Opinion
Claim No. 130723
05-15-2024
Joseph Mashinsky, as Administrator of the Estate of SHAINDY MASHINSKY, EVA ORDENTLICH, and SHLOMO ORDENTLICH, Claimants, v. State of New York, Defendant.
For Claimants: KELNER & KELNER, ESQS. By: Joshua D. Kelner, Esq. For Defendant: LETITIA JAMES, ATTORNEY GENERAL By: Albert Masry, Esq. Assistant Attorney General
Unpublished Opinion
For Claimants: KELNER & KELNER, ESQS. By: Joshua D. Kelner, Esq.
For Defendant: LETITIA JAMES, ATTORNEY GENERAL By: Albert Masry, Esq. Assistant Attorney General
LINDA K. MEJIAS-GLOVER, JUDGE
A trial on the sole issue of liability was conducted in person before this Court on May 30, 31 and concluded on June 1, 2023. Each party called four witnesses to testify.
The following exhibits were entered into evidence at the time of trial: Claimants' Exhibits 1 through 13, 14A12, 15 through 18, and 20 and Defendant's Exhibits B, D, G, M through P, and R.
On the record, the parties stipulated to the following facts:
the subject accident took place on August 24, 2016 at and/or near the intersection of State Route 59 and Augusta Avenue, Rockland County. The involved motorist was Sholom Lenchitz. Shaindy Mashinsky died following the accident. Joseph Mashinsky was duly appointed as the Administrator of the Estate of Shaindy Mashinsky.
RELEVANT TESTIMONY
Claimant's Witnesses
Eva Ordentlich
Ms. Eva Ordentlich testified that she is the sister of the decedent (TT. 22). She testified as to Shaindy's personality and character (TT. 25-26). It was her testimony at the time of the incident, Shaindy was 18 years old, was planning to head to Israel for seminary (TT. 26). At the time she passed away, Shaindy was employed working with special needs children in a public-school setting and planned on attending college to obtain a degree in education to teach children with special needs (Id.).
Trial Transcript.
Ms. Ordentlich described Route 59, in Monsey New York, as a long road with a lot of shopping (TT. 27). Close by, is an intersection with a crosswalk at Route 59 and Main Street, which is used to get to one of the shopping centers (TT. 29-30). She testified that there is another crosswalk on Remsen Avenue and Route 59, and housing developments on each side of Route 59, which are heavily populated (TT. 30-31). Ms. Ordentlich testified that if she was walking from her home to the shopping area, "[she] would walk down Joshua Court down Route 59, at a little past Augusta and then cross over the intersection and get to the shopping center" (TT. 33). She went on to testify that she would typically crossover Route 59 at Augusta rather than crossing in the main shopping area due to a "dilapidated auto repair shop" located at the corner of Joshua (TT. 34).
Ms. Ordentlich testified that on the day of the accident, Mr. Shlomo Ordentlich dropped off her and Shaindy at the shopping area around 5:30 pm so that Shaindy could purchase some clothing for seminary (TT. 45). She and Shaindy finished shopping between 8:20 pm and 8:30 pm and decided they were going to walk back to the Ordentlich home because Shlomo was unable to pick them up and bring them home (TT. 46). She testified that at the time they began to walk back, it was dark outside (TT. 47).
Ms. Ordentlich went on to testify that they walked to the intersection of Main Street and Route 59, crossed the intersection walked towards Augusta (Id.). She and Shaindy stopped shortly before they arrived at Augusta to cross over Route 59, (TT. 48), looked to the left then to the right to see whether there were any cars coming (TT. 49). She testified that she saw a car off to the distance by the bend to the right in the direction of Remsen Avenue (Id.). By observing the vehicle's headlights she determined that it was safe to cross the road (TT. 51), but as they were crossing, Shaindy stepped back toward the median and the coming vehicle veered into the median hitting her (TT. 52). She testified that Shaindy's "body like was catapulted" and that the "van, it like jumped it ended up landing a little bit more ahead of [Shaindy] on Route 59" (Id.). Shaindy was then transported to the hospital where she passed away the next day (TT. 53-54).
On cross-examination, Ms. Ordentlich testified that she was unaware if the vehicle could have stopped prior to hitting Shaindy. After reviewing her deposition testimony to refresh her recollection, she testified that she believed the vehicle could have made an abrupt, short stop, rather than veer (TT. 73-76).
Sholom Lenchitz
Sholom Lenchitz, the driver of the vehicle that struck Shaindy, testified that on August 24, 2016, at approximately 8:40 pm, he was driving his Toyota Sienna, with his seven-year-old son, back from a visit with his in-laws, who resided on Dolson Road, in Monsey (TT. 93-95). He testified that he proceeded on Remsen Avenue and then turned onto Route 59, heading in the eastbound direction, intending to turn onto Saddle River Road (TT. 95-96). He said he was driving the speed limit, 40 miles per hour, on Route 59 (TT. 96). When asked if he was aware that pedestrians could sometimes cross Route 59 in the middle of the block he responded "very subconscious" (Id.). He testified the appearance of crosswalks affects his driving, to wit: he slows down and is careful to give attention to pedestrians (TT. 97-98).
Mr. Lenchitz testified that on the night of the accident, he observed "something in the road" while he was coming over the hill on Route 59 (TT. 98) but did not slow down or stop his vehicle because he did not see pedestrians and "was slow to react" (Id.). He went on to testify that as he "came very close", he "came to focus" and knew it wasn't possible to stop (Id.). Rather than try to stop he "turned to the left as much as possible realizing they're crossing to the right and feeling [himself] completely out of the actual - any actual danger (TT. 98-99), but when he swerved to the left the corner of the passenger side of his vehicle struck Shaindy" (TT. 99).
