Claim for DOT's alleged tortious interference with towing contract dismissed after trial.
|Claimant(s):||JOHN'S BODY SHOP, CHRISTOPHER CHORDAS and JOHN CHORDAS|
|Claimant short name:||CHORDAS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE C. SCHAEWE|
|Claimant's attorney:||LAW OFFICES OF RONALD R. BENJAMIN
BY: Ronald R. Benjamin, Esq., of counsel
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Douglas H. Squire, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 25, 2019|
|See also (multicaptioned case)|
Claimant John's Body Shop is a truck towing and recovery business owned by two brothers, claimants John and Chris Chordas. Claimants commenced this action to recover damages from defendant State of New York (defendant) for the loss of towing fees allegedly caused by the tortious interference with a towing contract by one of its employees. Trial was held in the Binghamton District on October 21, 2019.
John Chordas testified that on Saturday March 3, 2018, his brother received a phone call and subsequent authorization by fax from Schneider National (Schneider), a trucking company, to tow a jackknifed tractor trailer (the Wreck) from where it had slid off Interstate 81 (I-81) in Broome County during a snowstorm. Chris Chordas, who also testified, said that because this was an interstate highway, a lane closure would be needed in order to safely remove the Wreck from the side of the road. He contacted Edward Gent, a Department of Transportation (DOT) employee, to determine whether the lane closure could be done on that date. Gent advised that rather than calling out a crew on the weekend, they would close the lane between 9:00 and 9:30 a.m the following Monday morning, March 5, 2018.
John and Chris Chordas drove two large wreckers/tow trucks to the scene at approximately 9:00 a.m. on March 5th. They passed a DOT crew on their way to the scene, although the crew had not yet begun to close the lane. The Wreck was located on the left side of the road, in the median and completely off the shoulder. John Chordas parked his truck on the left side of the road behind the Wreck, and Chris Chordas parked his truck about ten feet in front of the Wreck. The Chordas' testimony was inconsistent, but it appeared that they moved one or more barrels which had already been located at the scene to slightly behind the Wreck and partially in the lane of traffic. Chris Chordas hooked a tow line to the Wreck.
John Chordas testified that at that point, a State truck driven at a high rate of speed approached the scene, and Gent began screaming at them, telling them to get their vehicles off the highway and that he was going to call the police. Another tow truck operator arrived on the scene, as did a State Trooper. Chordas said that Gent told them to leave, and they eventually did so, without completing the job.
John Chordas also stated that he had been a tow truck operator for many decades and frequently towed vehicles without the necessity for a lane closure. He said that claimants always followed appropriate safety practices in doing the job. He testified that the company would have billed approximately $14,300 for the job.
On cross-examination, Chordas said his wrecker was 102 inches wide, and that about 3½ feet of it was protruding into the left lane of the highway when he parked it by the Wreck. Chordas then changed his testimony to state that his entire vehicle was completely out of the lane and onto the shoulder.
Chris Chordas testified that he was contacted by Schneider to do a recovery of the wrecked truck. He said that the arrangements were made on Saturday March 3, 2018, and that Schneider faxed an authorization to recover and store the Wreck. He stated that claimants handle approximately 20 to 30 major tractor trailer wrecks annually. He testified that he had never had to get permission from DOT to handle those wrecks, because they were not usually accompanied by lane closings. In this case, however, he knew that they would tie up at least one lane and possibly both lanes in getting the Wreck out of its jackknifed position (it was facing backward toward oncoming traffic).
Chordas said that because a lane closing would be required, he contacted Gent at DOT to inquire if they could do it that day. He stated that Gent did not want to call out a crew on a Saturday, so they made arrangements to meet the following Monday morning at around 9:00 a.m. When he arrived at the scene of the Wreck, there was a DOT vehicle parked in a turnaround about a quarter-mile in front of the Wreck. Chordas pulled his truck over and parked "partially in the lane, with two-thirds of the truck off the road."(1) He said that his vehicle protruded about 1½ feet into the highway. Chordas testified that they were going to wait for the DOT crew to complete the lane closure before taking any action. There were barrels at the scene already, so he placed one behind the Wreck. He also put out some cables in preparation for the towing job. He could not recall if he had already attached them to the Wreck.
At that point, Gent arrived on the scene, highly agitated. Chordas said Gent asked what they were doing, who had called them, and threatened to have them removed from the towing list in New York State. They eventually left the scene without completing the job.
On cross-examination, Chordas stated that he contacted DOT because he believed that the lane closure was necessary to perform the job. He acknowledged that when he parked his truck at the scene, part of it was impeding travel in the left lane by approximately 1½ feet.
