Opinion
# 2014-039-431 Claim No. 119312
10-06-2014
MAURICIO CRUZ v. STATE OF NEW YORK
Alex Yadgarov & Associates, P.C. By: Dinkes & Schwitzer, PC By: George Pfluger, Esq. Hon. Eric T. Schneiderman Attorney General of the State of New York By: Daniel Hallak Assistant Attorney General
Synopsis
Following a trial on liability, the Court finds that claimant has proven his negligence claim against defendant. The evidence before the Court establishes that defendant's employee was negligent in failing to adequately look to his left before making a right-hand turn onto a highway, causing his vehicle to strike the bicycle claimant was riding. However, claimant was also negligent in failing to use reasonable care for his safety and to keep a reasonably vigilant lookout for vehicles. The Court apportions liability 60% against the defendant and 40% against the claimant.
Case information
| UID: | 2014-039-431 |
| Claimant(s): | MAURICIO CRUZ |
| Claimant short name: | CRUZ |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 119312 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | James H. Ferreira |
| Claimant's attorney: | Alex Yadgarov & Associates, P.C. By: Dinkes & Schwitzer, PC By: George Pfluger, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman Attorney General of the State of New York By: Daniel Hallak Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 6, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant Mauricio Cruz filed the instant claim with the Clerk of the Court of Claims on December 28, 2010. Issue was joined and discovery ensued. A trial on the issue of liability was held on May 20 and May 21, 2014 at the Court of Claims in Hauppauge, New York. The claim arises following a collision on November 11, 2010 between a bicycle ridden by claimant and a motor vehicle driven by a parole officer employed by the New York State Division of Parole (hereinafter "DOP"). The accident occurred at approximately 10:30 p.m. at the intersection of Nassau Road and the top of the Southern State Parkway (hereinafter "the Parkway") Exit 21 ramp in the Town of Hempstead, Nassau County. Claimant alleges that the DOP employee driving the motor vehicle at the time of the accident was negligent. At the liability trial, claimant testified on his own behalf, called Fabian Kelsick, the driver of the motor vehicle, as a witness, and proffered various photographs and documents in support of his claim. Defendant also called Mr. Kelsick as a direct witness. In addition, the parties submitted post-trial memoranda.
Effective April 2011, DOP and the Department of Correctional Services were merged to form the Department of Corrections and Community Supervision. As the events in this claim took place prior to the merge, this decision will refer to the agency by its former name.
FACTS
At trial, claimant testified with the assistance of a Spanish interpreter (Tr. 9-11). Claimant stated that he came to the United States in 2008 from El Salvador, where he was born (Tr. 13). He testified that he has a fifth grade education and does not speak or read English but can read and write Spanish "a little bit" (Tr. 14; see also Tr. 113, 118). On November 11, 2010, he was employed by Amore Mio, a pizza restaurant in Bellmore, New York where he had worked for the previous two years (Tr. 14-15). His hours were generally "from ten to ten" and he worked that shift the day of the accident (Tr. 15). Claimant would ride his bike to and from work and the ride each way would usually take 45 minutes. No photographs of the bicycle were presented, but claimant described it as small, white and with reflectors (Tr. 16; see also Tr. 75, 77).
References delineated herein as (Tr. ___) refer to the May 20, 2014 and May 21, 2014 consecutively paginated trial transcript for this claim.
Claimant stated that the accident occurred on his way home from work at the point where Nassau Road meets the exit ramp from the Parkway (Tr. 33). Photographs received into evidence depict a Parkway exit ramp that is three lanes wide and empties into Nassau Road (see claimant's exhibits 3, 6 and 7). A traffic light located at the intersection controls traffic leaving the Parkway and traffic proceeding on Nassau Road. The traffic light allows for vehicles in the far left lane of the Parkway exit ramp to make left-hand turns from the Parkway onto Nassau Road. It also directs vehicles stopped in the middle lane of the Parkway exit to either make a left-hand turn onto Nassau Road or to proceed straight across Nassau Road to Pine Street. For vehicles proceeding in the far right lane, the traffic light only permits right-hand turns onto Nassau Road (see id.).
