Opinion
Claim No. 130922
04-21-2022
Lorenc VAHIDI, Claimant, v. The STATE of New York, Defendant.
For Claimant: LEAV & STEINBERG, LLP (By: Ricardo J. Martinez, Esq.) For Defendant: LETITIA JAMES, Attorney General of the State of New York (By: Heather R. Rubinstein, Assistant Attorney General)
For Claimant: LEAV & STEINBERG, LLP (By: Ricardo J. Martinez, Esq.)
For Defendant: LETITIA JAMES, Attorney General of the State of New York (By: Heather R. Rubinstein, Assistant Attorney General)
Walter Rivera, J.
Decision
The trial of this claim on liability only was heard via videoconferencing technology on September 14, September 15 and October 4, 2021. The claim alleges negligence and reckless disregard against the State of New York for physical injury and property damage arising from a collision between claimant's automobile and a snowplow truck backing up on the Noxon Road exit ramp off of the Taconic State Parkway in the Town of LaGrange, Dutchess County. Claimant testified on his own behalf. Donna Cahill and Michael Anthony Viserto testified for defendant. Claimant's Exhibits 1-4 and defendant's Exhibits A and D-G were admitted on stipulation. Defendant's Exhibits B, C and I were admitted at trial. The virtual trial stipulation was admitted as Court Exhibit 1.
Due to the retirement of Judge Stephen J. Mignano, the claim was transferred to Judge Walter Rivera by Order dated June 3, 2021.
Hereinafter referred to as a "plow truck."
Before the first witness began to testify, claimant made an oral application for the Court to find that defendant waived application of the reckless disregard standard codified in Vehicle and Traffic Law (VTL) § 1104 (T: 7), based on defendant's failure to plead it as an affirmative defense. Defendant opposed the application. The Court reserved decision on the application until the parties’ submission of written arguments on the issue. For the reasons explained below, the Court now denies claimant's application.
References to pages of the trial transcript are preceded by the letter "T."
Claimant's Case
Claimant Lorenc Vahidi testified to the following facts.
On February 12, 2017, claimant was driving his car North on the Taconic State Parkway (Taconic) with his ex-wife Rezarta as a passenger. Claimant turned off of the Taconic at the Noxon Road exit (T: 11-13). "As soon as" he entered the exit he stopped "because there was a big snow truck" (T: 14) with plows and flashing lights. The exit has one lane. Claimant believed it was raining (T: 12-15). Claimant was about three to four meters into the exit and the plow truck was about eleven meters in front of him in the middle of the exit road. The white line separating the exit from the Taconic was to his left. No part of his vehicle was in the white line. The plow truck was moving back and forth putting snow on the side. A white jeep stopped about three meters behind claimant. After claimant had been waiting for about five minutes, the plow truck started to move "in reverse" and claimant sounded his car horn. The plow truck kept moving and hit the front driver's side of claimant's car, then pushed it to the right and down the shoulder (T: 16-23). Claimant got out of his car and walked to the plow truck. He noticed that the driver sitting inside was wearing earplugs in his ears. He asked the driver, who was a young man, what he was doing. After the driver lowered the music, he said he was going to call the manager or the "superintendent" (T: 24).
Claimant or his ex-wife called 911 and the police arrived at the scene in about five minutes. They told the police what happened. The plow truck driver's supervisor also came to the scene. Claimant left after his car was picked up (T: 26-27). On cross-examination, after defense counsel asked if claimant recalled testifying at his deposition that he did not remember whether he put his car in park as he waited for the plow truck, claimant reiterated his belief that he had kept his foot on the brake (T: 31). Claimant also testified that his car was stopped when the plow truck collided with it (T: 37).
Claimant's Exhibits 1-4 are comprised of official reports regarding the accident. The accident description in the police report is as follows: "V1 was cleaning snow off of the ramp when operator V1 backed into V2 who was exiting the Taconic State Parkway." "V1" is identified as the plow truck and "V2" is identified as claimant's car. Claimant's passenger is identified as Rezarta Tabaku. The accident location is specified as the Noxon Road ramp off the Taconic in the Town of LaGrange, Dutchess County, and 1:50 p.m. is noted as the time of the accident. The plow truck driver's statement in the accident report for the New York State Department of Transportation (NYSDOT) (Ex. 2) states: "I was clearing snow from the bull nose of the Noxon rd ramp and when I went to make my way down the ramp the vehicle was struck." This report is signed by the plow truck operator Michael Viserto. The same statement is contained in the Report of Motor Vehicle Accident (MV-104) for the New York State Department of Motor Vehicles (Ex. 3) signed by Viserto.
