Preview
FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
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SUZANNE SCHULMAN, AS ADMINISTRATRIX OF THE
ESTATE OF BRITTNEY M. SCHULMAN, DECEASED, Index No. 611214/15
ALICIA M. ARUNDEL; OLGA LIPETS; MINDY GRAB INA, AS
ADMINISTRATRIX OF THE ESTATE OF AMY GRABINA, AFFIRMATION IN
AND MINDY GRABINA, INDIVIDUALLY; STEVEN BARUCH, SUPPORT
AS ADMINISTRATOR OF THE ESTATE OF LAUREN BARUCH,
DECEASED AND STEVEN BARUCH, INDIVIDUALLY; JOELLE
DIMONTE; MELISSA A. CRAI AND ARTHUR A. BELLI JR., AS
PARENT AND NATURAL GUARDIAN OF STEPHANIE BELLI,
DECEASED, AND AS THE ADMINISTRATOR OF THE ESTATE
OF STEPHANIE BELLI,
Plaintiffs,
-against-
ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO,
ROMEO DIMON MARINE SERVICE, INC., STEVEN
ROMEO, TOWN OF SOUTHOLD AND COUNTY OF
SUFFOLK, CABOT COACH BUILDERS, INC., d/b/a
ROYALE LIMOUSINE and "XYZ COMPANIES 1-5"
name being fictitious but intended to be the remanufacturers,
distributors and/or sellers of the 2007 Lincoln Town Car
stretch limousine involved in the collision,
Defendants.
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JOSHUA S. SHTEIERMAN, an attorney at law duly admitted to practice before the Courts
of the State of New York, under the penalties of perjury, hereby affirms that:
1. I am with the firm of VOLZ & VIGLIOTTA, PLLC, attorneys for defendant
TOWN OF SOUTHOLD (hereinafter "TOWN"), I am fully familiar with the pleadings and
proceedings heretofore had herein.
2. I submit this affirmation in support ofthe Town's motion for an Order, pursuant to
CPLR 3212, granting summary judgment in its favor and dismissal of all cross claims against it,
along with for such other relief as to this Court may seem just and proper.
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3. The TOWN relies on the following exhibits in support of its motion:
EXHIBITS
A. New York State Police Collision Reconstruction Report, dated July 23, 2015;
B. NYS MV -104;
C. EBT Transcript of Cad os F. Pino, dated June 18,2019;
D. Special Grand Jury Report, dated September 20,2016;
E. Suffolk County Response to Notice to Admit, dated November 4,2016;
F. Original Summons and Complaint, annexed collectively;
G. Amended Complaints, annexed collectively;
H. Answers to Amended Complaints annexed collectively;
1. Consolidation Order, dated October 7,2016;
1. Note ofIssue, filed May 11,2022;
K. NYSDMV Findings and Disposition, dated April 10, 2018;
L. County Road System Report;
M. EBT Transcript of Daniel J. Dresch, Jr., dated July 17,2019;
N. EBT Transcript of Chief Martin Flatley, dated July 9, 2019;
O. Town of Southold Resolution, dated July 22, 1997;
P. Bartha letter, dated August 6, 1997;
Q. Resolution, dated December 21, 1999;
R. Neville Correspondence, dated December 30, 1999;
S. Neville Correspondence, dated January 13,2000;
T. Shannon Correspondence, dated February 2, 2000;
U. Petersen Correspondence, dated June 23, 2001;
V. Yannios letter, dated August 22,2002;
W. Shannon Correspondence, dated September 9,2002;
X. EBT Transcript of Robert F. Hillman, Jr., dated December 4,2020;
Y. SCDPW Updated Study Memorandum, revised February 5, 2014;
Z. Scott Russell Interrogatory Responses, dated March 12,2021;
AA. EBT Transcript of Albert Julius Krupski, Jr., dated February 18, 2022;
BB. Vineyard 48 Special Event Permit Application;
CC. Plaintiffs' Verified Bill of Particulars, annexed collectively; and
DD. Court Email, dated April 27, 2022
FACTS
The SUbject Crash
4. At approximately 5:11 p.m. on July 18,2015, a 2007 Lincoln limousine owned by
defendant Ultimate Class Limousine Inc. ("Ultimate") and operated by its employee Carlos Pino
("Pino") was traveling eastbound on Suffolk County Route 48 ("CR 48"), (See New York State
Police Collision Reconstruction Report, dated July 23, 2015 attached hereto as Exhibit "A"; NYS
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MV-104, annexed hereto as Exhibit "B"; EBT Transcript of Carlos Pino, dated June 18,2019,
annexed hereto as Exhibit "C", p. 17 :6-1 0), having departed from Vineyard 48, a vineyard on the
south side of the eastbound traffic lanes of CR 48 just west of the intersection with Depot Lane.