At the close of Chris Chordas' testimony, claimants rested their case. Counsel for defendant then moved to dismiss the claim, stating that it was not clear exactly what the cause of action was, but that if it was negligence, no duty had been established. Claimants' counsel responded that whether the cause of action was characterized as "tortious interference" or negligence, defendant had no basis to stop claimants from completing the job. Counsel for defendant requested that the Court take judicial notice of Highway Law § 15 (2). The Court reserved decision on the motion.
Joseph Sanyshyn, a Highway Maintenance Supervisor I for DOT, testified on behalf of defendant. On March 5, 2018, he was in charge of a road crew tasked with closing the left lane of I-81 in front of the Wreck, so that it could be towed away. His truck was parked at a turn-around approximately 1/4 mile before the Wreck, and his crew had just put up a sign stating Road Work Ahead when he saw claimants' two wreckers approaching the scene. He called his supervisor, Gent, to advise him that the wreckers were on the scene. He said he called because usually whoever comes to tow the disabled vehicle does not get involved until the lane is closed and the scene is safe for workers and the traveling public. He stated that simply putting some barrels in the lane was not safe, and that occupying any portion of the road presented a serious danger to the traveling public.
Gent also testified. He acknowledged that Chris Chordas called him on Saturday March 3, 2018 for a lane closure to tow the Wreck. Gent told Chordas the Wreck was completely off the road and did not pose a threat to the traveling public, so that he could not justify sending out a crew on the weekend. Gent said he advised Chordas that DOT would close the lane Monday morning.
Gent testified that at the location of the Wreck, the left shoulder is three feet wide. He also stated that State regulations require a minimum of 760 feet of tapering cones to close the lane.
The morning of March 5, 2018, Gent sent a crew out to start closing the lane. He said that a different towing company (Rick and Rich) stopped by the DOT shop, advised that they would be performing the job, and that they had the keys to the Wreck. Gent received a call from Sanyshyn that claimants' tow trucks were present, and Gent proceeded to the scene. He testified that when he arrived, one of claimants' wreckers was in the passing lane of the highway, with a cable attached to the Wreck. He stated that the wrecker trucks were impeding left lane traffic, causing an immediate hazard to the traveling public. He saw that a couple of barrels had been moved into the road, but those barrels in no way allowed for a safe lane closure.
Gent said that he told the Chordas brothers they had to remove their trucks from the road until the lane was properly closed. He testified that they moved very slowly, and he yelled at them again to move the trucks.
A State trooper arrived on the scene, although Gent was not clear who contacted the police. A Rick and Rich towing truck also arrived on the scene. Gent said it was not up to him who did the job, but that Rick and Rich towed the Wreck.
On cross-examination, Gent stated that he told Chris Chordas the lane would be closed by around 9:30 a.m. Monday morning. However, when he arrived on the scene the Chordas brothers were not waiting for the lane to be closed before trying to tow the Wreck. He said that with claimants' truck in the road and the cable hooked to the Wreck, there was not only a threat posed to the traveling public, but also to the Chordas brothers. He denied ever telling them they could not do the job, as that was not up to him.
Defendant rested its case at the close of Gent's testimony. Defendant renewed its motion to dismiss. The Court again reserved decision.
Highway Law § 15 (2) provides in pertinent part: "[t]he commissioner of transportation shall have the power to cause the immediate removal, from the right of way of any state highway, of any vehicle which obstructs or interferes with the use of such a highway for public travel." It is clear that Gent was authorized to demand that claimant's trucks be moved out of the lane of travel immediately, as they posed a clear and present danger to the traveling public.
To the extent that claimants are attempting to assert a cause of action for tortious interference with a contract, a claimant must establish "(1) the existence of a contract between [claimant] and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render performance impossible; and (4) damages to [claimant]" (Kronos, Inc. v AVX Corp., 81 NY2d 90, 94 ). No credible evidence was introduced which indicated that Gent made any determination regarding which company was going to tow the Wreck, or that he otherwise induced Schneider to change its mind about which company was going to do the work.
To the extent that claimants are attempting to assert some nebulous cause of action for negligence, there was no proof that defendant owed claimants any duty, or that any conceivable duty was breached. To the contrary, it appears that the parties acting inappropriately - and in fact negligently - were claimants. The actions taken by the Chordas brothers on the scene that day, which actions they freely acknowledged, could have resulted in a tragedy and one or more deaths. That such a result did not occur is fortuitous and due to the actions of Gent.
Claimants have failed to set forth a prima facie case and defendant's motion to dismiss is granted. Claim No. 131302 is hereby dismissed in its entirety. Let judgment be entered accordingly.
October 25, 2019
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
1. All quotes herein are taken from the Court's notes of the proceeding, unless otherwise indicated.