Vahidi v. State, 2022-50354

CourtNew York Court of Claims
Writing for the CourtWALTER RIVERA, J.
PartiesLorenc Vahidi, Claimant, v. The State of New York, Defendant.
Docket NumberClaim 130922,2022-50354
Decision Date21 April 2022

Lorenc Vahidi, Claimant,
v.

The State of New York, Defendant.

No. 2022-50354

Claim No. 130922

Court of Claims

April 21, 2022


Unpublished Opinion

For Claimant: LEAV & STEINBERG, LLP (By: Ricardo J. Martinez, Esq.)

For Defendant: LETITIA JAMES, Attorney General of the State of New York (By: Heather R. Rubinstein, Assistant Attorney General)

WALTER RIVERA, J.

The trial of this claim on liability only was heard via videoconferencing technology on September 14, September 15 and October 4, 2021. [1] The claim alleges negligence and reckless disregard against the State of New York for physical injury and property damage arising from a collision between claimant's automobile and a snowplow truck [2] backing up on the Noxon Road exit ramp off of the Taconic State Parkway in the Town of LaGrange, Dutchess County. Claimant testified on his own behalf. Donna Cahill and Michael Anthony Viserto testified for defendant. Claimant's Exhibits 1-4 and defendant's Exhibits A and D-G were admitted on stipulation. Defendant's Exhibits B, C and I were admitted at trial. The virtual trial stipulation was admitted as Court Exhibit 1.

Before the first witness began to testify, claimant made an oral application for the Court to find that defendant waived application of the reckless disregard standard codified in Vehicle and Traffic Law (VTL) § 1104 (T: 7), [3] based on defendant's failure to plead it as an affirmative defense. Defendant opposed the application. The Court reserved decision on the application until the parties' submission of written arguments on the issue. For the reasons explained below, the Court now denies claimant's application.

Claimant's Case

Claimant Lorenc Vahidi testified to the following facts.

On February 12, 2017, claimant was driving his car North on the Taconic State Parkway (Taconic) with his ex-wife Rezarta as a passenger. Claimant turned off of the Taconic at the Noxon Road exit (T: 11-13). "As soon as" he entered the exit he stopped "because there was a big snow truck" (T: 14) with plows and flashing lights. The exit has one lane. Claimant believed it was raining (T: 12-15). Claimant was about three to four meters into the exit and the plow truck was about eleven meters in front of him in the middle of the exit road. The white line separating the exit from the Taconic was to his left. No part of his vehicle was in the white line. The plow truck was moving back and forth putting snow on the side. A white jeep stopped about three meters behind claimant. After claimant had been waiting for about five minutes, the plow truck started to move "in reverse" and claimant sounded his car horn. The plow truck kept moving and hit the front driver's side of claimant's car, then pushed it to the right and down the shoulder (T: 16-23). Claimant got out of his car and walked to the plow truck. He noticed that the driver sitting inside was wearing earplugs in his ears. He asked the driver, who was a young man, what he was doing. After the driver lowered the music, he said he was going to call the manager or the "superintendent" (T: 24).

Claimant or his ex-wife called 911 and the police arrived at the scene in about five minutes. They told the police what happened. The plow truck driver's supervisor also came to the scene. Claimant left after his car was picked up (T: 26-27). On cross-examination, after defense counsel asked if claimant recalled testifying at his deposition that he did not remember whether he put his car in park as he waited for the plow truck, claimant reiterated his belief that he had kept his foot on the brake (T: 31). Claimant also testified that his car was stopped when the plow truck collided with it (T: 37).

Claimant's Exhibits 1-4 are comprised of official reports regarding the accident. The accident description in the police report is as follows: "V1 was cleaning snow off of the ramp when operator V1 backed into V2 who was exiting the Taconic State Parkway." "V1" is identified as the plow truck and "V2" is identified as claimant's car. Claimant's passenger is identified as Rezarta Tabaku. The accident location is specified as the Noxon Road ramp off the Taconic in the Town of LaGrange, Dutchess County, and 1:50 p.m. is noted as the time of the accident. The plow truck driver's statement in the accident report for the New York State Department of Transportation (NYSDOT) (Ex. 2) states: "I was clearing snow from the bull nose of the Noxon rd ramp and when I went to make my way down the ramp the vehicle was struck." This report is signed by the plow truck operator Michael Viserto. The same statement is contained in the Report of Motor Vehicle Accident (MV-104) for the New York State Department of Motor Vehicles (Ex. 3) signed by Viserto.