(See Special Grand Jury Report, dated September 10, 2016, annexed hereto as Exhibit "D", p. 4-
5).
5. CR 48 is a road owned, operated and maintained by defendant, County of Suffolk
(See County of Suffolk Response to Notice to Admit, annexed hereto as Exhibit "E"). Depot Lane
is a Town road (Exhibit "D", p. 25). At no time on the date ofthe accident did either vehicle travel
on the Town Road, Depot Lane; all of the vehicle movements leading up to and at the time of the
crash were being operated on the County Road, CR 48 (Exhibit "C, p.l20:7-8; Exhibit "D", p.5-
6). U-turns that could be legally accomplished as set forth in New York State Vehicle and Traffic
Law § 1160(e) were permitted at the intersection at the time of the subject accident.! (Exhibit "D",
p.26).
6. Inside the limousine were 8 passengers, the plaintiffs and plaintiffs' decedents
(collectively "plaintiffs") herein, who had contracted with Ultimate to transport themselves to
several vineyards, including Vineyard 48. (See Amended Complaints, collective annexed hereto
as Exhibit "F"; Exhibit "C", p.98:25, 99:2). Pino had earlier brought the plaintiffs to the Vineyard
and parked the limousine, waiting for them to complete their visit (Exhibit "C", p. 94: 12-13; 95:7-
10, 13-15). After plaintiffs advised Pino they were ready to leave, he brought the car to them and
they got inside. Pino then exited the Vineyard to head eastbound on CR 48. (Exhibit "C", p.83 :20-
23).
1 Effective February, 2021, "stretch" limousines such as the subject limousine were no longer permitted to make U-
turns on any public highway in the State. See, VTL §1161(c).
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7. At or about this time defendant Steven Romeo ("Romeo") was traveling westbound
on CR 48 in a 2005 Dodge Dakota approaching the intersection of CR 48 and Depot Lane
("subject intersection"). (Exhibit "A").
8. As Pino approached the subject intersection, he moved the limousine into the left
lane of the eastbound side ofCR 48, intending to make a U-turn to travel westbound on CR 48.
(Exhibit "C", p. 111:11-25; 117:17-19). He stopped the limousine at the intersection, at which
both east and westbound traffic on CR 48 was governed by a blinking yellow light (Exhibit "C",
p.107:5-19). While stopped at the subject intersection, Pino claims that he observed the traffic in
both directions. (Exhibit "C", p.l17:22-24). A Jeep Liberty was positioned in the left turn lane of
westbound CR 48, waiting to turn south onto Depot Lane (Exhibit "C", p.116:23; 117:2; Exhibit
"D", p. 5). Pino testified that this vehicle could have interfered with his view of the westbound
traffic. (Exhibit "A"; Exhibit "C", p.343: 13-20).
9. Pino testified that he looked to his right and did not see any traffic, other than the
dark vehicle in the left turn lane of westbound CR 48. (Exhibit "C", p.l19:12-23). Pino started
his left turn, but was not able to start a U-turn before the limousine he was operating was struck
by Romeo's truck which was traveling in the left westbound travel lane ofCR 48. (Exhibit "A";
Exhibit "C", p. 120:7-8).
10. As a result of the crash, four of the plaintiffs sustained injuries, and four were killed.
Procedural History
11. Following the crash, each of the plaintiffs separately filed suit against Ultimate
Class Limousine, Carlos Pino, Romeo Dimon Marine Service, Inc., Steven Romeo, the County
of Suffolk and the Town of Southold (collectively referred to as "defendants") as a result of the
crash (hereinafter "subject accident"). (See Original Summonses and Complaints, annexed hereto
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as Exhibit "G"). Between March and October of 2017, the Complaints were amended to add
Cabot Coach Builder, Inc d/b/a Royal Limousine as a defendant. (See Amended Complaints,
collectively annexed hereto as Exhibit "F"). Answers to the Amended Complaints were submitted
by all defendants respectively, and such are collectively annexed hereto as Exhibit "H").