Pine Street is located directly across from the Parkway exit ramp; cars proceeding straight would cross Nassau Road and then proceed onto Pine Street (see claimant's exhibit 5).
Claimant identified a crosswalk, which he called "a sidewalk" at trial, located at the top of the exit ramp, which connects a sidewalk running along Nassau Road (Tr. 21; claimant's exhibits 4, 6 and 7). Claimant testified that he had ridden past that Parkway exit ramp "about a hundred times" before the accident (Tr. 22). Moments before the accident, claimant was riding his bicycle on the sidewalk running alongside Nassau Road. He testified that he was approaching the area where the Parkway exit ramp meets Nassau Road (Tr. 23). He recalled that the streetlights were lit that evening and that there were vehicles traveling in both directions on Nassau Road as he approached and crossed the Parkway exit ramp (Tr. 34, 41). Claimant testified that the traffic light at the Parkway exit ramp depicted in claimant's exhibit 8 was green as he approached it and that two cars were stopped at the top of the Parkway exit ramp (Tr. 38). Both cars had their headlights on (Tr. 40). He stated that the weather was dry and that he was able to see everything in front of him (see id.). Claimant marked an exhibit to show the sidewalk he was riding on and the direction he was heading when the accident occurred (Tr. 41-44; claimant's exhibit 8-B). He also marked an exhibit with two "X's" to show where the two cars coming off the ramp had stopped as he rode his bike across the crosswalk (Tr. 45; claimant's exhibit 3-A).
Claimant stated that he was looking straight ahead, in the direction he was riding, as his bicycle entered the crosswalk (Tr. 47). He stated that "[b]ecause the light was green . . . [he] didn't stop" as he rode across the top of the exit ramp (Tr. 45). As he crossed the third (right turn only) lane, his bicycle was struck on the right side of the back wheel by a vehicle (Tr. 48-50). Claimant marked the location in the third (right turn only) lane where his bicycle was hit (see exhibit 3-A) and where his body landed (see claimant's exhibit 5-B). He described a "[h]eavy" impact to the right side of his body (Tr. 55) and stated that his bike was "all broken" (Tr. 56). He stated that an individual who had parked near the accident scene (see claimant's exhibit 5-C) walked over to him after the accident, checked on him and notified the police (Tr. 60-61). Claimant could not recall what happened to the bicycle after the accident (Tr. 65; see also Tr. 78).
During cross-examination, claimant repeated that he was working at Amore Mio Pizzeria "from ten to ten" on November 11, 2010, but his shift ended early and he left the restaurant at 8:30 p.m. (Tr. 74). He stated that on the way home from the restaurant that evening, he stopped at his sister's home and visited with her, and that he ate some food and drank water (Tr. 84-85). Claimant could not remember what clothing he was wearing and could not recall if the motorist who struck him stopped the car after the accident (Tr. 86). Claimant repeated that, as he rode his bicycle across the exit ramp, he was looking out to see what was in front of him, and that he had the green light (Tr. 94-96, 100). Claimant also stated that the traffic light was red for the traffic stopped at the top of the Parkway exit ramp (Tr. 104, 105). Claimant also testified that the traffic light for him turned yellow, but his testimony is unclear as to when exactly that occurred (Tr. 100-101). Claimant did, however, testify that, as he was riding on Nassau Road, the cars were moving along Nassau Road and were not stopped at the traffic light at the Parkway exit ramp (Tr. 101, 108). He repeated that, when he got to the traffic light/Parkway exit intersection, he did not stop and proceeded straight across (Tr. 107).
Claimant called Fabian Kelsick, now a DOP retiree, who testified that in November 2010, he was a parole officer assigned to the DOP's Absconder Search Unit (Tr. 121, 185). At the time of the accident, which he estimated occurred between 10:45 p.m. and 11:00 p.m. on November 11, 2010, he was driving a State-issued 2010 Jeep Grand Cherokee, and was on his way home but still on duty (Tr. 121-123, 125). Prior to the accident, he had departed from DOP's Bureau of Special Operations Building located near Exit 24 of the Southern State Parkway, and had exited the Parkway at the Nassau Road/Exit 21 interchange (Tr. 123). Kelsick agreed that he had been on Nassau Road "frequently" before the accident (Tr. 124).