On cross-examination, Mr. Lenchitz referred to the Department of Motor Vehicle Hearing transcript to refresh his recollection , and testified that "on that night in a vague way" he had an inclination that there were pedestrians crossing the roadway (TT. 108-109), but as he got closer to the pedestrians, he lost concentration and misidentified the pedestrians as objects in the road (TT. 120). He testified that as he approached the intersection at Augusta Avenue, he saw that there were pedestrians walking together in the roadway, the travel lane about 300 feet ahead of him. It was his testimony that his "concentration was dimmed from the feeling that it was an open road" (TT. 113). He testified that he never applied his brakes from time that he first thought that there were pedestrians crossing the road until the time that he saw them in front of his vehicle (TT. 114). He testified that he made the conscious decision to veer to the left into the median, rather than stop his vehicle (TT. 118).
Marked for identification as Exhibit H, but not entered into evidence .
Joseph Mashinsky
Rabbi Joseph Mashinsky, Shaindy's father testified that "Shaindy was a beautiful person, a beautiful girl inside and out. She had tremendous depth. She was an incredibly warm, loving person, a wonderful daughter, and incredible friend, a brilliant student" (TT. 131). He confirmed that Route 59 is the main road that runs through Monsey (TT. 133), and that prior to 2016, there were no crosswalks between Main Street and Remsen Avenue along Route 59 and that the distance between the two streets is "about.8,.7 of a mile," which contains a "very steep incline" and would take approximately 20 minutes to walk (Id.). Rabbi Mashinsky testified that after the accident, there was a crosswalk, a push button traffic light, and pedestrian controls installed at the intersection between Route 59 and Augusta Avenue (TT. 136).
Claimant's Expert, Nicholas Bellizzi, P.E.
Mr. Bellizzi testified as to his education, experience and pedigree, and after a brief voir dire, he was deemed an expert in the areas of traffic and highway design, as well as traffic engineering.
Mr. Bellizzi testified that in the field of roadway design, crosswalks are beneficial as they delineate where pedestrians should cross and provide advanced notice to approaching motorists that it is a location where people cross and creates an expectation for the motorist that pedestrians are going to cross (TT. 153-154). He testified that the purpose of a crosswalk is to change drivers' behavior, i.e., the driver will slow down and expect or anticipate that there may be pedestrians there causing the driver to scan for the presence of pedestrians near or approaching the crosswalk (TT. 154-155).
Over Defendant's counsel's objection, Mr. Bellizzi testified regarding the concept "perception reaction time", which applies to motorists and is defined as "the total elapsed time from when you first see something, observe something, to when your foot steps on the break" (TT. 159) or alternatively, is defined as "when you first observe something and you react by steering with your hands, and that's shorter reaction time than with your foot because your hands are already on the steering wheel". He went on to testify that the typical perception reaction time for a motorist for braking is 1.5 seconds under a "plain vanilla environment" (Id.), which means that there is no inclement weather, no sight obstructions, good visibility and lighting conditions, that the roadway is straight and level, and it is not a complex location (TT. 164). The less information to be processed leads to a shorter reaction time (TT. 164-165). He testified that the presence of a crosswalk affects reaction time as it creates the expectation that pedestrians may be present (TT. 166).
Mr. Bellizzi further testified that crosswalks affect pedestrian behavior as pedestrians "would seek out a crosswalk as a location where they want to cross, [where] they're expected to cross, rather than a location that has no crosswalk" (Id.) .
Mr. Bellizzi described the various types of crosswalks, attendant warning signs, pedestrian crossing signs located at the crosswalk (TT. 167), reflectors and signals (TT. 168). He gave testimony regarding the use and purpose of temporary signals (TT. 170). According to Mr. Bellizzi, the signs he described are all standard signs in the Manual of Uniform Traffic Control Devices (TT. 168). This manual, according to Mr. Bellizzi, is the one publication that all traffic engineers in all 50 states use (Id.).
Mr. Bellizzi testified that engineers evaluate conditions of roadways by conducting field audits during which they identify deficiencies in safety, and then recommend solutions. (TT. 171-172). He testified that some solutions can be implemented immediately, some are intermediate, and some are long term (TT. 172). He explained that, for example, paint and signs are "off the shelf" and can, therefore, be done in the same week (Id.).
With respect to the engineering concerns presented by long stretches of roadway between crosswalks in occupied areas, he testified that if crosswalks are too far apart (more than a quarter mile of walking distance), pedestrians will cross mid-block to get to their destination (TT. 172-173)
Mr. Bellizzi discussed the use and applicability of the New York State Department of Transportation Highway Design Manual ("HDM"), which provides standards and guidelines (TT. 173), and also directs its users to confer with publications of the American Association of State Highway and Transportation Officials (TT. 174).
Mr. Bellizzi specifically testified that HDM chapter 18.7.1.1 specifically pertains to pedestrian crossing distance (TT. 176). Mr. Bellizzi testified that in a suburban residential area, such as the where the accident in this action occurred, the HDM applies, and that the HDM indicates that a crossing "it's not to exceed a quarter of a mile" (TT. 178). He testified that the distance between Main Street where the last crosswalk was to Augusta Avenue is 0.3 miles (TT. 180), and that the distance between the crosswalk at Main Street and the crosswalk at Remsen Avenue is 0.6 miles, which pursuant to the HDM is "substandard" - meaning that it is unsafe (TT. 181). He clarified that the guidance standards are for reference, but the engineer must determine what is safe or not (TT. 178-179).
