Opinion
No. 120057.
12-16-2015
Amina ANNAN, Claimant, v. The NEW YORK STATE OFFICE OF MENTAL HEALTH, Defendant.
Ameduri, Galante & Friscia, LLP By: Anthony Ameduri, Esq., for Claimant. Eric T. Schneiderman, Attorney General By: Suzette Corinne Rivera, AAG, for Defendant.
Ameduri, Galante & Friscia, LLP By: Anthony Ameduri, Esq., for Claimant.
Eric T. Schneiderman, Attorney General By: Suzette Corinne Rivera, AAG, for Defendant.
ALAN C. MARIN, J.
Claimant Amina Annan was the passenger in a Hyundai Elantra and Eric Perez, a State employee, was the driver of a Chevy van that came into contact with one another on Narrows Road South in Staten Island on September 27, 2010. This is the decision following the trial on liability.
At trial, Mrs. Annan and Mr. Perez took the stand. The deposition of claimant's daughter, Zainab Annan, who was the driver of the Hyundai and did not testify at trial, was admitted into evidence (cl exh 2).
It was mid-morning, and Ms. Zainab Annan had picked up her parents at their home on Victory Boulevard in Staten Island. They were going to visit another daughter who was having surgery at Staten Island University Hospital. Claimant was in the front passenger seat and her husband was sitting in the back.
Eric Perez was a mental health therapist with the State's Office of Mental Health, who along with a co-worker, was going to “a doctor's appointment for one of our adolescents.”
As the name indicates, Narrows Road South is one way; it leads to the Verrazano Narrows Bridge and was described as the service road for the Staten Island Expressway. It had rained and the road was wet. At the accident site, the road is three lanes. Just past the site, the right lane branches: the left side continues as the right-most lane of Narrows Road South, and the right branch veers off to intersect with Richmond Road, which goes to the Staten Island University Hospital.
Claimant, Mrs. Annan, testified that “We were driving, and all of a sudden, a van came from the middle lane into our lane, hit the driver's side of our car, and then cut into the front of our car.” But, when asked on cross-examination to confirm that when Perez's van cut in front of the Annan car, their car struck the back of the van, claimant conceded that:
“I don't know ... When the thing happened, I became frightened. I was—I was in a different world. I don't know.”
This statement together with the fact that claimant was a passenger and not the driver, and that much of what she testified about took place to the driver's side, leads to the conclusion that Amina Annan did not speak from firsthand knowledge. Thus, the Court will limit itself to the trial testimony of Mr. Perez and the deposition testimony of claimant's daughter.
The Testimony of Zainab Annan
The deposition of the driver of the Hyundai, Zainab Annan, was taken on February 7, 2014. After leaving her parents' home, Ms. Annan drove towards Clove Road, and made a left from Clove Road onto Narrows Road South:
“I made the turn into the far right lane, so I was already in the right lane ...” (cl exh 2, pp 22–23).
At her deposition, the witness recalled that she had first seen Perez's van in the leftmost lane of Narrows Road South and “he was a little bit ahead of me.” Ms. Annan saw him “cut off another van to get into the middle lane, because he was in the last lane.” (Id., p. 35).
Zainab Annan testified that once the Perez vehicle was in the middle lane, it was still “a little bit in front of me” (id. )—less than a car length ahead—because her lane was moving more slowly. Annan recalled that the vehicles ahead of her did not have their brake lights on, although traffic was slower than it would have been because of the rain.
Annan said that Perez had initially tried to move or swerve into the right lane, but could not make it and remained in the middle lane. When Mr. Perez tried to move a second time, “There wasn't enough room for him to get in to begin with, so the contact was pretty much immediate ...” (id., p. 45). Ms. Annan indicated that the accident happened a few seconds after she had turned onto Narrows Road South.
Ms. Annan explained that the contact was between the van's back rear bumper and her front driver's side and that “the front driver's side ... was completely pushed in” (id., p. 58); she said that the Hyundai was “totaled” (id., p. 61).
The Testimony of Eric Perez
Eric Perez described the accident quite differently:
“We made a left turn onto Narrows Road. I was in the center lane. I tried to come over to the right lane before we got to the intersection, and someone struck me from behind.”
Perez testified that he pulled over to the intersection, which had a small median-type area, and asked the Annans if they were okay and needed any assistance. Ms. Annan agreed that it was Mr. Perez who called 911.
The police report summarizes the different views of the two drivers and contains no independent information from any eyewitness or analysis of the position of the vehicles, skid marks or damage (cl exh 1).
Mr. Perez said the damage to the State's Chevy van was that “Right below the taillight, right above the bumper was a cracked molding. That was it.” As for the Annans' Hyundai Elantra, “All I noticed was the—a couple of scrapes on their [front] bumper and their light was broken.”
* * *
As a general proposition, in this kind of case, the applicable concepts include:
* “A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.” (Section 1128[a] of the Vehicle and Traffic Law, which covers roads with two or more lanes).
* When one vehicle is hit from behind by another, the driver of the second vehicle is negligent unless that driver can provide an adequate explanation that does not involve any negligence on his or her part (PJI 2:82 ).
* Given the speed of vehicles, traffic and condition of the road, a driver shall follow the vehicle ahead at a safe enough distance to be able to safely stop when the first vehicle stops (Vehicle and Traffic Law § 1129[a] ; PJI 2:82A ).
* A driver is under a general duty to: operate his or her vehicle with reasonable care taking into account the weather, traffic and road conditions; maintain a safe rate of speed; be aware of what can be seen; and use reasonable care to avoid an accident (PJI 2:77 ).
The Court does not see a balancing here: for example, where one vehicle tries to change lanes with not quite enough space, and the other fails to react appropriately to let the car in—with both vehicles bearing some responsibility should they make contact. To this trier of fact, the credibility of the two drivers differs markedly.
Eric Perez's testimony was straightforward, matter of fact and highly credible. He was comfortable with his narrative and cross-examination did not affect his credibility.
Perez was deposed on August 21, 2013 (cl exh 3).
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For her part, the testimony of Zainab Annan was materially less credible. Ms. Annan testified that she had just turned onto the far right lane of Narrows Road South and noticed from two lanes away that Perez failed to signal when he moved from the left to the center lane. Adding to the unlikelihood of this was that Ms. Annan would have been expected to have her attention in the other direction because she was about to turn right onto Richmond Avenue.
Similarly, it was hard to credit Ms. Annan's testimony that Mr. Perez cut off another van as he drove into the center lane; Perez had testified that when he turned into Narrows Road South, he went directly into the center lane.
Ms. Annan said that her Hyundai was totaled, but no photographs or garage repair receipts were presented, and as noted, Perez's testimony gave a much different view of the damage to the vehicles. In addition, that no other cars were involved tends to support Perez's version of events. Finally, expert testimony might be in order on this point: if the Hyundai was hit from the driver's side, consider Zainab Annan's testimony that on contact, “I jerked forward and back” (id., p. 52).
The accident was unquestionably a frightening experience for the Annan family, heightened by the sad circumstance that they were on their way to see their daughter (and sister) in the hospital. With that said, the State of New York is not an insurer of an accident simply because it involves one of its vehicles. Rather, the issue is whether Mr. Perez violated the standard of care and if so, was it a substantial factor in causing the accident of September 27, 2010. Moreover, the burden of proof rests upon the claimant to establish that the credible evidence supporting Amina Annan's claim outweighs the credible evidence opposed to it. This, claimant has failed to do.
In view of the foregoing, the Clerk of the Court is directed to dismiss claim No. 120057.
Let judgment be entered accordingly.