenheit at the time of the accident in his engineering report.
Mr. Balgowan opined that defendant could have been out of the maintenance yard within one half of an hour to one hour's time if the snow fighting equipment was ready and preloaded with salt. He opined that defendant had actual and constructive notice of the ensuing storm at least two days before its arrival.
Defendant provided the affidavit of Ronald Kudla in support of its cross motion. Mr. Kudla is a licensed New York State Professional Engineer employed by the New York State Department of Transportation as a Regional Structure Engineer. In October 2011, Mr. Kudla's job title was Region 10 Bridge Maintenance Engineer. Part of Mr. Kudla's job responsibilities included planning for and removing snow and ice from specific areas in Region 10 of the New York State Department of Transportation. Region 10 includes the area where the subject accident occurred. Mr. Kudla recounted the preparations and decision making process undertaken by the New York State Department of Transportation in anticipation of the October 29, 2011 storm. Specifically, he stated that the October 28, 2011 weather forecasts predicted snow totals ranging up to 10 inches of snow for the Hudson Valley while little to no snow accumulation was expected in the Long Island area. As a result the New York State Department of Transportation deployed resources to the Hudson Valley area. A decision was also made that New York State Department of Transportation would respond to INFORM calls for the Long Island area. He explained that the goal is to provide highways that are passable and reasonably safe for vehicular traffic as much of the time as possible within the limitations imposed by weather conditions and the availability of equipment, materials and personnel.
Mr. Kudla stated that on October 30, 2011, defendant received no complaints about the specific location where the claimants' accident occurred until 5:25 a.m. when defendant received a complaint of icing in the vicinity of Route 27 east and west bound from its intersection with Route 109 to its intersection with Route 231. He explained that this area includes the area of the subject accident.
The facts establish that the precipitation from the storm ended on the morning of October 30, 2011 around 3:00 a.m. and the subject accident occurred at approximately 6:30 a.m. Although claimants argue that defendant had notice of the upcoming storm at least 2 days prior to the storm it is well established that such general awareness does not constitute notice of a specific dangerous condition on the roadway in question (Solazzo v New York City Tr. Auth., 6 NY3d 734 [2005]; Atkins v State of New York, 123 AD3d 644 [2d Dept 2014]). In order for a municipality to be held liable for an injury caused by the presence of snow or ice on a roadway a claimant must establish that the condition constitutes an unusual or dangerous condition and that either the municipality caused the condition or a sufficient time had elapsed to afford a presumption of the existence of the condition and an opportunity to effect its removal (Mazzella v City of New York, 72 AD3d 755 [2d Dept 2010][citations and quotations omitted]).
The evidence established that less than an inch of snow accumulated on the roadway prior to claimants' accident. The temperature remained above freezing from the time the precipitation ceased at around 3:00 a.m. until the time of claimants' accident at around 6:30 a.m. Defendant was notified of icy conditions on Route 27 at approximately 5:30 a.m. Given the established facts in this matter the Court finds that as a matter of law, an insufficient period of time had elapsed after the end of the storm to hold defendant liable for the failure to clear the roadway of ice (Solazzo v New York City Tr. Auth., 6 NY3d 734 [2005]; Valentine v City of New York, 86 AD2d 381 [1st Dept 1982], affd. 57 NY2d 932 [1982]).
Therefore, for the foregoing reasons, claimants' motion is denied, defendant's cross motion is granted and the claim is hereby dismissed.
March 6, 2015
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims