After a bifurcated trial on the issue of liability in a claim arising from a motor vehicle accident, the State was determined to be negligent. The State was found to be 100% liable with no comparative negligence assessed to claimant as a factual determination was made that she had the right of way and only seconds to react to the State vehicle entering the roadway.
|Claimant short name:||YORKE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended sua sponte to reflect the properly named defendant.|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||ELEFTERAKIS, ELEFTERAKIS & PANEK, P.C.
BY: Aaronda Watson, Esq.
Jordan A. Jodre, Esq.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Edward J. Curtis, Jr., Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 29, 2018|
|See also (multicaptioned case)|
On March 31, 2015, claimant Raynes Yorke was involved in a motor vehicle accident with a vehicle owned by the State of New York and operated by Rodney James (James), who was employed by the New York State Office for People With Developmental Disabilities (OPWDD) at the Bernard Fineson Developmental Center. The accident occurred on South Conduit Avenue near its intersection with Hook Creek Boulevard in Queens County, New York when the front driver's side of the State's gray Ford van collided with the passenger sideview mirror and door panels of claimant's 2001 red Toyota. A claim was filed with the Clerk of the Court of Claims and served on the Office of the Attorney General of the State of New York on May 22, 2015 and an answer was filed on July 6, 2015. The trial of this claim was bifurcated and addressed the issue of liability only. The trial was held in New York City on January 23, 2018. The proof presented at trial included testimony from claimant and James, as well as exhibits consisting of photographs, accident reports and the transcripts of the examinations before trial of claimant and James. Following the trial, the parties requested and were granted additional time to obtain and review the trial transcript and submit post-trial memoranda.TESTIMONY OF RAYNES YORKE
The claimant testified that she is a retired registered nurse, stating that her last position was as a nursing care coordinator at Elmhurst Hospital. Altogether, claimant's nursing career spanned over 40 years (TT: 9-12).(2) On March 31, 2015, the date of the accident, claimant was driving from her home in Springfield Gardens to The Vitamin Shoppe on South Conduit Avenue (South Conduit). She described the weather on that date as clear and dry. Claimant testified that there are four lanes in each direction on South Conduit with three traffic lights at each intersection, one for left turns, one for the middle two driving lanes and one for right turns (TT: 12-14). She testified that The Vitamin Shoppe was on the right side of South Conduit about three to four blocks past Hook Creek Boulevard (Hook Creek) and that she had been traveling in the right lane since she entered South Conduit from her home. Claimant testified that she had been driving for about five to seven minutes immediately prior to the accident and described the traffic along South Conduit as congested but moving steadily at a speed of 20 to 25 mph. Claimant testified that the speed limit on South Conduit is 35 mph (TT: 16-17).
The claimant testified that when she was about a half block from the Hook Creek intersection, she observed the signal light as green and traffic was moving. She testified that she first observed the State's gray van about three seconds prior to the accident. Claimant testified that the van was stopped and was "stopped on the sidewalk in a kind of slant to the right . . . it looked like it was parked" (TT: 17-18). She testified that she did not see any signal light blinking on the State van to indicate that it would be entering the roadway. As she approached the Hook Creek intersection, she felt an impact and heard a loud bang as the State van collided with her vehicle. Claimant then looked in her rearview mirror and saw the State van directly behind her on South Conduit. As there is no street parking on South Conduit, claimant pulled her vehicle off the right lane onto the sidewalk and stopped. Claimant testified that she then observed James pull up behind her onto the sidewalk. She testified that she then spoke to James and asked him why he had hit her. Claimant testified that James was very apologetic, stating that he was sorry more than once, that he was tired, and that he had worked a double shift the day before.