Next, Mr. Bellizzi was referred to Exhibit 5, "Walk and Bike Assessment" (TT. 181). He testified that a federally supported walking safety assessment study was performed along the portion of the roadway on Route 59 from "Main Street to the east of Main Street" and published on April 16, 2015 (TT. 183-184). He testified that it appeared that the two segments in Rockland County, a part of it on Route 59 in Monsey and part of it on Route 45 had been selected for study and listed as priority investigation locations (TT. 183). He then testified that, with respect to Route 59, the area from Main Street to the east of Main Street was examined - not in the direction of Augusta Avenue (TT. 184). He testified that, notwithstanding the fact that the assessment was for the area on the opposite side of Route 59 from Main Street, such assessment is relevant as both areas (to the east and to the west of Main Street) are similar (TT. 185-186). He testified that the assessment indicates, under "infrastructure issues", that "few marked crosswalks existed despite clear demonstrated need for pedestrian access to shopping centers, school, bus stops, and parking areas" (TT. 186), which he believes to be problematic because there are "lots of pedestrian generators" (Id.). He testified that, in his opinion, "the most important" observation made during the assessment was that pedestrians were crossing mid-block in order to get to the destinations - the pedestrian generators (TT. 188-189).
Mr. Bellizzi further testified regarding a conventional study conducted later in the year of 2015, which was published in March of 2016 (TT. 189), entitled "Pedestrian Safety Study, State Routes 59 and 45 (TT. 191, Exhibit 6). The study involved the collection of different types of data (TT. 189). He described, in detail, the process and protocol of a "conventional study" (TT. 189-190), and explained that the study also included a "spot speed study" as part of this study (TT. 191). Mr. Bellizzi's attention was drawn to several portions of the study. Notably, the study indicated that pedestrian mid-block crossings along Route 59 were the predominant type of crossing - exceeding crossings at intersections (TT. 194). The study further showed and that while vehicles tended to yield to pedestrians, there were greater instances of nonyielding observed outside of the downtown areas, such as where the accident in this case occurred (TT. 195). Additionally, the study indicated that pedestrians were generally observed to take the most direct route to their destination, including mid-block crossings (Id.). Lastly, he noted that the study indicated that there were a lot of collisions on Route 59 and that the percentage involving pedestrians were high. In his opinion notwithstanding the fact that there were no prior pedestrian accidents at the intersection of Augusta Avenue, the need for crosswalk treatment there is not diminished (TT. 196). It was also his testimony that that the "standard of care" for engineers is to be "proactive, not reactive" (TT. 197). Mr. Bellizzi next testified with respect to the recommendations contained in the published study of the placement of crosswalks on Route 59 (Id.). He testified that the study determined that 40 new crosswalks should be striped along the three-mile stretch of Route 59 (TT. 197), and that plans were created documenting the locations of these crosswalks (TT. 198), including one at its intersection with Augusta Avenue (TT. 199).
Mr. Bellizzi testified that in his opinion, within reasonable engineering certainty, that at "locations like Augusta, a crosswalk should have been placed" and that "many of those crosswalks could be installed immediately" (TT. 200-201). He testified that it could take a few hours to paint a crosswalk and a day to put a reflective sign, which would be an interim improvement until the final improvement could be completed (TT. 201-202). It was his testimony that the whole process for an interim improvement could be completed within a few weeks (TT. 202). Mr. Bellizzi further testified that in his opinion, it would not be appropriate for the State to fold the recommendations from the study into another larger project that would be done a year or more later, because the team identified and documented extensive safety deficiencies for pedestrians (TT. 202-203). He provided further examples of temporary improvements, which could be installed until the final could be installed (TT. 203). Finally, it was his opinion, within reasonable certainty, that following the publication of this study in March of 2016, a crosswalk at the intersection of Augusta Ave. and Route 59 could have been installed immediately with appropriate pedestrian crossing signage and an advanced pedestrian crossing sign that would have all been in conformance with the Manual Of Uniform Traffic Control Devices, and it would have been identified as a high visibility location for pedestrians to cross (TT. 204).
Mr. Bellizzi next gave testimony in the area of accident reconstruction, including the brake stopping distance, and gave his opinion based on his calculations as to Mr. Lenchitz's reaction time to avoid hitting Shaindy.
On cross-examination, Mr. Bellizzi testified that there were no pedestrian accidents at the location where the accident occurred in the three years prior to the safety study being conducted (TT. 225). He testified that in the five years prior to the accident there were no other pedestrian accidents nor were there complaints made by any civilians or town officials about the lack of a crosswalk at Augusta Avenue (TT. 233). With respect to the immediate installation of the crosswalks, Mr. Bellizzi now testified that it could take two weeks to send out the sketch for planning purposes, get a crew to look at the location and then order the material such as signage (TT. 239).
Mr. Bellizzi then testified that a driver should use reasonable care to avoid striking that pedestrian when he or she sees a pedestrian in the roadway (TT. 263). Mr. Bellizzi acknowledged that Mr. Lenchitz did not stop his vehicle, but rather veered off into the median prior to striking Shaindy (TT. 264). He testified that even if Mr. Lenchitz had been driving 60 miles per hour and was 400 feet away from Shaindy, he would have been able to bring his vehicle to a complete stop before reaching her (TT. 265). He conceded that having a crosswalk does not necessarily mean that a driver will yield to a pedestrian in the crosswalk (TT. 267).