Viserto's supervisor, Donna Cahill, prepared a NYSDOT Supervisor's Incident Analysis Report (Ex. 4). Cahill states in the report, "Trooper said woman was borderline rude," and "Operator can't be held responsible for the action of others. Yes, he was backing up. However, we need to do our job and the traveling public shows the operators no respect." Cahill, who was not an eyewitness to the incident, also gave a description of the accident that contained facts not related by Viserto in the other reports:
"Employee was clearing snow from the bull nose on the off ramp. Employee was backing up in the safe zone when a private vehicle came off the ramp right up behind the truck. Operator never saw the car but felt a bump and heard a thud. Operator stopped, put the truck in park and went to check what was behind him."
Claimant rested his case. Defendant made an oral motion for a missing witness charge, arguing that claimant's ex-wife [Rezarta Tabaku] was a witness to the collision and claimant had testified that he knows her whereabouts. Claimant opposed the motion, arguing that defendant did not establish claimant has any control over the witness, and the witness’ testimony would be cumulative. The Court reserved decision on the motion (T: 37-38). For the reasons set forth below, the Court now denies defendant's request for a missing witness charge.
Defendant also moved to dismiss the claim for failure to prove a prima facie case of reckless disregard by the State. Claimant opposed the motion, arguing that under the emergency use doctrine, it is defendant's burden to show that the driver was operating an emergency vehicle. The Court reserved decision on the motion (T: 38-39).
Defendant's Case
Donna Cahill testified to the following facts.
Donna Cahill testified during a break in the testimony of Michael Anthony Viserto, whose direct testimony was interrupted when the witness became ill. His testimony resumed on October 4, 2021, after he recovered from his illness.
Prior to her retirement in 2019, Cahill had been working for NYSDOT as a Highway Maintenance Supervisor 2 since 2006. She remembered being called on February 12, 2017, to report to the Noxon Road exit regarding an accident involving a plow truck driven by Michael Viserto. The roads were covered with snow. By the time Cahill arrived, claimant's car had been removed, the police officer was there, and the accident report was already filled out. She recognized her signature on the supervisor's investigation report (Exs. 4 and E), which is a document that is filled out based on what the driver has reported. Cahill had no concerns with how Viserto was clearing snow from the ramp. The ramp is narrow and the plow truck is big. Drivers are told to remain in the vehicle if the roads are bad and it is snowing (T: 67-69, 78-81).
On cross-examination, Cahill testified that drivers are "supposed to be able to hear and be aware of their surroundings" (T: 84). She denied that drivers wear earplugs to block out noise (id. ).
Michael Anthony Viserto testified to the following facts.
Viserto has worked for NYSDOT as a Highway Supervisor I for about nineteen months. He started working for NYSDOT as a Highway Maintenance Worker I on September 28, 2015. Plowing was one of his responsibilities. He received training for driving large vehicles (T: 42-46, 48). As of February 12, 2017, he had his "large dump" and "One Person Plowing" certifications through NYSDOT (T: 47). For plowing, he drove a large dump truck with a front plow and two side plows. Prior to February 12, 2017, he did not receive specific instructions as to how to clear snow off of the Noxon Road exit (T: 51-52). "When it was possible, [he] would make one full push forward with [his] front plow and [his] right wing down, and after making sure there was nobody behind [him], [he] would back up" (T: 53). It is impossible to clear all the snow without backing up (T: 55).