12. On October 7, 2016, the Honorable John H. Rouse issued an Order consolidating
all matters under Index No. 611214/2015 and with the amended caption used herein. (See
Consolidation Order, dated October 7, 2016, annexed hereto as Exhibit "I"). Following the
consolidation, discovery ensued, including depositions of all parties and several nonparties.
13. On May 11,2022, the plaintiffs filed a Note of Issue and Certificate of Readiness.
(See Note of Issue, filed May 11, 2022, annexed hereto as Exhibit "I"). This motion is made
within 120 days of such filing and is, therefore, timely.
Accident Reconstruction and DMV Hearing
14. Following the accident, the New York State Police ("NYSP") conducted a collision
reconstruction of the subject accident. The NYSP concluded that, due to the size of the limousine
Pino was operating, completing a legal U-turn at the subject intersection would have been
impossible, as § 1I60(e) of the Vehicle and Traffic Law ("VTL") requires such turns to be made
only from the lane so designated that is adjacent to the marked center line. (Exhibit "A"). The
Report concluded that the primary causative factors in the subject accident was Pino's failure to
yield the right of way and improper turn/lane usage. (Exhibit "A").
15. Following the subject accident, the New York State Department of Motor Vehicles,
Division of Safety and Business, conducted a hearing pursuant to §51 0(3) of the New York State
VTL to detel111ine if any actions should be taken as against the driver licenses of both Pino and
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Romeo. (See NYSDMV Findings and Disposition, dated April 10,2018, annexed hereto as Exhibit
"K").
16. At the conclusion of the Hearing, DMV Administrative Law Judge Schall held that
defendant Pino operated his motor vehicle in violation of several sections of the VTL: VTL § 1128
(failing to safely maintain a single lane of travel), VTL § 1163(a) (attempting to make an improper
U-Turn), and VTL §I142(a) (failing to yield the right of way). (Exhibit "K").
17. ALJ Schall held that both defendant Pino and defendant Romeo violated VTL
§ 1113 (b) in that both proceeded through an intersection with a rapid intermittent yellow flashing
signal or indicator and failed to exercise the necessary and requisite caution in so doing. (Exhibit
"K"). In revoking both defendant Pino and defendant Romeo's licenses, ALJ Schall stated:
This was not. as it is sometimes referred to, just an unavoidable
accident. The collision that occurred and the death that resulted
did not have to happen and, but/or the actions in violation of the
Vehicle and Traffic Law of the respondent motorists, would not
have. The misconduct of the two drivers was the direct and
consequential cause-in-fact of the collision and the horrific loss
of life that resulted. (Exhibit "K")( emphasis added).
18. Notably, the actions of Pino were not only a violation of law, but they were also
contrary to the training manual he was provided by his employer, Ultimate Class Limousine, which
expressly prohibited chauffeurs from making U-turns, stating "NEVER ... Make a 'U' tum in a
limousine." (Exhibit "D").
OwnershiplMaintenance of CR 48
19. As indicated previously, it is undisputed that CR 48 is owned and maintained by
defendant Suffolk County ("County") and was made part of the County Road System on January
27, 1930. (Exhibit "E"; County Road System Report, annexed hereto as Exhibit "L"; EBT
Transcript of Daniel Dresch, dated July 17,2019, annexed hereto as Exhibit "M", p. 1-2:14-19;
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EBT Transcript of Chief Martin Flatley, dated July 9, 2019, annexed hereto as Exhibit "N", p.
11:6-11).
20. It is also undisputed that the County of Suffolk managed, supervised and/or
controlled CR 48 and more specifically, the subject intersection at the time ofthe subject accident.
(Exhibit "E", ~4, ~6), and that the County of Suffolk made reasoned and discretionary
determinations regarding the placement of traffic signage both on CR 48 and Depot Road. (Exhibit
"E", ~18-~24).
21. Finally, it is undisputed that the Suffolk County Department of Public Works
("SCDPW"), and not the Town of Southold, oversees traffic safety on County highways, even
when such highways run through towns. (Exhibit "M", p. 12:16).