Claimant testified that she then examined the damage to her vehicle, stating that the passenger sideview mirror was smashed and hanging off the vehicle and the right front portion was damaged and scratched. (TT: 21-22). Claimant identified her vehicle in photo exhibit 1 and identified the location where she pulled onto the sidewalk and stopped following the accident (TT: 23-24).(3) Photo exhibits 3 and 3A show the damage to the sideview mirror and photo exhibit 5 details the damage to the door panels of claimant's vehicle (TT: 36-40).
On cross-examination, claimant was asked if the traffic was stop and go and she replied that it was not, testifying that traffic was moving steadily (TT: 42-43). Claimant testified that she saw James in the State van parked at a slant on the sidewalk but denied making eye contact with him prior to the accident. She also denied making any gesture for him to move into traffic, stating "[t]here was no reason to make any gesture. Traffic is moving. The light is green. I have the right-of-way. I don't know what I'd be gesturing for" (TT: 46-47). Claimant was shown her deposition testimony where she indicated that she asked James why he had hit her and that his reply was that he was sorry and was tired. She did not state at her deposition that James had told her he had worked a double shift the previous day. Claimant's response was that she thought she had previously testified to this at her deposition (TT: 50-53).TESTIMONY OF RODNEY JAMES
James was called as a witness by claimant and testified that on March 31, 2015, he was employed as a direct service assistant with the Bernard Fineson Developmental Center. At approximately 1:30 p.m. on that day, James testified that he was driving a gray Ford van owned by the State. He testified that he saw claimant's red Toyota traveling in the extreme right lane of South Conduit prior to the collision and when he first saw it, he was waiting to enter the roadway. James testified that he observed that the signal light at the Hook Creek intersection was red and that traffic was stopped on South Conduit. He stated that when the signal light turned green, he pulled onto South Conduit and it was then that claimant's vehicle collided with his van (TT: 56-59). James admitted that if he had waited an additional two seconds before pulling out that the collision would not have occurred. James agreed that photo exhibit 3 depicted the damage to claimant's sideview mirror. He denied that he apologized to claimant following the collision. James was then shown the transcript of his deposition, where he had answered yes to that very question.(4) He denied that he told claimant that he was tired or had worked a double shift the previous day (TT: 59-64). However, he agreed after his deposition testimony was read to him that the day of the accident, a Tuesday, was the last day of his work week (TT: 64-66).
James testified that claimant waved him out onto South Conduit by waving with one arm, although he could not recall which arm. He admitted, however, that he had testified at his deposition that both of claimant's hands were on the steering wheel (TT: 66-68).(5) Following the accident, James spoke to the police at the accident scene and over the telephone. The police accident report states that James told the officer that while making a turn out of the parking lot, he struck claimant's vehicle.(6) James admitted that nowhere in the police accident report does it state that claimant waved him into traffic (TT: 73-77). James testified that he prepared an MV-104 Report of Motor Vehicle Accident form on the day of the accident, where he stated that claimant's vehicle was making a right turn from the left lane and collided with James' vehicle as he was making a right turn (TT: 78-80).(7) James also prepared an incident report for the Bureau of Safety Services of OPWDD, in which he stated that he was on Hook Creek and South Conduit and while making a turn he was sideswiped by a car and that the damage to the State vehicle was a dent on the driver's side and that the damage to claimant's car was only that a mirror fell off (TT: 80-83).(8) James admitted that in neither of these reports did he allege that claimant had waved him into traffic on South Conduit (TT:83-84). It was not until his deposition on January 18, 2017 that he testified that he made eye contact with claimant and that she then waved him out onto South Conduit.(9)