Kelsick testified that "[t]he light was green at the intersection. I had the light. . . . On Nassau Road the light was red" (Tr. 149-150). He stated that other vehicles were exiting the Parkway to Nassau Road while he was on the exit ramp (Tr. 125). He stopped at the top of the right-turn lane "[b]ecause I'm familiar with the exit. I know that many accidents have happened there with pedestrians and cyclists, so I took the time to stop and take a look. . . . I wanted to make sure that nothing was coming across" (Tr. 127-128; see also Tr. 131). He stated that there was one vehicle behind him in the right lane as he stopped at the Parkway exit and that he looked to his left (Tr. 128-129). The area was lit by streetlights (Tr. 132). He stated that he stopped "approximately, two, three seconds" before he began making a right turn onto Nassau Road (Tr. 133; see also Tr. 142, 146, 242). He stated that he looked to the left and that his view was not blocked (Tr. 134). He stated that he also looked to his right before turning onto Nassau Road (Tr. 144). Kelsick repeated that, when he looked left, he saw no one riding a bicycle toward him and stated that cars on his left "were turning going to Nassau Road, so I began to turn right" (Tr. 149).
Kelsick stated that his vehicle was moving when it struck a bicycle and that "[claimant] came out of nowhere" (Tr. 140). He stated that when he looked to his left while stopped, he did not see any person (Tr. 141, 142-143); he only saw a "blur" as the bicyclist "came from the left" while Kelsick "was exiting the ramp" (Tr. 141). He testified that he applied his brakes but "[t]here was no time to beep the horn" (Tr. 153). He stated: "I didn't see him until there was impact with the vehicle. He came into view and the vehicle hit him" (Tr. 154).
Kelsick marked in red, on a photograph of the Parkway exit ramp, the location at the top of the right-hand lane where his vehicle stopped before turning (Tr. 145, 146; claimant's exhibit 3-A). He estimated that, after stopping, his vehicle traveled 10 to 20 feet before making contact with claimant, that his vehicle was "angled to the right" after the impact, and that the vehicle was going "between five to fifteen miles an hour" at the time of impact (Tr. 146, 147; see also Tr. 215). Kelsick stated that, "[a]t the point of impact, I immediately stopped, turned on the flashing - - all the flashing lights on the vehicle, got out of the vehicle, went around the front and saw the bike and the [claimant] in the roadway" (Tr. 152).
Kelsick stated that the front bumper of the Jeep was scratched as a result of the collision and that his DOP supervisor took photographs the following day (Tr. 164, 214). A two-page DOP Unusual Incident Report prepared by Kelsick was received into evidence as claimant's exhibit 12. The Incident Report recounts Kelsick's version of the incident, and notes that he "had been working on a [United States Marshals] Task Force Case" prior to the accident, that after claimant "was knocked off the bicycle and hit the pavement" an "unknown civilian in another vehicle pulled over to assist and called 911", and that a Nassau County police officer then arrived at the scene and spoke to claimant (see claimant's exhibit 12; Tr. 168-169).
At trial, the Court reserved on the admissibility of a Police Accident Report. Upon further review, the Court will not receive this document as evidence.
Defendant did not cross-examine Kelsick during claimant's presentation of his case, but called Kelsick as a direct witness in its defense. Kelsick testified his work duties in November 2010 involved locating and apprehending parole violators, and he drove the State-issued Jeep as part of that job (Tr. 186). On the morning of November 11, 2010, Kelsick was notified by the Task Force that a search would begin in the Bellmore and Baldwin areas for an individual who had escaped Suffolk County Police Department custody (Tr. 188, 201). The search concluded that evening around 10:30 p.m. without the suspect being apprehended (Tr. 201). At the time of the accident, Kelsick stated that he was still working and was en route "to the [DOP] Office at 250 Fulton Avenue, Hempstead prior to going home" (Tr. 204, 217). Kelsick stated that his "tour of duty" that evening ended after he notified his supervisor by phone from his home and "signed off duty" (Tr. 202). Although the Incident Report lists 9:50 p.m. as the time of the accident, Kelsick testified that the accident occurred at "[a]pproximately 10:45 p.m." (Tr. 204; claimant's exhibit 12).