Town Request for Traffic Studies and Resident Concerns
22. Since CR 48 is a County Road and the County is solely responsible for the traffic
light and signage on that road, on July 22, 1997, the Town Board of the Town of Southold passed
a resolution requesting the SCDPW to conduct a traffic study at the intersection of CR 48 and
Depot Lane for the purpose of changing the caution light at that intersection to a traffic light. (See
Resolution, dated July 22, 1997, annexed hereto as Exhibit "0").
23. On August 6, 1997, the Acting Commissioner of the SCDPW responded to the
Town request by acknowledging receipt and advising it would conduct a traffic engineering study
but that due to the number of request for traffic studies, there will be some delay in completing the
study. (See Bartha letter, dated August 6, 1997, annexed hereto as Exhibit "P").
24. Again, on December 21, 1999, the Town Board ofthe Town of Southold passed a
resolution requesting the SCDPW conduct a traffic study at the intersection of CR 48 and Depot
Lane for the purpose of installing a traffic light. (See Resolution, dated December 21, 1999,
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annexed hereto as Exhibit "Q"). The resolution was forwarded by the Town Clerk to Richard
LaValle the Chief Engineer of the County of Suffolk on December 30, 1999. (See Neville
Correspondence, dated December 30, 1999, annexed hereto as Exhibit "R").
25. Additionally, on January 13,2000, the Town Clerk forwarded a letter written by
Town of Southold resident, Bernadette Petersen to Mr. LaValle and requested that it be included
in her request for a traffic study sent on December 30, 1999. (See Neville Correspondence, dated
January 13, 2000, annexed hereto as Exhibit "S"). The letter reiterates request for the change of
the traffic control device at the subject intersection (Exhibit "S").
26. On February 2, 2000, the Acting Chief Engineer of the SCDPW acknowledged
receipt of the Town's 1999 request and once again advised that while it will conduct a traffic
engineering study, due to the number of requests for traffic studies the County receives, there will
be some delay in completing the study. (See Shannon Correspondence, dated February 2, 2000,
annexed hereto as Exhibit "T").
27. On June 26, 2001, the SCDPW received correspondence directly from Ms. Petersen
which spoke of the need to address the amount of traffic and the speed of the vehicles traveling on
CR 48 which made it difficult for bicyclist to cross from the north side of CR 48 to the south side.
(See Petersen Correspondence, dated June 23, 2001, annexed hereto as Exhibit "U").
28. On August 23, 2002, the SCDPW received correspondence from another Town
resident, Nicholas C. Yannios, who expressed his concern over the increased difficult to safely
cross CR 48 due to the increased population and volume of cars in the area. (See Yannios letter,
dated August 22, 2022, annexed hereto as Exhibit "V").
29. The Chief Engineer of the SCDPW responded to Mr. Yannios on September 9,
2002 acknowledging receipt of his letter and advising that the County had already initiated a traffic
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study at the subject intersection. (See Shannon Correspondence, dated September 9,2002, annexed
hereto as Exhibit .oW").
Suffolk County s Handling of Traffic Study Requests
30. The County receives approximately 300 to 400 requests for traffic studies in an
average year. (Exhibit "M", p. 21 :4-5). Typically, the requests include the basis for the request,
but SCDPW also receives requests that do not include such detail. (Exhibit .oM", p. 21: 6-11; p.
21 :25; p. 22 :2-6). Notably, regardless of whether a request contains the basis for making such a
request, the County initiates the requested traffic study. (Exhibit .oM", p. 23:2-9).
31. Upon receipt of a request, the County DPW would send an acknowledgement letter
to the requestor thanking them and advising that the County would be initiating a traffic study.
(Exhibit .oM", p. 29:13-14; 22-24).
32. Next, a particular engineer staff member would be assigned the file and a traffic
study would be initiated. The engineer would use their judgment, expertise and knowledge of the
location being studied to determine what studies were necessary. (Exhibit "M", p. 31, p. 8-11).
33. The engineer staff member also determines what data collection would be necessary
for the necessary studies. (Exhibit "M", p. 30:4-5; 6-7, 15-16).