On re-direct, Mr. Bellizzi testified that, consistent with good and accepted standards of roadway design, the State was required to act on its March 2016 recommendations with respect to Augusta Avenue, even though there had not been "prior pedestrian knockdowns at those intersections" (TT. 273). It was his testimony that the "recommendations were implementable very fast, what we call immediate. It's not a long term thing [that] ended up getting wrapped up into a long term thing. That wasn't necessary and it prolonged the time to make this intersection safe" (TT. 273-274).
Deposition Transcripts
Deposition Testimony of Sandra Jobson (Exhibit 16)
Upon consent of both counsel, Claimants sought to read portions of Ms. Jobson's deposition testimony in its case-in-chief rather than calling her as a witness and Defendant read portions in rebuttal. Notwithstanding the foregoing, Defendant called her to testify in person.
Claimants' counsel read portions of Ms. Jobson's deposition transcript testimony, summarized as follows: Sandra Jobson has been employed by the New York State Department of Transportation (hereinafter, the "NYSDOT") since 1993 (Exh. 16, pgs. 7-8). She testified that she received her bachelor's degree in 1992 in architecture from the New York State Institute of Technology and her master's degree in 2003 in regional planning from the State University of New York at Albany (Ex. 16, pg. 8). She testified that from 1998-2000 she worked for Einhorn Yaffe Prescott (Exh. 16, pg. 9), and that in 2015, she was the regional landscape architect environmental manager overseeing the group who supported highway improvements with landscape architecture and environmental review and permitting (Exh. 16, pg. 14).
Ms. Jobson testified that she was the project manager for the study of Route 59, which encompassed "the border of the Town of Ramapo with Clarkstown west to just beyond the New York State Thruway overpass" (Exh. 16, pg. 28), and her responsibilities included "delivering the study within the time frame that was established, working with the budget, working with the consulting firm, putting together a project plan and then making sure it's implemented" (Exh. 16, pg. 30). She testified that she was advised the study was a pedestrian safety study that included Route 59 and Route 45 and was chosen by the Town of Ramapo, based upon similar work that was conducted in the Albany office as part of a pedestrian safety action plan (Exh. 16, pg. 32). She went on to testify that the Pedestrian Safety action plan that commenced in 2015 and was finalized in 2016, was a statewide study choosing 20 "focus communities" that were identified as having higher pedestrian incident statistics (Exh. 16, pgs. 32-33, 40).
Ms. Jobson testified that the pedestrian safety study emphasized "engineering, enforcement and education so each component of that had that responsibility." She testified that as a team, they would access the sufficiency of the existing crosswalks (Exh. 16, pg. 44). She testified that the study recommended painting more crosswalks (Exh. 16, pg. 44-45). Ms. Jobson testified that more crosswalks would be an improvement to pedestrian safety based on the existing conditions, and the number of pedestrians (Exh. 16, pg. 74). She testified that "in order to improve pedestrian safety, you want to provide pedestrians the opportunity for safe crossing and crosswalks offer that opportunity" (Exh. 16, pgs. 74-75). Ms. Jobson testified that adding new crosswalks is part of the recommendation of creating "more of a network and more crossing opportunities for pedestrians" (Exh. 16, pg. 83).
Ms. Jobson testified that there was a roadway study done known as the Pedestrian Safety Action Plan and the Walk and Bike Assessment which consisted of studies of Routes 59 and 45 in Rockland County (Exh. 16, pg. 52). She testified that the team provided recommendations after conducting the Walk and Bike Assessment of Route 59 for pedestrians (Exh. 16, pg. 54). She went on to testify that there was a search of the New York State Department of Transportation Accident Location Information conducted from April 1, 2012, through March 31, 2015, which showed that there were 716 total crashes, 26 involving a pedestrian on Route 59 (Exh. 16, pgs. 71-72). She defined the term "traffic calming" as encouragement to drivers to drive slower or "at least the speed limit" (Exh. 16, pg. 83). Ms. Jobson testified that the NYSDOT is responsible for striping new crosswalks, at an approximate cost of $150,000 (Exh. 16, pg. 84).
In rebuttal, Defendant's counsel read portions of Ms. Jobson's deposition transcript testimony, summarized as follows: Ms. Jobson testified that it is the regional traffic and safety group's responsibility to oversee the safety of the roadways (Exh. 16, pg. 17). She testified that when the Walk and Bike Assessment of Route 59 for pedestrians' study was commenced there was a "Route 59 Lower Hudson Transit Link Project (hereinafter "LHTL") that was ongoing and they were going to be making transit improvements" which would be an opportunity to "make pedestrian improvements in that project" (Exh. 16, pg. 59). After the study was completed, Ms. Jobson "handed off" the study to Mark Tiano, the project manager of "the Route 59 Transit Sidewalk Improvements Project" to facilitate implementation of the recommendations (Exh. 16, pg. 92-93).
Deposition Testimony of Adam Levine, PE (Exhibit 17)
Upon consent of both counsel, the parties agreed to certain readings of Mr. Levine's case-in-chief and rebuttal readings.
Claimant's counsel read portions of Mr. Levine's deposition transcript summarized as follows: Adam Levine, PE testified that he is employed by the NYSDOT (Exh. 17, pgs. 7-8), and that in May of 2016, he became the Acting Regional Traffic Engineer for the Hudson Valley Office, Region 8, which is located in Poughkeepsie (Exh. 17, pgs. 23-24).