With respect to the accident, Kelsick stated that his vehicle's headlights were on, that the radio was off and that he was not using his cell phone (Tr. 211-212). He repeated that the light was green as he was getting off the Parkway exit and "was still green" as he proceeded through the intersection (Tr. 212, 213, see also Tr. 149). At the top of the exit ramp, he "stopped, . . . glanced left, looked across looking down across the Pine Street, looked right, and then began to turn onto Nassau Road. I wanted to make sure there were no pedestrians or cyclists in the area" (Tr. 212). He stated that he stopped even though the light was green "[j]ust out of habit. Again, I've lived in that area for almost 20 years. I'm familiar with that roadway and things that have happened in the past" (id.). As for the cars to his left when he stopped at the mouth of the exit, Kelsick stated that "[t]he cars to the left were turning onto Nassau Road" and "were in the intersection" (Tr. 215). He then stated "[t]he cars had turned onto Nassau Road. They were in the intersection. They had already begun to turn onto Nassau Road" (id.). He stated that, as he began to turn onto Nassau Road "all of a sudden a blur came from the left, hit the front [left bumper] of the State vehicle. I stopped immediately because I realized I had bumped something" (Tr. 213; see also claimant's exhibit 10 at 32-33 [Kelsick Examination Before Trial]). Kelsick testified that, after the accident, he put on his vehicle's flashers, got out of his car, and "went around to see [claimant]. I helped him to the curb at the mouth of the exit, and he said his leg was in pain" (Tr. 214). He recalled claimant was wearing dark clothing (id.). He testified that he did not recall the bike having reflectors and that claimant was not wearing a helmet (id.).
During cross-examination, Kelsick stated that at the end of a workday, "I go to the office and I make a computer entry, and I have to do my time sheet" (Tr. 223). Kelsick affirmed that, after he had stopped his vehicle at the top of the Parkway exit ramp and glanced left toward Nassau Road, "[i]t was dark, but [he] could see" (Tr. 259; see also Tr. 261). He marked a photograph with two red dots to identify the spot where his vehicle stopped and the point of impact: the dot on the far left of the photograph shows where he stopped before he turned and the dot just to the right shows the place where his vehicle struck the bicycle (Tr. 272; claimant's exhibit 5-D).
LAW
Initially, the Court rejects defendant's argument that the "reckless disregard for the safety of others" liability standard set forth in Section 1104 (e) of the Vehicle and Traffic Law (hereinafter VTL) applies to the facts of this case. It is well settled that VTL § 1104 "qualifiedly exempts drivers of authorized emergency vehicles from certain traffic laws when they are involved in an emergency operation" (Torres v Saint Vincent's Catholic Med. Ctrs. of N.Y., 117 AD3d 717, 717-718 [2d Dept 2014], quoting Miller v Suffolk County Police Dept., 105 AD3d 918, 918 [2d Dept 2013]; see Starkman v City of Long Beach, 106 AD3d 1076, 1077 [2d Dept 2013]). However, the VTL § 1104 (e) reckless disregard standard of care " 'only applies when a driver of an authorized emergency vehicle involved in an emergency operation engages in the specific conduct exempted from the rules of the road by [VTL] § 1104(b)' " (Benn v New York Presbyt. Hosp., 120 AD3d 453, 455 [2d Dept 2014], quoting Kabir v County of Monroe, 16 NY3d 217, 220 [2011]; accord Dodds v Town of Hamburg, 117 AD3d 1428, 1429 [4th Dept 2014]; Katanov v County of Nassau, 91 AD3d 723, 725 [2d Dept 2012]). Thus, even where an "emergency operation" exists, absent any evidence of the privileged conduct permitted by VTL § 1104 (b) such as "stopping, standing or parking in violation of the rules of the road, proceeding past a red signal or stop sign, speeding, or proceeding in the wrong direction or making an unlawful turn", the reckless disregard standard of care does not govern the driver's conduct (Gonzalez v City of New York, 91 AD3d 582, 582 [1st Dept 2012]).