34. The main data collected for traffic studies are twenty-four hour traffic counts,
turning movement counts and crash history. (Exhibit "M", p. 37:3-18). Once the data has been
collected, the County conducts specific traffic studies where the data is analyzed. Those traffic
studies include stop sign warrant analysis, traffic signal warrant analysis and left-tum phase
analysis. (Exhibit "M", p. 58:14-22)
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35. In conducting a traffic signal warrant analysis, the primary data reviewed is traffic
volume, both on the main road and on the side street, as well as the crash history of the area being
studied. (Exhibit "M", p. 64:5-20).
36. When determining whether to do a left turn phase analysis, the County would first
determine the appropriateness of a traffic signal. If a traffic signal is warranted the County would
then review crash history to see if the crashes involved a particular left-turning movement. In
doing so, the County would also examine turning movement counts to determine if a left phase
would be warranted. (Exhibit "M", p. 73: 8-17).
37. Crash data is crucial in traffic studies as it is the most effective way to implement
improvements because it helps show trends that need to be addressed. (Exhibit "M", p.79:5-10).
In contrast, the location of commercial establishments at or near the intersection being studied are
not considered, nor is the size and length of the vehicle or the amount of time it takes for the vehicle
to complete its turn. (Exhibit "M", p. 77:19-20; 88: 17-25; 89:2-6). Moreover, the County does not
rely on local police to share data regarding tickets and citations when conducting a traffic study.
(Exhibit "M", p. 78:6-7).
38. U-turns, according to Dresch, are counted as left-turning movements when turning
count surveys are done, and thus, the County does not distinguish between left turns and U-turns.
(Exhibit "M", p. 87:2-10). K-turns or multipoint U-turns would also be counted as left turns.
(Exhibit "M", p. 90: 21-25; p. 91:20-23). Critically, for the purposes of traffic studies, a U-turn
movement is functionally the same as a left turn movement, in that both are movements in front
ofthe right-of-way of an oncoming vehicle. (Exhibit "M", p. 88: 14-16). Indeed, Pino testified that
he was making a left turn at the time of impact and had not yet begun any U-turn movements
(Exhibit "C", p.120:7-8).
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County's Studies of the Subject Intersection
39. From the date of the County's receipt of the Town's request for a traffic study in
2000 through 2014, albeit not consistently, the SCDPW was conducting traffic studies of the
subject intersection. (Exhibit "M", p. 133:13-14). Initially, in the early 2000's the County
conducted volume data and crash history ofthe subject intersection for the purpose of determining
whether an upgrade to the existing flashing signal to a three-color signal was warranted. (Exhibit
"M", p. 137:23-25; 138:4-7).
40. The request remained open until 2009, at which time, SCDPW traffic engineer
Robert Hillman was assigned to the file and recommended to acting chief engineer, Daniel Dresch
that the file be closed. (See EBT Transcript of Robert F. Hillman, Jr., dated December 4, 2020,
annexed hereto as Exhibit "X", p. 46:6-12). At that time, Mr. Dresch requested that before closing
the file updated data collection should be completed and the data analyzed. (Exhibit "M", p.
144:15-20). The bulk of that data collection occurred in 2012,2013 and 2014. (Exhibit "M", p.
144: 15-20).
41. Specifically, updated accident history from August 31, 2009 through August 31,
2012 was compiled. (See SCDPW Updated Study Memorandum, revised February 5, 2014,
annexed hereto as Exhibit "Y"). Additionally, with respect to the subject intersection, on May 23,
2012, the County conducted a turning movement count; on April 5, 2012, it conducted a spot speed
study; in August of2012 and July, 2013 it conducted various 24 hour, 7 day traffic volume counts
both north and south of the subject intersection; on April 12, 2012, intersection sight distance was
reviewed; and in August 2012, traffic signal analyses was conducted to consider the effects of right
turn vehicles at the subject intersection. (Exhibit "Y"; Exhibit "M", pp. 241-242). The County did
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not seek any new or updated information from the Town when conducting these studies. (Exhibit
"X", p. 53:8-16).
42. Ultimately, on February 5, 2014, the County made the decision to install a three-
color traffic signal at the subject intersection. (Exhibit "M", p. 153:20-24) (Exhibit "M". p. 156:5-
9). Critically, the Town of Southold had no involvement in the design of the traffic light for the
County Road, just as it had no involvement in the installation of the traffic control device at the
subject intersection prior to the subject accident. (Exhibit "M", p. 158:9-12).