Viserto's supervisor, Donna Cahill, prepared a NYSDOT Supervisor's Incident Analysis Report (Ex. 4). Cahill states in the report, "Trooper said woman was borderline rude," and "Operator can't be held responsible for the action of others. Yes, he was backing up. However, we need to do our job and the traveling public shows the operators no respect." Cahill, who was not an eyewitness to the incident, also gave a description of the accident that contained facts not related by Viserto in the other reports:

"Employee was clearing snow from the bull nose on the off ramp. Employee was backing up in the safe zone when a private vehicle came off the ramp right up behind the truck Operator never saw the car but felt a bump and heard a thud Operator stopped, put the truck in park and went to check what was behind him."

Claimant rested his case. Defendant made an oral motion for a missing witness charge, arguing that claimant's ex-wife [Rezarta Tabaku] was a witness to the collision and claimant had testified that he knows her whereabouts. Claimant opposed the motion, arguing that defendant did not establish claimant has any control over the witness, and the witness' testimony would be cumulative. The Court reserved decision on the motion (T: 37-38). For the reasons set forth below, the Court now denies defendant's request for a missing witness charge.

Defendant also moved to dismiss the claim for failure to prove a prima facie case of reckless disregard by the State. Claimant opposed the motion, arguing that under the emergency use doctrine, it is defendant's burden to show that the driver was operating an emergency vehicle. The Court reserved decision on the motion (T: 38-39).

Defendant's Case

Donna Cahill testified to the following facts. [4]

Prior to her retirement in 2019, Cahill had been working for NYSDOT as a Highway Maintenance Supervisor 2 since 2006. She remembered being called on February 12, 2017, to report to the Noxon Road exit regarding an accident involving a plow truck driven by Michael Viserto. The roads were covered with snow. By the time Cahill arrived, claimant's car had been removed, the police officer was there, and the accident report was already filled out. She recognized her signature on the supervisor's investigation report (Exs. 4 and E), which is a document that is filled out based on what the driver has reported. Cahill had no concerns with how Viserto was clearing snow from the ramp. The ramp is narrow and the plow truck is big. Drivers are told to remain in the vehicle if the roads are bad and it is snowing (T: 67-69, 78-81).

On cross-examination, Cahill testified that drivers are "supposed to be able to hear and be aware of their surroundings" (T: 84). She denied that drivers wear earplugs to block out noise (id.).

Michael Anthony Viserto testified to the following facts.

Viserto has worked for NYSDOT as a Highway Supervisor I for about nineteen months. He started working for NYSDOT as a Highway Maintenance Worker I on September 28, 2015. Plowing was one of his responsibilities. He received training for driving large vehicles (T: 42-46, 48). As of February 12, 2017, he had his "large dump" and "One Person Plowing" certifications through NYSDOT (T: 47). For plowing, he drove a large dump truck with a front plow and two side plows. Prior to February 12, 2017, he did not receive specific instructions as to how to clear snow off of the Noxon Road exit (T: 51-52). "When it was possible, [he] would make one full push forward with [his] front plow and [his] right wing down, and after making sure there was nobody behind [him], [he] would back up" (T: 53). It is impossible to clear all the snow without backing up (T: 55).

Viserto identified a satellite image (see defendant's Ex. A) as depicting the Noxon Road exit. He described the "bullnose" as a "solid concrete island" "at the very northern part of" the "safe zone in between the travel lanes on the Taconic Parkway and the [Noxon] exit ramp" (T: 55-56). The Court admitted a copy of this satellite image of the Noxon Road exit, marked by Viserto to identify locations referred to in his testimony, as defendant's Exhibit I (T: 88-89). Viserto testified that he used an "A" on Exhibit I to show the location of the bullnose, a "C" to show the location where the collision occurred, and a "B" to show where he would push the snow down the ramp. He described the collision as taking place in the "safe zone," represented by hash marks on Exhibit I, where his forty foot plow truck was located (T: 94-96). He explained that the plow truck's maximum speed in reverse is "walking speed, about 3 miles per hour" (T: 96). NYSDOT's policy for putting a...

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