VTL § 1104 provides, in relevant part:
(a) The driver of an authorized emergency vehicle, when involved in an emergency operation, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
(b) The driver of an authorized emergency vehicle may:
1. Stop, stand or park irrespective of the provisions of this title;
2. Proceed past a steady red signal, a flashing red signal or a stop sign, but only after slowing down as may be necessary for safe operation;
3. Exceed the maximum speed limits so long as he does not endanger life or property;
4. Disregard regulations governing directions of movement or turning in specified directions.
(c) Except for an authorized emergency vehicle operated as a police vehicle or bicycle, the exemptions herein granted to an authorized emergency vehicle shall apply only when audible signals are sounded from any said vehicle while in motion by bell, horn, siren, electronic device or exhaust whistle as may be reasonably necessary, and when the vehicle is equipped with at least one lighted lamp so that from any direction, under normal atmospheric conditions from a distance of five hundred feet from such vehicle, at least one red light will be displayed and visible.
* * *
(e) The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.
In relevant part, VTL § 114-b defines "emergency operation" as "[t]he operation . . . of an authorized emergency vehicle, when such vehicle is engaged in . . . pursuing an actual or suspected violator of the law, or responding to, or working or assisting at the scene of an accident, disaster, police call, alarm of fire, actual or potential release of hazardous materials or other emergency. . . ."
First, contrary to defendant's argument, there is no credible evidence that defendant was engaged in an "emergency operation" at the time of the accident. An "emergency operation" has been found to exist where, at the time of the accident, a police officer driving a patrol vehicle is responding to a 911 dispatch call (see Criscione v City of New York, 97 NY2d 152 [2001]; Williams v Fassinger, 119 AD3d 1368 [4th Dept 2014], lv denied 2014 NY Slip Op 06519 [2014]), to a radio report of a robbery in progress (see Molinari v City of New York, 267 AD2d 436 [2d Dept 1999]), or to an accident (see Culhane v State of New York, 180 Misc 2d 61 [Ct Cl 1999]), or is pursuing a vehicle that is speeding (see Flack v State of New York, 57 AD3d 1199 [3d Dept 2008]; Yerdon v County of Oswego, 43 AD3d 1437 [4th Dept 2007]; Smith v Hastings, 22 Misc 3d 1130[A] [Sup Ct, Ulster County 2009]), or a tractor trailer that improperly passes several vehicles (see Green v State of New York, 71 AD3d 1310 [3d Dept 2010]). Conversely, an "emergency operation" has been found not to exist where, at the time of the accident, the driver of an authorized emergency vehicle was engaged in a non-emergency role such as observing a suspect or investigating a complaint (see Quintero v City of New York, 113 AD3d 414, 415 [1st Dept 2014][no "emergency operation" existed when two police officers observing suspects from a double-parked, unmarked police vehicle were struck from behind by a minivan]; Rusho v State of New York, 76 AD3d 783, 784 [4th Dept 2010] [parole officer driving a State vehicle found to be "engaged in an investigatory" rather than a pursuit role while turning his vehicle around to determine whether a person he observed operating a vehicle in the opposite lane of traffic was a parole absconder]; DeLuca v Blanco, 31 AD3d 600 [2d Dept 2006] [police officer not engaged in "emergency operation" when officer investigating complaint that occupant of a pickup truck tossed debris at another car, drives his patrol car from the shoulder of highway back onto the highway without putting on any of the patrol car's exterior lights, and, as he pulls out, causes another vehicle to swerve to avoid the unlit patrol car and strike complainant]).