U-Turns
43. The plaintiffs' devote much attention to U-turns made from the east and westbound
lanes of CR 48 in the claims they have interposed herein. However, the County, as owner and the
entity responsible for maintenance of that road, did not recommend that the Town install any
regulatory signage on CR48 before the subject accident. (Exhibit .oM", p. 107:9-14).
44. The Town had no duty to install a no U-turn sign on a County road, though it had
certain statutory and discretionary powers concerning roads within the Town. The Town did not,
at common law or pursuant to any statute, have a legal duty to install any such signage governing
the traffic movements within the intersection. Moreover, it would be highly unusual for the Town
to employ signage without a recommendation from the County. In fact, the acting assistant Chief
Engineer ofthe SCDPW testified that in his thirty (30) years of experience, he is unaware of any
Town in Suffolk County that installed traffic control signage on a County Road without the
County's recommendation. (Exhibit "M", p. 212:17-22; 213:17-20). It is uncontroverted that the
County made no such recommendation here.
45. Moreover, based on accident data collected by the County, there was nothing to
suggest U-turn prohibition was required, or would even be appropriate, at the subject intersection,
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as the intersection reflected fewer accidents than any other intersection along CR 48. 2 (Exhibit
"M", p. 188:8-14). In fact, the Grand Jury Report referenced the danger of unintended
consequences of prohibiting V-turns at the subject intersection as it could cause motorist to make
V-turns at more dangerous locations without traffic signals at all. (Exhibit "D", p. 64). The Grand
Jury also indicated that V-turns benefited residents in several ways as it permitted easier access to
their homes and businesses (Exhibit "D", p. 65-66).
Vineyard 48
46. As indicated previously, Vineyard 48 is located west of the subject intersection.
The Town had received complaints regarding Vineyard 48 and the behavior of its owners and
patrons during board meetings, at some of which representatives from the County were present.
(See Russell Interrogatory Responses, dated March 12,2021, annexed hereto as Exhibit "Z").
4 7. The complaints about Vineyard 48 principally concerned the noise level of events
held there, the behavior of patrons, the congestion caused by limos parking on both sides of the
road and the dangers posed by discharging passengers along both sides of CR 48. (See EBT
Transcript of Albert Julius Krupski, Jr., annexed hereto as Exhibit "AA", p.21 :9-15).
48. While residents expressed some concerns regarding V-Turns, most concerned
vehicles making V-turns at cut-throughs along CR48 across the grass median and were not specific
to the subject intersection. (Exhibit "AA", p.43: 12-21; 50:3-9). Discussions at Town Board Meetings
regarding Vineyard 48 and CR 48 involved the safety of the entire road, and specifically those
portions of the road closer to Vineyard 48. (Exhibit "AA", p.43:12-21).
2 Although not relevant to the subject accident, after the accident but before installation of traffic control device, the
County specifically collected U-turn data from the subject intersection and such data had no impact on the ultimate
action of installing a three light traffic control device with no left tum signal, as such data would have originally been
collected as part of left-tum phase analysis. (Exhibit "M", p. 169:3-12)
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49. The Town attempted to address the concerns about the Vineyard that were within
its jurisdictional powers. For example, in 2011, the owners of Vineyard 48 sought a "winery event
permit" for dances it planned to hold on November 12, 2011 and November 13, 2011. (Exhibit
"D", p. 38). In response, the Southold Town Zoning Board of Appeals required that Vineyard 48
provide to limousine and bus drivers transporting attendees to the event a printed traffic route that
prohibited U-turns on CR 48, as well as a requirement that the Vineyard have a security person on
site to provide surveillance and supervision of traffic. (Exhibit "D", p. 381; Special Event Permit,
annexed hereto as Exhibit "BB"). Notably, the directive was made to the proprietors of the
Vineyard, as was within the Town's zoning authority. Moreover, the Town Police increased police
monitoring of the site and sought input from the County of Suffolk as to how best to address traffic
issues caused by the Vineyard along CR 48. (Exhibit "Z").