Viserto identified a satellite image (see defendant's Ex. A) as depicting the Noxon Road exit. He described the "bullnose" as a "solid concrete island" "at the very northern part of" the "safe zone in between the travel lanes on the Taconic Parkway and the [Noxon] exit ramp" (T: 55-56). The Court admitted a copy of this satellite image of the Noxon Road exit, marked by Viserto to identify locations referred to in his testimony, as defendant's Exhibit I (T: 88-89). Viserto testified that he used an "A" on Exhibit I to show the location of the bullnose, a "C" to show the location where the collision occurred, and a "B" to show where he would push the snow down the ramp. He described the collision as taking place in the "safe zone," represented by hash marks on Exhibit I, where his forty foot plow truck was located (T: 94-96). He explained that the plow truck's maximum speed in reverse is "walking speed, about 3 miles per hour" (T: 96). NYSDOT's policy for putting a plow truck in reverse is that drivers are first supposed to exit the vehicle and check the rear to see if it is safe, unless there is an ice or snow event, during which drivers are supposed to stay in the plow truck. On the day of the collision with claimant's car, it had been snowing moderately and the lines in the road were obscured (T: 98-99).
Viserto recognized Exhibit B as a daily work report for February 12, 2017. He testified that the report showed that he and his coworkers were out plowing snow and spreading that day (T: 100-102). When he was getting ready "to reverse the truck for the final time to go down the ramp" (T: 106), another vehicle struck the back of his plow truck. He had put the plow truck in reverse but was not moving. He was not wearing anything in his ears (T: 107). Just before the collision, he "was looking at [his] right-hand mirror to make sure the cars that were stopped at the ramp when [he] began this process were still stopped there" (T: 109). After the collision, Viserto "got out to make sure everybody was okay" (T: 109). Both vehicles were in the "hash marks," and other cars could "go around us and go down the ramp" (T: 111).
Viserto acknowledged writing the accident summary and drawing the diagram of the accident in the Report of Motor Vehicle Accident (Ex. G). Viserto claimed the diagram he drew is not accurate, that he did not draw the accident the way it had occurred. The diagram places the two vehicles on the ramp, instead of in the safe zone area depicted by the hash marks. He claimed that he did not draw the diagram where the hash marks are because it would have been confusing and "just look like a mess" (T: 112-113). Viserto also acknowledged filling out and drawing a similar diagram in the Report of State Vehicle/Equipment Accident (Ex. F). He gave the same explanation for placing the vehicles on the ramp instead of in the safe zone area depicted by the hash marks (T: 114-115).
Ex. G is identical to claimant's Ex. 3.
Ex. F is identical to claimant's Ex. 2.
On cross-examination, Viserto testified that he stopped traffic from moving when he started plowing the ramp. When he first looked in the mirror he saw three stopped cars, and the cars remained stopped up until the collision. He did not see claimant's car among the cars. Before moving, he checked his passenger side mirrors to make sure no cars were coming around the ones that were stopped. Viserto's plow truck was in reverse for five seconds, but not moving, when it was hit in the rear center (T: 121-123, 126). He did not recall telling Donna Cahill that he was moving in reverse when the plow truck was hit, which he claimed is incorrect. Viserto denied seeing the police report and testified that he would be surprised if he told the police officer at the scene that he had been moving in reverse when the accident occurred (T: 123-125). In response to a question from the Court, Viserto clarified that the cars he saw stopped while he was plowing were located to the right of the southern tip of the area depicted by hash marks on Exhibit I (T: 125-126).
Defendant rested its case. Defendant moved to dismiss the claim for failure to prove a prima facie case of reckless disregard. Claimant opposed the motion. The Court reserved decision on the motion. The parties submitted post-trial written memoranda, which the Court has reviewed.
Analysis
Parties’ Applications During Trial
Claimant argues in his post-trial memorandum that VTL § 1103 is an affirmative defense that must be pled or it is waived. Claimant does not mention VTL § 1104, the statutory section he referred to at trial. Both statutory provisions create exemptions for certain State and local vehicles from other VTL provisions, and they create a reckless disregard standard of care for operators of the statutorily exempted vehicles, in lieu of negligence. The reckless disregard standard of VTL § 1104 (e), applicable to authorized emergency vehicles involved in an emergency operation, is the same standard as set forth in VTL § 1103 (b), applicable to operators of State and local vehicles and other equipment while actually engaged in work on a highway. Under that standard, operators of statutorily exempted vehicles may be held liable only for damages caused by an act done "in reckless disregard for the safety of others" (id. ), that is, "in conscious disregard of ‘a known or obvious risk that was so great as to make it highly probable that harm would follow’ " ( Rockland Coaches, Inc. v Town of Clarkstown , 49 AD3d 705, 706 [2d Dept 2008], quoting Bliss v State of New York , 95 NY2d 911, 913 [2000] [internal citation omitted]). VTL § 1103 (b) applies to snow-plows (see Wilson v State of New York , 269 AD2d 854, 854 [4th Dept 2000], affd sub nom. Riley v County of Broome , 95 NY2d 455 [2000] ).
