                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: March 5, 2015                       518859
________________________________

BARBARA GRAFF, as Executor of
   the Estate of GARY MYERS,
   Deceased,
                    Appellant,
      v                                       MEMORANDUM AND ORDER

STATE OF NEW YORK,
                    Respondent.
________________________________


Calendar Date:   January 6, 2015

Before:   Garry, J.P., Egan Jr., Lynch and Clark, JJ.

                               __________


      Graff Law, LLC, Kingston (Sharon A. Graff of counsel), for
appellant.

      Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.
Lang of counsel), for respondent.

                               __________


Egan Jr., J.

      Appeal from a judgment of the Court of Claims (Hard, J.),
entered July 9, 2013, upon a decision of the court in favor of
defendant.

      The underlying claim arises out of a motor vehicle accident
that occurred at the intersection of DeWitt Mills Road and State
Route 32 in the Town of Rosendale, Ulster County on April 13,
2006. Immediately prior to the accident, claimant's husband
                               -2-                518859

(hereinafter decedent)1 was operating his 1999 Honda 1100
motorcycle eastbound on DeWitt Mills Road with claimant as his
passenger. As decedent approached the intersection with State
Route 32, decedent came to a stop before the stop sign, put his
feet down and looked in both directions in preparation for making
a left-hand turn onto State Route 32 northbound. Claimant was
familiar with this intersection and was aware that, due to a rock
outcropping near the northwest corner of the intersection, his
view of southbound traffic on State Route 32, which had a posted
speed limit of 55 miles per hour, was limited. To improve his
vantage point, decedent slowly inched forward – with his feet
still down – and again came to a complete stop. At this point,
decedent was past the stop line on DeWitt Mills Road and was in
close proximity to the travel portion of State Route 32.2
Decedent then looked to his right, looked across the road, looked
to his left, looked to his right again and then looked back to
his left again before proceeding into the intersection. Shortly
thereafter, while roughly in the middle of the southbound lane of
State Route 32, decedent's motorcycle was struck by an automobile
operated by Kevin Mayes. As a result of this collision, decedent
sustained numerous injuries, including a broken hip, a fractured
femur and a crushed left foot – the latter of which required
amputation. Decedent also was ticketed for failing to yield the
right-of-way.3

      The record reflects that defendant, through its Department
of Transportation (hereinafter DOT), undertook a traffic
investigation of the subject intersection in 1990 and, as early
as 1991, appears to have acknowledged in a letter to the Town of


     1
        Decedent subsequently died from causes unrelated to the
accident, and his wife was substituted as claimant herein.
     2
        Decedent variously testified that – the last time he came
to a stop – his front tire was "almost on" the travel portion of
State Route 32 or was approximately four or five feet short
thereof.
     3
        According to decedent, this ticket subsequently was
dismissed.
                              -3-                518859

Rosendale Town Supervisor4 that "an existing rock embankment in
the northwest quadrant of the intersection . . . limit[s] sight
distances for motorists egressing DeWitt Mills Road and looking
north on [State] Route 32."5   Although DOT concluded in 1994
that a speed reduction for this portion of State Route 32 was not
warranted, a warning sign advising of the approaching
intersection and suggesting an advisory speed of 35 miles per
hour for southbound motorists thereafter was installed and, in or
about 1995, flashing beacons were added thereto. Concerns
regarding the intersection apparently persisted and, in March
2000, one of DOT's engineers again "recognize[d] the need to
improve motorists['] sight distance to the north of the
intersection . . .[, which could] be addressed by cutting back
the existing rock embankment located in the northwest quadrant of
the intersection." Removal of the outcropping – budgeted at a
cost of $350,000 – was included in the capital construction
program for fiscal year 2006-2007, but remedial efforts had not
been undertaken as of the time of decedent's accident.

      Decedent thereafter commenced this negligence action
against defendant seeking to recover for injuries sustained in
the accident. Decedent apparently was quite ill at the time of
trial, as a result of which his examination before trial
testimony and a portion of his testimony given at a hearing held
pursuant to General Municipal Law § 50-h were received into
evidence. The Court of Claims thereafter rendered a decision in
favor of defendant, finding that claimant failed to prove that
defendant's remedial efforts were unreasonable or inadequate and,
in any event, that any negligence on the part of defendant in
failing to remove the rock outcropping was not the proximate


    4
        The copy of this document reproduced in the record on
appeal omits both the letterhead and the identity of the
signatory, but it contains the same DOT case and file numbers as
appear in other letters authored by DOT representatives.
    5
        Claimant's expert subsequently would testify that the
minimum safe sight distance for this intersection was 620 feet,
but that, due to the rock outcropping, the available sight
distance was only 365 feet.
                               -4-                518859

cause of the accident.   This appeal by claimant ensued.