He testified that if Region 8 wanted to place a new crosswalk "it could have been either through the traffic group doing one of these traffic studies or the design group doing a capital project or somebody observing it and observing a location and getting back to us" (Exh. 17, pg. 99). He went on to testify that a study would have been done prior to placing a crosswalk "to determine whether a crosswalk was an appropriate treatment for that particular location" (Exh. 17, pg. 100). "An analysis would have to be done whether a traffic signal is warranted in a location. If a traffic signal is warranted and the department in the region decides to install one, then funding needs to be identified because the traffic signal typically in the Hudson Valley costs about [$]250,000 to install. So that funding would need to be identified and someone would need to design the signal" (Exh. 17, pgs. 100-101). Mr. Levine testified that this would fall within the design group, which is typically a long process and would typically be included in another capital project nearby as that is the most efficient method (Exh. 17, pg. 101). He testified that the painting of the actual crosswalk could be completed in a day (Exh. 17, pg. 100).
In rebuttal, Defendant's counsel read portions of Mr. Levine's deposition transcript testimony, summarized as follows: Mr. Levine received his bachelor's degree in civil engineering from Princeton University in 1988 and his master's degree from Polytechnic University in transportation planning and engineering in 2000 (Exh. 17, pgs. 8-9). He testified that in 1995 he became a professional engineer in the State of New York and in 1989 he became employed by the State of New York (Exh. 17, pgs. 11-12). His first assignment with the NYSDOT, was from 1989-2002, with the Region 10 Long Island Office (Exh. 17, pg. 13). He testified that in or around 2013, he took a position as the manager of the Hudson Valley transportation management center in Hawthorne, New York (Exh. 17, pg. 22). He explained that the management center is a facility used to "monitor the roadway using closed circuit television cameras and to post electronic messages on message signs that are over the highways and roadways in the seven counties of the Hudson Valley" (Id.).
Mr. Levine testified that in 2016, there were approximately six to seven people in the safety group. He testified that one group worked on the highway safety improvement program and another group responded to requests for safety studies (Exh. 17, pg. 56). The highway safety improvement group received an annual list from the Albany office containing the locations in Region 8 with the most crashes for the year. The expectation was that using the services of a consulting firm, the group would "analyze approximately 20 percent of those crashes each year or those locations each year" (Id.). The annual list formally known as Priority Investigation Location List ("PILL"), would contain approximately 50 locations, 10 of which would be selected for further analysis based upon whether those locations had previously been studied and whether an activity was planned in the capital program to make improvement in those locations (Exh. 17, pgs. 57-58).
Mr. Levine testified that the safety group does not address the locations in response to their inclusion on the PILL list, but rather "would receive approximately 200 letters annually from citizens or elected officials requesting traffic studies either at intersections or sections of roadways and they were assigned to this team to analyze" (Exh. 17, pg. 61). He testified that the team would initiate studies of areas if a staff member noticed there was an issue with a specific location and could raise it to a team member (Id.). He testified that an additional way for a location to be the subject of a safety study is by emails from the transportation management center to be sent out to "catch the attention of the regional director or the regional traffic engineer or anyone who might say that that might be a location that could be looked at" (Exh. 17, pg. 64). Mr. Levine further testified that the placement of a pedestrian crosswalk "in the middle of nowhere" would not necessarily calm traffic (Exh. 17, pg. 78).
Defendant's Witnesses
Sandra Jobson
Ms. Jobson put her pedigree information and employment history on the record. She testified that in 2015, her title was regional landscape architecture environmental manager, but she was assigned to be the project manager for the pedestrian safety plan involving Route 59, overseeing the day-to-day developments (TT. 282). She testified that the State hired an outside engineering firm, VHB, for the study, and put together a "study advisory committee" consisting of law enforcement, NYSDOT personnel, and local municipal representatives (TT. 283, 285). She went on to testify that the study had to be completed in a very short period of time because "we had a follow up project in that particular corridor, Route 59, called the [LHTL], which was going to enhance transit. So, the thought was that our study could look at pedestrian safety and circulation in the corridor and that what came out of our study then could be implemented as part of the larger project" (TT. 283, 284).
Ms. Jobson testified that VHB drafted the report, which contained recommendations, though not detailed recommendations for implementation, but that her group had a generalized implementation plan. She testified that it took about 12 months to take the conceptual plan that VHB drafted, to do scoping and preliminary design, and another 12 months for final design (TT. 291-293). After a final design was created, it went out "for a competitive bid," which took approximately 3 months, and then another 3 months for the State to clear the apparent low bidder and then the contractor could obtain materials and mobilize to the cites and get the necessary permits (TT. 294-295).
Ms. Jobson testified that Mark Tiano was the project manager of the LHTL (TT. 297). She testified that when she finished the study, she took the recommendations and sent the study to Mr. Tiano's group (Id.). Mr. Tiano's group then took that "concept plan" "and they go much deeper into each of those locations within that corridor to determine" whether "pedestrian signal poles at this location" needed to be added or updated. Next, the team "look[ed] at the grading and how to put the new sidewalks in, where the crosswalks would line up with the new sidewalks" (TT. 297-298). However, she conceded that the State had the capability to make improvements and modifications to roadways without the need to wait for the recommendations to merge into large projects for funding (TT. 308).
On cross-examination, Ms. Jobson testified that the "rule of thumb" is that crosswalks should not be more than 1,000 feet apart in populated areas (TT. 320). She testified it was not the intent of the study to implement the crosswalks recommended in April, right after the study was published, which was contradictory to what she testified during her deposition (TT. 322-323). She testified that her memory would have been better when she gave her deposition testimony than at trial (TT. 322-324).