50. In 2012, the Town also sought permission from the County of Suffolk to implement
parking and standing restrictions along CR 48 in light of the popularity of Vineyard 48. (Exhibit
"D", p. 41). Ultimately, the County of Suffolk granted permission for the Town to install "no
parking/standing" signs along CR 48. (Exhibit "D", p.41; Exhibit "M", p. 108:5-20, 25). This
recommendation followed a site visit of Vineyard 48 and the surrounding area by representatives
of the SCDPW in response to communications from the Town about the conditions that existed
therein. (Exhibit "M", p. 109:4-6, 11-18, p.110:21-24; 112:21-24).
51. Again, the County made no recommendations to the Town with respect to the
prohibition of U-turns along CR 48 or at its intersection with Depot Road. (Exhibit "M", p. 107:9-
14).
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Legal Claim and Defenses
52. The plaintiffs commonly allege that the defendant Town was negligent in the
ownership, operation, maintenance and control of the County Road and Depot Lane at or about
the intersection of those roads, and particularly concerning the traffic controls, or lack thereof, at
the accident site. (See Verified Bill of Particulars, collectively annexed hereto as Exhibit "CC").
53. The attached memorandum oflaw addresses the TOWN's legal arguments in detail.
In sum, CR 48 is a County Road, and the Town has no legal duty over a roadway that it does not
own, control or maintain. The traffic control governing traffic on the County Road was provided
by the County of Suffolk, over which the Town never assumed control. The subject intersection is
owned and maintained by the County of Suffolk which is exclusively responsible for itsdesign
and maintenance.
54. Moreover, the Town would be entitled to judgment as a matter of law even if it had
a legal duty regarding the County road (which it does not) because the absence of a no U-turn sign
at the intersection was not, as a matter of law, a proximate cause of this crash. Rather, it was the
action of Pino in failing to yield the right of way to westbound traffic on CR 48, as determined by
the NYS Police and the DMV Administrative Law Judge, that was the sole proximate cause of the
accident.
55. Finally, in the interests of judicial economy, the TOWN OF SOUTHOLD fully
adopts and incorporates by reference the legal and factual arguments set forth in Cabot's
supporting papers as well as the Exhibits offered in support of Cabot's motion electronically filed
as docket entries 948-1002 that seek dismissal of the claims for "pre-impact terror made on behalf
of each of the four decedents on the ground that there was no recognition of any pending impact
prior to the accident, and dismissing the claims for conscious pain and suffering and fear of
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impending death made on behalf of the four decedents on the grounds that the decedents were not
conscious for any period of time after the accident and had no cognitive awareness of pain and
suffering. "
Word Count
56. This Honorable Court, in an email dated April 27, 2022 (Exhibit "DD"), suspended
Rule 202.8-b's restriction on the length of motions in light of the number of litigants, number of
claims, and complexity of some of the issues. As such, word count certifications are not present
on the documents submitted herewith.
WHEREFORE, Defendant TOWN OF SOUTHOLD requests that this Court grant the
instant motion and dismiss plaintiffs Complaint in its entirety, with prejudice, together with such
other and further relief as this Court deems just, equitable, and proper.
Dated: Nesconset, New York
September 6,2022
a S. Shteierman, Esq.