Here, despite some contradictions in Kelsick's testimony as to whether he was still looking for the absconder when his vehicle struck claimant's bicycle, the Court finds Kelsick's testimony, as a whole, indicates he was still on the job at that time and was returning to his office to complete paperwork and time sheets (Tr. 122-123, 201-202, 204, 223). In any event, regardless of whether Kelsick was still looking for the absconder or returning to the DOP office, there is simply no proof that an "emergency operation" was underway when the accident occurred. No proof was presented indicating that Kelsick was in pursuit of an actual or suspected law violator, that he was responding to a police or emergency call, that he was en route to an emergency scene, or that the State vehicle's siren or emergency lights were activated at the time of the accident. In fact, there is no evidence that Kelsick was even engaged in an "investigatory role" such as following a vehicle driven by a possible parole absconder (see Rusho v State of New York, 76 AD3d at 784). Kelsick was simply making a right turn in his State vehicle at the top of an exit ramp on the way back to his office when the accident occurred.
Kelsick insisted that the accident occurred at approximately 10:45 p.m. on November 11, 2010 (Tr. 202-203, 204). When asked by defense counsel "[w]hen did you finally stop searching for [the parole absconder]?", Kelsick responded "approximately 10:30 p.m." (Tr. 201). A few questions later, Kelsick stated that he was still looking for the individual until the moment he called his supervisor and signed off duty (Tr. 202).
In any event, as noted above, even where there is evidence that an emergency operation is underway, that alone is not dispositive as to whether the reckless disregard standard applies; the injury causing conduct that occurs in the course of an emergency operation must be the specific conduct listed in VTL § 1104 (b) (see Katanov v County of Nassau, 91 AD3d at 725 [reckless disregard standard not applicable where a police officer responding to a 911 call from an assisted living facility turns the police vehicle into a parking space located in a parking lot at the facility at a speed of approximately two miles per hour and strikes a pedestrian]; Fajardo v City of New York, 95 AD3d 820 [2d Dept 2012] [principles of ordinary negligence applied in case where motorist sustained injuries when her vehicle was struck in the rear by a city fire rescue truck that, while responding to an emergency, was not exempt from the rule prohibiting a driver from following too closely behind another vehicle]; Gonzalez v City of New York, 91 AD3d at 582 [reckless disregard standard not applicable where the driver of a fire truck, while driving to the scene of emergency, stopped to make a right-hand turn onto another street, and while making the turn with the traffic light in his favor, struck a van causing injury to a van passenger]).
In the instant case, even assuming Kelsick was involved in an "emergency operation" as defined under VTL § 114-b, the record contains no evidence that Kelsick was engaged in any of the conduct exempted from liability in § 1104 (b). Kelsick testified that he was merely making a right-hand turn from the Parkway ramp onto Nassau Road and that the green light was in his favor when the accident occurred. Even accepting claimant's argument that the traffic light was red when Kelsick started his right turn and struck claimant, there was no proof that Kelsick had disregarded any rules of the road, such as evidence that a right-on-red turn was prohibited at that intersection. Therefore, absent evidence that an "emergency operation" existed, or even if it did, that the driver of the vehicle was engaged in the specific conduct exempted under § 1104 (b), the reckless disregard standard does not apply to the facts of this case and thus analysis of this claim must be guided by principles of ordinary negligence (see Kabir v County of Monroe,16 NY3d at 220; Benn v New York Presbyt. Hosp., 120 AD3d at 456; Fajardo v City of New York, 95 AD3d at 820; Gonzalez v City of New York, 91 AD3d at 582).