On re-direct examination, she testified that the accident study is conducted by looking over a three-year period, which at the location in which the accident occurred there had not been any incidents with pedestrians (TT. 331). She testified that the study was a "planning level study" that could be handed to the LHTL project to be fully vetted and engineered prior to going into construction (TT. 333).
Sergeant Sean Lee
Sergeant Lee testified that he was been employed with Town of Ramapo Police Department since June 2000 (TT. 342). He testified that he was the first to arrive on scene after the accident and testified that there was a damaged vehicle and a female victim being treated (TT. 346). He testified that the distance between where Mr. Lenchitz described "seeing something in the road" to the accident location was measured to be approximately 450 feet (TT. 353). He testified that the "pedestrians out in the roadway have the right of way and the driver of the vehicle should have yield[ed] to those pedestrians" (TT. 358).
Mark Tiano
Mark Tiano testified that he has been employed by the NYSDOT for 23 years, and that he is currently the regional design engineer for Region 8 in the Hudson Valley (TT. 364). He put his pedigree and employment history on the record. He testified that in 2015 and 2016, he was the NYSDOT Region 8 design group and became aware of the Lower Hudson Transit Link ("LHTL") Project, which is "a bus rapid transit project that has a service that brings people from Westchester County to Rockland County, and in the reverse, it involves implementation of many traffic signal control options to give bus priorities through the corridor that it's traveling along, integrated bus stops, camera detection, video detection, message boards, and also upgraded pedestrian facilities to get to and from bus stops and along the route including sidewalks, crosswalks, things like that" (TT. 366-367). His role in the project was to coordinate/oversee the design approval process and the actual plan production process (TT. 367).
Mr. Tiano testified that the NYSDOT hired an engineering firm, Arup, to coordinate the design plans for the LHTL Project (TT. 368). He testified that the plan indicated that a sidewalk and three crosswalks were to be added along Route 59, one specifically across Augusta Avenue as an intersection rather than a "mid-block" crossing (TT. 373). He went on to testify that he would take a study such as this and look at the different aspects rather than just going out and striping crosswalks (TT. 374-375). He explained that he would consider the proximity of the intersection, whether a traffic control device is at the intersection, as well as whether there are existing sidewalks that permit crossing (TT. 375). Mr. Tiano testified that he provided the study plans to Arup to develop a conceptual design plan for the intersection of Route 59 and Main Street (TT. 376). He testified that Arups' preliminary design plans showed a recommendation for a rapid rectangular flashing beacon pedestrian signal to be installed along with striped crosswalk and curb ramps at the intersection (TT. 377).
Mr. Tiano testified that once Arup completed the design plans, they were reviewed internally within the design group and externally amongst all different groups in the department, which consisted of real estate groups, construction groups, survey groups, Traffic and Safety Group and maintenance groups (TT. 379). He testified that Joseph Hurley from the Traffic and Safety Group sent him an email dated November 16, 2017, discussing his group's concerns with the initial plan including the Augusta Avenue intersection (TT. 383). He testified that these comments were sent directly back to Arup, who redrafted the plans based upon the comments and discussion (TT. 380-382). Arup's re-drafted plan added installing a high intensity activated crosswalk ("HAWK") system (TT. 383). He went on to testify that the HAWK system has three-color lights similar to a traffic light, designated for pedestrian crossings (TT. 385). If the pedestrian pushes the button, the light will go orange and then red, to allow the pedestrian to cross the street (Id.).
Mr. Tiano testified that as of the date of his testimony, there was a HAWK system installed in each direction of travel placed on either side of the crosswalk and at a distance from the intersection of Augusta Avenue and Route 59, and that "the crosswalk is off the intersection" (Id.). He explained that this is typically installed this way to "if a car pulls out of Augusta and takes a left, they would then have time to see the crosswalk, see the HAWK signal there to stop them prior to the crosswalk" (TT. 386). He testified that when a study is done and a recommendation is made, such as to install a HAWK system, he would not recommend immediately painting a crosswalk while waiting for the HAWK system to implemented (TT. 387), because a crosswalk must be placed at the correct location with the appropriate measures being taken to allow a pedestrian to cross safely (TT. 388). He explained the possible negative outcomes if a crosswalk is "striped" without taking into consideration other factors, including the installation of an ADA compliant ramp (TT. 388). He further testified that there were recommendations in the study, which were not implemented by DOT (TT. 391).
On cross-examination, Mr. Tiano testified that with respect to the deadlines and timelines for work on projects, each project is put on a program and given a letting date (TT. 399). He testified that for a larger project a typical letting date varies, but it could be a year or two, or more (TT. 400).
Mr. Tiano stated that the "letting date" is when a contract for a project is advertised and opened for bids.
He testified that after received the study, he sent it Arup, the design consultant, to be further evaluated (TT. 402), but he did not give them a deadline to "turn things around for Route 59", because it was part of the bigger, overall project (TT. 404). The plan that was received back from Arup was dated October 23, 2017 (TT. 416).
Mr. Tiano agreed that both the original plan and the end plan from Arup indicated that a crosswalk with a signal should be placed at the intersection of Augusta Avenue and Route 59, with the one main difference being the type of signal to be installed (TT. 422-423). Mr. Tiano testified that there was a temporary traffic signal at the site of the location, however, there is nothing in the record indicating the date it was installed (TT. 413).
Mr. Tiano testified that he was not aware of any priority investigations for Augusta Avenue and Route 59 that involved pedestrians getting injured (TT. 386).