During questioning by the Assistant Attorney General, James testified that he was operating the van that day and had stopped at a restaurant after returning from a facility in Brooklyn with the five individuals under his care and they wanted to stop to get something to eat (TT: 85-88). James identified two photographs that show the parking lot adjacent to the restaurant where they had stopped for lunch (TT: 89-91).(10) James testified that two other photographs depicted his view of the intersection at Hook Creek as he viewed it from the restaurant parking lot he was attempting to exit (TT: 92-93).(11) He testified that he was stopped waiting for a spot in traffic to open up so that he could pull out of the driveway of the restaurant parking lot and that it was at this point that the claimant waved to him to come out (TT: 93-96). James testified that the reason he apologized to claimant following the accident was not that he had caused the accident, but that "she was an older woman and it just seemed like the right thing to do" (TT: 100). He also testified with respect to the police accident report that what was reported that he said was not accurate in that he had told the police officer that when he pulled out, he was sideswiped by claimant's vehicle (TT: 105-106).LAW
In order to establish a prima facie case of negligence, claimant must demonstrate by a preponderance of the credible evidence that the State owed her a duty of care; there was a breach of that duty; and the State's breach of that duty was a substantial factor in causing the motor vehicle accident (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ). In general, drivers have a duty to operate their motor vehicles with reasonable care in light of the actual and potential risks that may exist as a result of weather, road, traffic and other conditions (PJI 2:77). Vehicle and Traffic Law § 1143 provides that "[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right-of-way to all vehicles approaching on the roadway to be entered or crossed." Furthermore, a driver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right-of-way (McPherson v Chanzeb, 123 AD3d 1098 [2d Dept 2014]; Bonilla v Calabria, 80 AD3d 720 [2d Dept 2011]).DISCUSSION
The claimant's testimony was that she first observed the State van about three seconds prior to the accident. At that time she was driving in the right lane of South Conduit and the signal light at the upcoming intersection with Hook Creek was green and traffic was moving steadily. She testified that she observed the State van stopped on the sidewalk and it appeared to be parked. The claimant did not observe a turn signal blinking on the van and she testified that there was nothing to alert her that James was about to move the State van into claimant's lane of traffic. Claimant denied that she ever waved to or signaled James to enter in front of her on South Conduit. According to claimant, the next thing that occurred as she proceeded closer to the Hook Creek intersection was that she heard a loud bang as the State van collided with the passenger side of her vehicle.
James's testimony was that he first observed claimant's vehicle as she was approaching in the right lane on South Conduit. He testified that he was waiting for traffic to clear so that he could turn right out of the restaurant parking lot onto the right lane of South Conduit. Contrary to claimant's testimony, James testified that immediately before he pulled out, the signal light at Hook Creek had turned red and that traffic was stopped on South Conduit. James testified that when the light turned green, he began to pull forward onto South Conduit and then claimant attempted to drive past him and sideswiped the van. James also testified that before he pulled out, he had made eye contact with claimant and she waved to him with one arm, signaling that he could pull out onto South Conduit.
It is uncontroverted that prior to the accident claimant was traveling in the right lane on South Conduit and as such, she had the right-of-way. Thus, in order for James to comply with Vehicle and Traffic Law § 1143, he was obligated to wait until all approaching vehicles with the right-of-way, including claimant's vehicle, had passed. James admitted that if he had simply waited an additional two seconds for claimant's vehicle to pass by, the subject accident would not have occurred. By pulling out onto South Conduit and colliding with claimant's vehicle, James failed to yield the right-of-way and violated Vehicle and Traffic Law § 1143, that is, unless his testimony is believed that prior to doing so claimant waved to James and purposefully signaled her intention to allow him to pull out in front of her. Claimant denied that she waved to him and James testified at trial that she did.
