McKenna v. State

• Decision Date: 12 August 1985
• Docket Number: No. 2,No. 1,1,2
• Citation: 492 N.Y.S.2d 805,112 A.D.2d 996
• Parties: In the Matter of Sally McKENNA, et al., Respondents, v. The STATE of New York, Appellant. (Claim). Michael McKENNA, etc., Respondent, v. The STATE of New York, Appellant. (Claim).
• Court: New York Supreme Court — Appellate Division

Page 805

492 N.Y.S.2d 805

112 A.D.2d 996

In the Matter of Sally McKENNA, et al., Respondents, v. The STATE of New York, Appellant. (Claim No. 1).

Michael McKENNA, etc., Respondent, v. The STATE of New York, Appellant. (Claim No. 2).

Supreme Court, Appellate Division,

Second Department.

Aug. 12, 1985.

Robert Abrams, Atty. Gen., Albany (Peter J. Dooley and Betsy Broder, Albany, of counsel), for appellant.

McCormack & Damiani, Bardonia (Gilbert E. McCormack and James H. Mellion, Bardonia, of counsel), for respondents in Claim No. 1.

Dupee, Madison & Hoover, Goshen (James R. McCarl, Goshen, of counsel), for respondents in Claim No. 1 on counterclaim.

Sichol & Hicks, P.C., Suffern (William R. Sichol, Jr., Suffern, on brief), for respondent in Claim No. 2.

Before THOMPSON, J.P., and NIEHOFF, LAWRENCE and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In claims to recover damages for personal injuries allegedly resulting from the negligent maintenance of an intersection, defendant State of New York appeals from (1) a judgment of the Court of Claims, dated February 28, 1984, which apportioned 40% of the liability to the State and 60% of the liability to nonparty Pietro Sama, and awarded claimants Sally McKenna and Eugene McKenna the principal sum of $276,118.70 and $20,000, respectively (Claim No. 1), and (2) a judgment of the same court, also dated February 28, 1984, which awarded claimant Michael McKenna, represented herein by his guardian ad litem Kathleen Ribaudo, the principal sum of $2,300,000 (Claim No. 2).

Judgments affirmed, with one bill of costs payable to respondents appearing separately and filing separate briefs.

The infant claimant and his mother were injured in a traffic accident. The collision occurred when the McKennas' car made a left turn from a local street onto Route 202. The intersection where the collision occurred was controlled by a stop sign maintained by the State. It is uncontested that two large trees, 18 and 24 inches wide, respectively, located on Route 202, obstructed the view of a driver attempting to enter that route from the local street. The obstruction clearly violated State standards. Upon a prior appeal from a dismissal of the claims, this court determined that, as a matter of law, the resulting inadequate sight distance to the left of the intersection was a contributing cause of the accident, and remitted the matter to the Court of Claims for an assessment of damages and an apportionment of liability (McKenna v. State of New York, 91 A.D.2d 1066, 458 N.Y.S.2d 675). At the trial on liability, claimants introduced portions of the deposition of the driver of the second car, Pietro Sama, which deposition was conducted in connection with a related Supreme Court case; Mr. Sama did not testify in the instant proceedings. Mr. Sama stated at his deposition that he was proceeding north on Route 202 at 30 miles per hour looking straight ahead, as he approached the subject intersection. He first saw claimants' car when it was in the middle of the road in front of him, and never saw where it came from. When he saw claimants' car, the distance to impact was 10 to 15 feet. Other testimony at trial established that both roads were straight and level, and both drivers were familiar with the intersection. Claimant Sally McKenna testified that, after stopping at the stop sign, she edged forward until she was at the edge of or slightly into the traveling surface of the northbound lane, but that her vision was still obstructed. She could remember nothing further; it was stipulated that she suffered from traumatic amnesia. Conflicting evidence as to the available sight distance was fairly resolved by the court by a finding that the sight distance was no more than 200 feet prior to entering the travelling surface of Route 202. There was uncontradicted testimony by claimants' expert witness that six to seven seconds were required to react to the sight...