On re-direct, Mr. Tiano explained that once he receives plans, they must go through the design approval process before any project can be initiated (TT. 425-426). Mr. Tiano further explained that based upon the timing of the plan reviews and getting approvals and then implementing the process, plus procuring the signage poles, a crosswalk could not have been implemented by August 2016 (TT. 427).
Patrick Sbano
Defendant's expert, Patrick Sbano testified he is a civil engineer licensed in the State of New York since August 1996 (TT. 439). He testified that he is currently employed as the Director of Traffic Engineering for the City of New Rochelle and has been for approximately seven years (Id.). He testified that he reviewed the data from the five-year period prior to the accident for the intersection of Augusta Avenue and Route 59, which indicated that there was one prior accident involving a pedestrian. Based upon his review of this data, it was his opinion that the data did not reveal a dangerous condition at the site nor that it posed a dangerous condition for pedestrians crossing the road as of August 24, 2016 (TT. 442-443, 448). He explained to the Court the benefits and purposes of a crosswalk are to alert motorists to the possible presence of pedestrians, "helps to channelize pedestrians to an area where there may be more favorable conditions to cross" (TT. 443).
Mr. Sbano further testified that, after reviewing the plan for Augusta Avenue and Route 59, it was his opinion that without additional enhancements such as signs, beacons, or a HAWK system, simply striping a crosswalk would not be good engineering practice (TT. 451). He testified that even if NYSDOT determined to install a HAWK system at the site in August 2015, it could not have been completed by August 2016 (TT. 456). He went on to testify that in order to be compliant with the American Disabilities Act ("ADA") and install the curb cuts for ramps in the sidewalk at August Avenue, it would take approximately one year to conduct a survey, create design plans, and put out bids for construction (TT. 458). Mr. Sbano opined that the absence or presence of a crosswalk would not have prevented the accident in this case, because the motorist saw the pedestrians. The point of the crosswalk is to alert motorists to the possible presence of pedestrians so if the motorist has already seen the pedestrian, there is no additional benefit to having a crosswalk (TT. 463).
On cross-examination, Mr. Sbano testified that as a roadway engineer, it is his job to assess a roadway in light of its ongoing use and operation and not wait for accidents to happen to do so (TT. 473). He testified that he did not rely on the HDM when opining on his cases (TT. 476). He testified that if there are not enough crosswalks in an area given the pedestrian traffic, the likelihood of mid-block crossings will increase (TT. 477).
LAW AND ANALYSIS
The facts of this case are tragic; and the Court truly sympathizes with Shaindy's family, friends, and community. The Court is tasked with determining, based upon a careful review of the testimony of the witnesses and exhibits in evidence whether a dangerous condition existed and that the State has breached its duty to alleviate a known hazardous highway condition, to wit: whether the State's failure/delay to install a pedestrian crosswalk at the intersection of Augusta Avenue and Route 59 in Monsey, New York was the proximate cause of Shaindy's untimely death.
Application of the Doctrine of Qualified Immunity
It is well-settled that the State of New York has the absolute duty to maintain its roadways in a reasonably safe condition (Friedman v State of New York, 67 N.Y.2d 271, 283 [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 N.Y.2d 91 [1978]).
"While [the State's] duty is nondelegable, it is measured by the courts with consideration given to the proper limits on intrusion into the municipality's planning and decision-making functions [and] in the field of traffic design engineering, the State is accorded a qualified immunity from liability arising out of a highway planning decision" (Friedman v State of New York, 67 N.Y.2d 271, 283 , see also, Alexander v Eldred, 63 N.Y.2d 460, 465-466 [1984]; Weiss v Fote, 7 N.Y.2d 579, 585-586 [1960]).
Applying the doctrine of qualified immunity, the State may be held liable when it is evident that its study of a traffic condition is "plainly inadequate or there is no reasonable basis for its traffic plan" (Friedman v State of New York, 67 N.Y.2d at 283; citing, Alexander v Eldred, 63 N.Y.2d 460, 465-466 [1984]; see also, Weiss v Fote, 7 N.Y.2d 579, 589 [1960]). Here, there is no credible evidence or testimony indicating that either of the two studies conducted were insufficient or inadequate.
Next, "[o]nce the State is made aware of a dangerous traffic condition it must undertake a reasonable study with an eye toward alleviating the danger" (Friedman v State of New York, 67 N.Y.2d 271, 284; citing, Heffler v State of New York, 96 A.D.2d 926, 927 [2d Dept 1983]). Thereafter, upon implementing a traffic plan to alleviate such dangerous condition, "it is under a continuing duty to review its plan in light of its actual operation" (Friedman v State of New York, 67 N.Y.2d 271, 284 ; citing, Weiss v Fote, 7 N.Y.2d 579, 587, supra ]). Furthermore, once a decision has been reached to go forward with a plan designed to remedy a dangerous condition, liability may flow from a failure to effectuate the plan within a reasonable time period (Friedman v State of New York, 67 N.Y.2d 271, 286).
In analyzing the facts of this case, the Court must first determine that a dangerous condition existed at the situs of the accident, and if so, did the State have actual or constructive knowledge of such dangerous condition. If the Court determines these two questions in the affirmative, it is for the Court to determine if the State's delay in remedying such dangerous condition constitutes a breach of its duty owed to Claimants and if such breach was the proximate cause of the accident, which resulted in the death of young Shaindy. Only if all of the foregoing is decided in the affirmative can the State be held liable.