The Fourth Department held in Wilson that: "the court [Court of Claims] properly concluded that Vehicle and Traffic Law § 1103 need not be pleaded as [an] affirmative defense" (id. ); and the record supported the lower court's determination that the snowplow operator in that action did not act in "reckless disregard for the safety of others" (id. ). Claimant argues that the Court should not follow the Wilson decision because it relies on the holding in McDonald v State of New York (176 Misc 2d 130 [Ct Cl 1998] ), which was rejected in another Court of Claims decision, Culhane v State of New York (180 Misc 2d 61 [Ct Cl 1999] ). A Court decision of equal or inferior jurisdiction is not controlling. Moreover, "a lower court is bound by an apposite decision of an Appellate Division not within its judicial department when there is no decision on point from the Court of Appeals or the Appellate Division within its judicial department" ( Matter of Nonhuman Rights Project, Inc. v Stanley , 49 Misc 3d 746, 771 [Sup Ct, NY County, 2015] ; see People v Hobson , 39 NY2d 479, 490 [1976] ). Claimant has not cited and the Court is not aware of a decision by the Court of Appeals or the Second Department that is contrary to the decision of the Fourth Department in Wilson.
The Court of Appeals’ decision in Ferres v City of New Rochelle (68 NY2d 446 [1986] ), although not directly on point, provides some support for defendant's argument that VTL § 1103 (b) is not an affirmative defense. In Ferres , the Court of Appeals was construing General Obligations Law § 9-103, which essentially immunizes landowners where certain recreational users of the land are injured. In agreeing with the lower courts’ determinations that the statute is not an affirmative defense, the Court of Appeals concluded that the statute established the substantive duty of care owed by the defendant under specified circumstances ( id. at 450 ). The Court finds that VTL § 1103 (b) is similar in that the statute establishes the substantive duty of care owed by the defendant under specified circumstances. Based on the above, the Court will apply the standard of "reckless disregard" codified in VTL § 1103 (b).
Turning to defendant's motion for a missing witness charge, an "uncalled witness" or "missing witness" charge instructs a jury that it may draw an adverse inference based on the failure of a party "to call a witness who would normally be expected to support that party's version of events" ( People v Savinon , 100 NY2d 192, 196 [2003] ). "As the proponent of the missing witness charge, [defendant is] required to ‘promptly notify the court that there is an uncalled witness believed to be knowledgeable about a material issue pending in the case, that such witness can be expected to testify favorably to the opposing party and that such party has failed to call him [or her] to testify’ " ( Warner v Kain , 186 AD3d 1844, 1848 [3d Dept 2020], quoting People v Gonzalez , 68 NY2d 424, 427 [1986] ). Once defendant has met its burden, the burden shifts to claimant to demonstrate that although the issue is material or relevant, the testimony would be cumulative to other evidence, that the witness is not "available," or that she is not under claimant's "control" ( People v Gonzalez , 68 NY2d at 428 ).
Claimant testified at trial that he knew his ex-wife's address (T: 37-38), but contrary to defendant's argument, this fact does not establish that she would have been available to testify or that claimant had control over her.
The record is devoid of any evidence that defendant "promptly" notified the Court that claimant's ex-wife Rezarta Tabaku was an uncalled witness with material testimony. Defendant did not seek a missing witness charge until after claimant rested his case. Defendant's attorney does not disclose when she first learned that claimant was not going to call his ex-wife as a trial witness, but the record establishes it was readily apparent well before trial began. The Police Accident Report (Ex. 1) identified Rezarta Tabaku as a passenger in claimant's car at the time of the accident. At the virtual trial preparation conference with the parties’ attorneys held on July 26, 2021, claimant's attorney stated he would be calling claimant and the driver of the plow truck as witnesses at trial. At that point it should have been apparent to defendant's attorney that claimant would not be calling Tabaku as a witness. That claimant would not be calling Tabaku to testify was reaffirmed at the start of the trial, when the Court asked, "how many witnesses on the Claimant's side are there?" (T: 6). Claimant's attorney responded, "[j]ust one, the Claimant himself" (id. ).