Resolving the issue of liability thus comes down to evaluating the veracity of the testimony provided by claimant and James. I found claimant's testimony to be clear, sincere, consistent and very credible. Her sincerity and credibility was demonstrated on one occasion of note during cross-examination when her testimony was shown to be inconsistent with her deposition testimony.(12) On the other hand, I found James' testimony at times to be vague, inconsistent and contradictory. In addition, the two accident reports prepared by him, the MV-104 and the OPWDD incident report, were inconsistent and did not mention his allegation that claimant waved to him. Upon observing James' testimony and his demeanor while doing so, as well as examining the accident reports prepared by him, I do not find him to be a credible witness. To begin with, James denied at trial that he apologized to claimant following the accident, a simple statement that was easily contradicted by reading to him his response to the same question at his deposition. On the critical issue of whether claimant had waved for James to proceed onto South Conduit immediately prior to the collision, James testified at trial that claimant waved to him but he could not recall which arm she had used to wave to him. James' testimony was placed in doubt by his deposition transcript, where he had testified that immediately prior to the accident he observed both of claimant's hands on the steering wheel. The veracity of James' allegation was also placed in doubt because he never made this statement in claimant's presence after the accident, nor did he relate this to the investigating police officers that came to the accident scene. To make matters worse, in neither of the two accident reports prepared by James immediately following the accident did James state that claimant waved to him to proceed onto South Conduit immediately prior to the accident. It is simply inconceivable that James would neglect to relate this critical fact as if accepted as true, it would place responsibility for causing this accident squarely upon claimant. The fact remains, however, that James did not relate to anyone that claimant waved him onto South Conduit until January 18, 2017, almost two years after the accident, and then only after being asked a leading question by the Assistant Attorney General near the end of his examination before trial.(13)
Upon consideration of all of the evidence, including the testimony of claimant and James and observing their demeanor while testifying, as well as reviewing all exhibits admitted at trial, I find the State liable to claimant, who established by a preponderance of the credible evidence that the State owed a duty to operate the van with reasonable care under the circumstances present, that this duty was breached as I find that James violated Vehicle and Traffic Law § 1143 when he entered South Conduit into the path of claimant's vehicle without yielding the right-of-way, and that this breach was the proximate cause of the accident (Estate of Cook v Gomez, 138 AD3d 675 (2d Dept 2016).
As to the issue of comparative negligence, it has been held that "a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" (Barbato v Maloney, 94 AD3d 1028 [2d Dept 2012]; Yelder v Walters, 64 AD3d 762, 764 [2d Dept 2009]). Claimant testified that she first saw the State van three seconds prior to the collision and did not see his vehicle enter onto South Conduit until she heard the noise caused by the State van striking the passenger side of her vehicle. Accordingly, I find that claimant had only seconds to react under these circumstances and as I find that claimant had the right of way and James failed to yield the right-of-way, no liability will be apportioned to claimant for her actions at the time of the collision.
Accordingly, I find that claimant has established her prima facie entitlement to a judgment of liability against the State, which is 100% liable with no comparative negligence assessed against the claimant. As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby 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.
May 29, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
2. References to the trial transcript are indicated herein (TT:).
3. She identified photo exhibit 2 as also depicting the area where the accident occurred, marking with a number 1 where she saw the State van on the sidewalk, a number 2 where the accident occurred, a number 3 where she pulled onto the sidewalk following the accident and a number 4 where the State van pulled in behind her (TT: 25-26, 33-35).
4. Exhibit 6, the examination before trial of Rodney James dated January 18, 2017 at p. 34, line 15.
5. Exhibit 6, the examination before trial of Rodney James dated January 18, 2017 at p. 49, lines 8-14.
6. Exhibit 8.
7. Exhibit 9, MV-104 Report of Motor Vehicle Accident.
8. Exhibit 7, OPWDD Bureau of Safety Services Incident or Investigation Report.
9. Exhibit 6, the examination before trial of Rodney James dated January 18, 2017 at p. 46, line 2-19.
10. Photo exhibits F and J.
11. Photo exhibits L and N.
12. Claimant testified that following the accident, she spoke to James and asked why he had hit her. She stated that he stated that he was sorry more than once, that he was tired and that he had worked a double shift the previous day. On cross-examination, she was shown her deposition transcript wherein her response to a similar question was that James had stated to her that he was sorry and was tired, not that he had worked a double shift. Claimant's response was "[a]nd I didn't say it in the deposition? Well, that's what happened. I'm sorry" (TT: 51-52).
13. Exhibit 6 at p. 46, lines 11-19.