To establish a prima facie case of negligence, " 'a plaintiff must establish the existence of a duty owed by a defendant to the plaintiff, a breach of that duty, and that such breach was a proximate cause of injury to the plaintiff' " (Comack v VBK Realty Assoc., Ltd., 48 AD3d 611, 612 [2d Dept 2008], quoting Nappi v Incorporated Vil. of Lynbrook, 19 AD3d 565, 566 [2d Dept 2005]; see Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]; Mojica v Gannett Co., Inc., 71 AD3d 963, 965 [2d Dept 2010]; PJI 2:10). "A driver is negligent when an accident occurs because he or she failed to see that which through the proper use of his or her senses he or she should have seen" (Benn v New York Presbyt. Hosp., 120 AD3d at 455, quoting Katanov v County of Nassau, 91 AD3d at 725; see Weigand v United Traction Co., 221 NY 39, 42 [1917]; Starkman v City of Long Beach, 106 AD3d at 1078). "A driver also has a duty to exercise reasonable care under the circumstances to avoid an accident" (Shui-Kwan Lui v Serrone, 103 AD3d 620, 620 [2d Dept 2013]). As for the interaction between motorists and bicyclists:
"In general, a motorist is required to keep a reasonably vigilant lookout for bicyclists, to sound the vehicle's horn when a reasonably prudent person would do so in order to warn a bicyclist of danger, and to operate the vehicle with reasonable care to avoid colliding with anyone on the road. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself in a dangerous position. Each is required to obey the statutes governing traffic and is entitled to assume that the other also will do so "
(Palma v Sherman, 55 AD3d 891, 891 [2d Dept 2008] [internal citations omitted]; see Vehicle and Traffic Law § 1146; Brenner v Dixon, 98 AD3d 1246, 1248 [4th Dept 2012]).
Upon application of these principles to the facts presented here, and after weighing the evidence proffered at trial, including the exhibits received into evidence and considering the testimony and demeanor of the witnesses, the Court finds that claimant has established, by a preponderance of the credible evidence, his claim of negligence against defendant. However, upon considering the comparative fault of claimant, the Court finds that claimant is partly responsible for his alleged injuries.
Notwithstanding that claimant's testimony was, at times, vague and contradictory, certain evidence is uncontroverted. Late in the evening on November 11, 2010, Kelsick was driving a State vehicle up the Parkway exit ramp in the far right lane, with the intention of turning right at the traffic light that controlled traffic exiting the ramp and traffic proceeding in both directions on Nassau Road. At the time of the accident, the weather was dry and the area was lit by streetlights and by lights from a nearby strip mall. As Kelsick was making the right-hand turn onto Nassau Road, the vehicle he was driving struck claimant, who was riding a bicycle across the top of the Parkway exit ramp. Kelsick acknowledges at several points during his testimony that his vehicle struck claimant's bicycle that evening. The Court credits claimant's testimony that he was riding his bicycle when the accident occurred, that the traffic light controlling Nassau Road traffic that faced him was green as he crossed the intersection, and that his bicycle was struck by a State vehicle driven by Kelsick as claimant was crossing the right-hand lane of the Parkway exit ramp.
Although claimant gave conflicting testimony toward the end of his cross-examination that he was walking, not riding, his bicycle, and then stated that he could not recall if he was walking or riding his bicycle (see Tr. 96-98, 107), the Court accepts his prior trial testimony on direct examination and earlier in his cross-examination that he was riding his bicycle. Moreover, Kelsick repeatedly testified that claimant was riding a bicycle at the time of the accident, the Unusual Incident Report prepared by Kelsick states that claimant "was knocked off the bicycle (claimant's exhibit 12), the claim states that claimant was riding a bicycle (Claim ¶ 2), and the Verified Bill of Particulars describes a motor vehicle "striking a bicyclist" (claimant's exhibit 2, ¶ 6). Inasmuch as defendant argues that the claim is jurisdictionally defective because claimant testified that he was walking across the intersection but alleged in the claim that he was riding a bicycle, such argument is rejected (Tr. 97-99; see also Respondent's Post-trial Memorandum of Law at 7-9).