Whether a Dangerous Condition Existed
Here, the State completed two studies of the area surrounding and including the situs of the fatal accident - the Walk and Bike Assessment followed by the Pedestrian Safety Study. The record is clear that the NYSDOT Pedestrian Safety Study was not conducted in response to reports of pedestrian crash data at the specific situs of the accident, but rather "[a]s a consequence of the Walk and Bike Assessment and knowledge of other safety deficiencies in the corridors," and it was "initiated to further identify specific recommendations that could be implemented to help improve pedestrian safety along Route 59 with an emphasis on engineering, education and enforcement" (Exh. 6, page 5). Moreover, the studies did not reveal that there had been any pedestrian crashes involving motor vehicles at the intersection of Augusta Avenue and Route 59 during the period of April 1, 2012 through March 15, 2015 (see Exh. 6, pages 284, 286). The studies did, however, reveal a high incidence of mid-block crossing at this intersection. The Court cannot find anything in the record to demonstrate that at the time the report of the Pedestrian Safety Study was issued, the intersection of Augusta Avenue and Route 59 had been designated or identified as a dangerous condition. The lack of prior similar accidents is an indication that the roadway is reasonably safe for those who exercise reasonable care (Terrazas v State of New York, UID No. 2011-018-222, [Fitzpatrick, J. June 30, 2011]; Dahl v State of New York, 13 Misc.3d 590 [Ct Cl 2006] affd 45 A.D.3d 803; Fowle v State of New York, 187 A.D.2d 698 [2d Dept 1992]).
Whether the State Breached Its Duty
The Court finds that Claimants did not demonstrate a breach of the State's duty to correct a dangerous condition, even if one existed. The Court is satisfied that the projected time to complete the installation of the crosswalk, along with all the attendant safety equipment, at the intersection at issue was not unreasonable. Though the Pedestrian Safety Study defined the implementation period for the striping of new crosswalks, as well as installing traffic and pedestrian signal equipment as "short" (see Exh. 6, page 38), the credible testimony satisfactorily demonstrates that the process and review the State determined was required to implement such an installation plan was appropriate, in light of the absence of any evidence of past pedestrian crashes, injuries or fatalities at the specific site of the accident in this case (see Exh. 6, page 286).
Whether the Absence of a Pedestrian Crosswalk Was the Proximate Cause of the Accident
Assuming arguendo, this Court would have determined that a dangerous condition existed at the intersection of Augusta Avenue and Route 59, and that the State's delay in striping a cross walk there was unreasonable, the Claimants failed to satisfactorily demonstrate that the State's delay was the proximate cause of the accident and, consequently, Shaindy's death (See, eg., Sheehan v City of New York, 40 N.Y.2d 496, 501 [1976] ["Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint."], citing, Saugerties Bank v Delaware & Hudson Co., 236 NY 425 [1923]; see also, Donaghy v Bilotti, 159 A.D.2d 478 [2d Dept 1990], appeal denied, 76 N.Y.2d 702 [1990]).
Mr. Lenchitz's Failure To Brake Was The Proximate Cause Of The Accident
Every motorist is bound to use his senses to see what is before him (Robinson v State of New York, 38 Misc.2d 229, 234 [Ct Cl 1962], affd, 19 A.D.2d 946 [3d Dept 1963], appeal denied, 14 N.Y.2d 484 [1964]). Significantly, Mr. Lenchitz testified that he was familiar with the accident site as a resident of Monsey. He further testified that just prior to the accident, he was traveling at a speed of approximately forty miles per hour when he observed "something" "vaguely" approximately 450 feet away. It was his clear testimony that he swerved into the median to avoid collision with what he saw in the road rather than stop to avoid any collision.
In light of the foregoing, it is this Court's determination that there is no basis for finding that the absence of those markings, signs, speed control devices and design details caused Mr. Lenchitz to do anything different than he would have done had they been present (see, Feeney v Holeman, 73 A.D.3d 848, 849 [2d Dept 2010] [summary judgment awarded to town; absence of warning signs or strobe light at intersection could not be a proximate cause of the accident where offending driver was familiar with the intersection where the accident occurred]; Gilberto v Town of Plattekill, 279 A.D.2d 863, 864 [3d Dept 2001] [town awarded summary judgment; absence of warning sign or other traffic control device or markings may be excluded as a cause of the accident if the offending driver's awareness of the conditions prescribed the same course of action as the warning sign would have or if the driver, due to familiarity with location, actually had the danger in mind upon approach to the location]).
This Court is thoroughly convinced that Mr. Lenchitz's decision to swerve rather than brake to avoid collision when he saw "something" in the road was the proximate cause of the accident and that there was no causal connection between any inaction, failure or negligence on the part of the State and Shaindy's death (see, Shaw v State of New York, 196 Misc. 792 [Ct Cl 1949]). Had he taken the appropriate action to avoid collision, there would have been no accident (see, Tomassi v Town of Union, 46 N.Y.2d 91 [1978]).
Decision
There can be no question that the loss of young Shaindy's life is a great tragedy. Her loss saddens this Court as it does, no doubt, sadden and continue to devastate her family, friends and community. It is with a heavy heart that this Court must find the State is not liable for her loss and Claim 130723bis hereby dismissed. Having carefully reviewed the credible testimony and evidence, it is clear that the State did not breach its duty and that the absence of the crosswalk was not the proximate cause of the action. It is this Court's finding that the proximate cause of the accident was Mr. Lenchitz's negligence and carelessness, and the fault for the loss of Shaindy's life falls squarely on the shoulders of Mr. Lenchitz.
Any and all motions not previously decided are denied.
Let Judgment Enter.