      We affirm. "[I]n the field of traffic design engineering,
[defendant] is accorded a qualified immunity from liability
arising out of a highway planning decision. . . . Under this
doctrine of qualified immunity, a governmental body may be held
liable when its study of a traffic condition is plainly
inadequate or there is no reasonable basis for its traffic plan.
Once [defendant] is made aware of a dangerous traffic condition
it must undertake reasonable study thereof with an eye toward
alleviating the danger" (Friedman v State of New York, 67 NY2d
271, 283-284 [1986] [citations omitted]; see Racalbuto v Redmond,
46 AD3d 1051, 1052 [2007]; Winney v County of Saratoga, 8 AD3d
944, 945 [2004]). If defendant's response to an identified
hazard is unreasonably delayed, defendant must demonstrate either
that the delay "was necessary in order to study and formulate a
reasonable safety plan, that the delay was itself part of a
considered plan of action taken on the advice of experts, or that
the delay stemmed from a legitimate ordering of priorities with
other projects based on the availability of funding" (Friedman v
State of New York, 67 NY2d at 287; see Giske v State of New York,
191 AD2d 675, 676-677 [1993]).

      Although the parties continue to debate whether, consistent
with the foregoing principles, defendant's response to the
acknowledged hazard was adequate and, further, whether the
documented delay in cutting back the offending outcropping was
unreasonable, these issues need not detain us. Assuming, without
deciding, that defendant's efforts in this regard indeed were
inadequate and/or unreasonably delayed, thereby establishing that
defendant was negligent, claimant failed to demonstrate that such
negligence was the proximate cause of decedent's accident. In
this regard, we note that the Court of Claims expressly credited
the testimony offered by Mayes as to, among other things, the
speed at which he was traveling as he approached the intersection
in question, and the court's credibility determination is
entitled to some measure of deference (see Shon v State of New
York, 75 AD3d 1035, 1036 [2010]). That said, even if we were to
discount Mayes' testimony on this point – wherein he stated that
he was traveling between 40 and 45 miles per hour as he proceeded
southbound on State Route 32 and was periodically braking as he
                               -5-                518859

approached the intersection – and, further, assumed that Mayes
was traveling at the posted speed limit of 55 miles per hour at
the time of the collision,6 claimant's proof at trial still fell
short.

      As noted previously, claimant's expert testified that the
minimum safe sight distance for this intersection was 620 feet;
due to the rock outcropping, the available sight distance was
only 365 feet. Claimant's expert also testified that a vehicle
proceeding at 55 miles per hour travels approximately 80 feet per
second, that the front wheel of decedent's motorcycle "was just
about on the double yellow line" of State Route 32 when he was
struck by Mayes' vehicle and that it took decedent approximately
three seconds to accelerate onto State Route 32 and reach the
point of impact from his stopped position on DeWitt Mills Road.
Although decedent testified that he did not see Mayes' vehicle
prior to entering the intersection, decedent also testified that
he last looked to his left, i.e., northbound on State Route 32,
prior to pulling out into the intersection. If – as claimant's
expert testified – the collision occurred three seconds after
decedent began to accelerate, then Mayes would have been
approximately 240 feet north of the intersection when decedent
pulled out onto State Route 32 (80 feet per second x 3 seconds =
240 feet), thereby placing Mayes' vehicle well within the 365
feet of available sight distance.7 Hence, regardless of whether
the rock outcropping precluded decedent from seeing Mayes'
vehicle as it began its initial descent toward the intersection,
the record nonetheless establishes that Mayes' vehicle was well
within the available sight distance during the three seconds that


     6
        Mayes was not ticketed as the result of this accident,
and nothing in the record suggests that he was speeding prior to
colliding with decedent.
     7
        If, as the Court of Claims found, Mayes was traveling
only 45 miles per hour as he approached DeWitt Mills Road, this
would place Mayes within approximately 198 feet (66 feet per
second x 3 seconds = 198 feet) of the intersection at the point
in time when decedent accelerated and pulled out onto State Route
32 – again, well within the available sight distance.
                              -6-                  518859

it took decedent to accelerate into the intersection. At oral
argument, counsel for claimant noted that this three-second
interval only addresses the period of time that it took decedent
to accelerate into the intersection and does not factor in
whatever additional time may have elapsed between the point in
time that decedent last looked to his left and the moment that
his motorcycle began to move forward; such additional interval,
counsel asserted, arguably places Mayes' vehicle outside of the
available sight distance. The flaw in this analysis is that
decedent did not testify as to how many seconds actually elapsed
between the time that he last looked to his left and the moment
that he began to accelerate, nor did claimant's expert opine as
to how much time – on average – would elapse under these
circumstances, and it is not the function of this Court to
speculate as to this interval. Accordingly, based upon the
testimony adduced at trial, the credibility determination made by
the Court of Claims and the fact that decedent was obligated to
see that which was there to be seen (see Appollonia v Bonse, 92
AD3d 1170, 1171 [2012]; Ranaudo v Key, 83 AD3d 1315, 1316
[2011]), we cannot say that the Court of Claims erred in finding
in favor of defendant.

     Garry, J.P., Lynch and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