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The Court does not credit Kelsick's testimony insofar as his recounting of the events that occurred immediately before the accident. In particular, the Court does not find credible his testimony that he stopped at the traffic light for approximately two to three seconds - even though according to his own testimony the traffic light was purportedly green in his favor - in order to "make sure that nothing was coming across" the intersection because he "kn[ew] that many accidents have happened there with pedestrians and cyclists" (Tr. 127-128; see also 131, 212). The Court also discounts Kelsick's testimony that there were vehicles to his left moving off the Parkway ramp as he was stopped at the mouth of the Parkway exit and as he began to turn right onto Nassau Road. Accepting such testimony would mean that claimant was able to navigate almost three lanes of moving traffic on a bicycle without being struck, and would undercut Kelsick's own testimony that claimant was a "blur" that "came out of nowhere" (Tr. 140-141). It is also difficult to reconcile Kelsick's testimony that, when he stopped at the green light and looked to his left, cars were moving and turning left onto Nassau Road, with his testimony that his view was not blocked or obstructed by anything.
Based on the testimony and exhibits proffered at trial, the Court finds that the most likely scenario is that the traffic light for Kelsick was red and that Kelsick saw no vehicles moving on Nassau Road as he approached the top of the exit ramp. He then either stopped, or slowed his vehicle, and proceeded to make a right on red, but without looking to his left or only glancing to his left, and struck claimant as he was riding his bicycle across the right lane turn at the top of the exit ramp. Whether Kelsick made a complete stop, or whether he slowed his vehicle before making the right-hand turn, the Court finds that the failure to adequately look to his left before making the right turn and see what was there to be seen or should have been seen was negligent (see Lu Yuan Yang v Howsal Cab Corp., 106 AD3d 1055, 1056-1057 [2d Dept 2013]; Shui-Kwan Lui v Serrone, 103 AD3d at 620-621; Kelly v City of New York, 59 AD3d 213 [1st Dept 2009]: Smith v State of New York, UID No. 2013-044-001 [Ct Cl, Schaewe, J., May 9, 2013], affd 2014 NY Slip Op 07229 [3d Dept 2014]).
However, claimant must also bear some responsibility for the accident. "[A] person riding a bicycle on a roadway is entitled to all of the rights and bears all of the responsibilities of a driver of a motor vehicle" (Palma v Sherman, 55 AD3d at 891 [emphasis added]; see VTL § 1231). Comparative negligence principles apply to accidents involving motorists and bicyclists (see e.g. Barchella v Moser, 156 AD2d 324 [2d Dept 1989]). Here, the evidence established that claimant was familiar with the area where the accident occurred. He was riding a bicycle late at night with no lights on it. There was also conflicting testimony as to whether there were even reflectors on the bicycle. In addition, Kelsick's testimony that claimant was wearing dark clothing was not contradicted by claimant, who could not recall what he wore that evening. Further, while the Court credited claimant's testimony that the green light at the intersection of Nassau Road and the Parkway exit ramp was in claimant's favor as he rode across the Parkway exit ramp, claimant was still obligated "to use reasonable care for his . . . own safety, [and] to keep a reasonably vigilant lookout for vehicles" such as vehicles that would be exiting from the Parkway ramp (Palma v Sherman, 55 AD3d at 891). Claimant testified that he was able to see everything in front of him as he was riding his bicycle, that he had ridden that stretch of road numerous times before that evening and acknowledged that he did not stop, or even slow down, as he crossed the exit ramp because the light was in his favor. "The obligation to see what was plainly there to be seen extends to [him] as well" (Smith v State of New York, UID No. 2013-044-001 [Ct Cl, Schaewe, J., May 9, 2013]), and the Court finds that claimant failed to exercise "reasonable care" and "a reasonably vigilant lookout for vehicles" (Palma v Sherman, 55 AD3d at 891).
Thus, upon weighing the evidence and considering the proof, the Court concludes that claimant has established by a preponderance of the credible evidence the cause of action sounding in negligence against defendant. The Court further concludes that based upon the entirety of proof offered at trial, the liability should be apportioned 60% against the defendant and 40% against the claimant for the injuries allegedly sustained by claimant on November 11, 2010. Any motions made at trial upon which the Court had previously reserved or which remain undecided are denied.
The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.
Let interlocutory judgment be entered accordingly.
October 6, 2014
Albany, New York
James H. Ferreira
Judge of the Court of Claims