Absent special circumstances requiring that a particular matter be placed on the record, Virtual Trial Preparation Conferences are not recorded. The statement by claimant's attorney appears in contemporaneous notes taken by Principal Law Clerk Tracy Young Wells.
The Court finds that defendant's request for a missing witness charge is untimely (see People v Silvestre , 187 AD3d 552, 552 [request for missing witness charge untimely where it was made a month after People's pretrial announcement that they were not going to call witness], lv denied 36 NY3d 976 [2020] ). Accordingly, defendant's request for a missing witness charge is denied.
Liability
Claimant proved, by a preponderance of the evidence, that when Michael Viserto backed up his plow truck on the Noxon Road exit ramp and collided with claimant's car, he acted "in reckless disregard for the safety of others" ( VTL § 1103 [b] ), that is, "in conscious disregard of ‘a known or obvious risk that was so great as to make it highly probable that harm would follow’ " ( Bliss , 95 NY2d at 913 ), quoting Saarinen v Kerr , 84 NY2d 494, 501 [1994] ).
The Court credits claimant's testimony that he waited behind the plow truck on the exit ramp for about five minutes while it cleared snow, that another car was waiting behind him, and that he sounded his car horn when the plow truck started moving in reverse but the plow truck kept reversing and collided with him. That the plow truck was reversing on the exit ramp, not standing still in the "safe zone" area as Viserto testified, is corroborated by the Police Accident Report (Ex. 1), and by Viserto's own diagrams in the Report of Motor Vehicle Accident (MV-104, Ex. 3) and the report submitted to NYSDOT (Ex. 2).
Viserto's testimony that the accident took place in the "safe zone" depicted by hash marks in his diagrams is not believable. Other than Viserto's trial testimony, the only reference to either of the vehicles being in the "safe zone" is in the Supervisor's Incident Analysis Report (Ex. 4) prepared by Viserto's supervisor, Donna Cahill, the day after the accident (id. ). Cahill did not witness the accident, she arrived at the scene after the police left, and her description of the accident differs from the descriptions and the diagrams in the other reports, even though she testified it was based on what Viserto had reported (T: 79).
Claimant's testimony that the plow truck was backing up when it hit his car is consistent with the Police Accident Report (Ex. 1), and it is corroborated by Cahill in her report (Ex. 4). Viserto's contrary testimony, that the plow truck was sitting still when claimant's car somehow exited the Taconic and rear-ended the plow truck is both illogical and not credible.
Defendant established that it was snowing and not raining as claimant testified he believed was the weather at the time of the accident. Claimant's lapse in memory on this point does not render his testimony on other material facts unworthy of belief.
The Court also credits claimant's testimony that the plow truck kept backing up even though he sounded his car horn, and that Viserto was wearing what claimant referred to as "earplugs" (T: 24). That Viserto was wearing earplugs would explain why he kept backing up despite the honking by claimant. The fact that he would have been violating NYSDOT policy in wearing them, which Cahill and Viserto stated at trial, does not affect claimant's credibility. Instead, it lends support to the conclusion that Viserto acted in reckless disregard of the safety of others in backing up on the exit ramp, along with evidence that cars were stopped behind the plow truck on the single lane ramp, visibility was not good because it was snowing (T: 122), and Viserto was wearing earplugs reducing his hearing. Viserto's actions constitute "more than a momentary lapse in judgment" ( Rockland Coaches , 49 AD3d at 707 ). Viserto acted "in reckless disregard for the safety of others" ( VTL § 1103 [b] ), and his reckless disregard was the proximate cause of the accident resulting in claimant's alleged damages.
Upon consideration of all the evidence presented at trial, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant established by a preponderance of the credible evidence that the State acted with reckless disregard.
Accordingly, the Court finds defendant 100% liable. Defendant's motion to dismiss made at the close of claimant's case is DENIED. Defendant's motion to dismiss, made at the conclusion of the trial, is DENIED. All other motions and objections not ruled upon are DENIED. A trial on damages will be scheduled as soon as practicable.
Consistent with the new policy of the Unified Court System, the parties are encouraged to consider alternative dispute resolution for the ascertainment of damages.
LET INTERLOCUTORY JUDGMENT BE ENTERED.