LZ & VIGLIOTTA, PLLC
Attorneys for Defendant
TOWN OF SOUTHOLD
280 Smithtown Blvd.
Nesconset, NY 11767
(631) 366-2700
Preview
FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK -------------------------------------------------------------------X SUZANNE SCHULMAN, AS ADMINISTRATRIX OF THE ESTATE OF BRITTNEY M. SCHULMAN, DECEASED, Index No. 611214/15 ALICIA M. ARUNDEL; OLGA LIPETS; MINDY GRAB INA, AS ADMINISTRATRIX OF THE ESTATE OF AMY GRABINA, AFFIRMATION IN AND MINDY GRABINA, INDIVIDUALLY; STEVEN BARUCH, SUPPORT AS ADMINISTRATOR OF THE ESTATE OF LAUREN BARUCH, DECEASED AND STEVEN BARUCH, INDIVIDUALLY; JOELLE DIMONTE; MELISSA A. CRAI AND ARTHUR A. BELLI JR., AS PARENT AND NATURAL GUARDIAN OF STEPHANIE BELLI, DECEASED, AND AS THE ADMINISTRATOR OF THE ESTATE OF STEPHANIE BELLI, Plaintiffs, -against- ULTIMATE CLASS LIMOUSINE, INC., CARLOS PINO, ROMEO DIMON MARINE SERVICE, INC., STEVEN ROMEO, TOWN OF SOUTHOLD AND COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC., d/b/a ROYALE LIMOUSINE and "XYZ COMPANIES 1-5" name being fictitious but intended to be the remanufacturers, distributors and/or sellers of the 2007 Lincoln Town Car stretch limousine involved in the collision, Defendants. ---------------------------------------------------------------------X JOSHUA S. SHTEIERMAN, an attorney at law duly admitted to practice before the Courts of the State of New York, under the penalties of perjury, hereby affirms that: 1. I am with the firm of VOLZ & VIGLIOTTA, PLLC, attorneys for defendant TOWN OF SOUTHOLD (hereinafter "TOWN"), I am fully familiar with the pleadings and proceedings heretofore had herein. 2. I submit this affirmation in support ofthe Town's motion for an Order, pursuant to CPLR 3212, granting summary judgment in its favor and dismissal of all cross claims against it, along with for such other relief as to this Court may seem just and proper. 1 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 3. The TOWN relies on the following exhibits in support of its motion: EXHIBITS A. New York State Police Collision Reconstruction Report, dated July 23, 2015; B. NYS MV -104; C. EBT Transcript of Cad os F. Pino, dated June 18,2019; D. Special Grand Jury Report, dated September 20,2016; E. Suffolk County Response to Notice to Admit, dated November 4,2016; F. Original Summons and Complaint, annexed collectively; G. Amended Complaints, annexed collectively; H. Answers to Amended Complaints annexed collectively; 1. Consolidation Order, dated October 7,2016; 1. Note ofIssue, filed May 11,2022; K. NYSDMV Findings and Disposition, dated April 10, 2018; L. County Road System Report; M. EBT Transcript of Daniel J. Dresch, Jr., dated July 17,2019; N. EBT Transcript of Chief Martin Flatley, dated July 9, 2019; O. Town of Southold Resolution, dated July 22, 1997; P. Bartha letter, dated August 6, 1997; Q. Resolution, dated December 21, 1999; R. Neville Correspondence, dated December 30, 1999; S. Neville Correspondence, dated January 13,2000; T. Shannon Correspondence, dated February 2, 2000; U. Petersen Correspondence, dated June 23, 2001; V. Yannios letter, dated August 22,2002; W. Shannon Correspondence, dated September 9,2002; X. EBT Transcript of Robert F. Hillman, Jr., dated December 4,2020; Y. SCDPW Updated Study Memorandum, revised February 5, 2014; Z. Scott Russell Interrogatory Responses, dated March 12,2021; AA. EBT Transcript of Albert Julius Krupski, Jr., dated February 18, 2022; BB. Vineyard 48 Special Event Permit Application; CC. Plaintiffs' Verified Bill of Particulars, annexed collectively; and DD. Court Email, dated April 27, 2022 FACTS The SUbject Crash 4. At approximately 5:11 p.m. on July 18,2015, a 2007 Lincoln limousine owned by defendant Ultimate Class Limousine Inc. ("Ultimate") and operated by its employee Carlos Pino ("Pino") was traveling eastbound on Suffolk County Route 48 ("CR 48"), (See New York State Police Collision Reconstruction Report, dated July 23, 2015 attached hereto as Exhibit "A"; NYS 2 2 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 MV-104, annexed hereto as Exhibit "B"; EBT Transcript of Carlos Pino, dated June 18,2019, annexed hereto as Exhibit "C", p. 17 :6-1 0), having departed from Vineyard 48, a vineyard on the south side of the eastbound traffic lanes of CR 48 just west of the intersection with Depot Lane. (See Special Grand Jury Report, dated September 10, 2016, annexed hereto as Exhibit "D", p. 4- 5). 5. CR 48 is a road owned, operated and maintained by defendant, County of Suffolk (See County of Suffolk Response to Notice to Admit, annexed hereto as Exhibit "E"). Depot Lane is a Town road (Exhibit "D", p. 25). At no time on the date ofthe accident did either vehicle travel on the Town Road, Depot Lane; all of the vehicle movements leading up to and at the time of the crash were being operated on the County Road, CR 48 (Exhibit "C, p.l20:7-8; Exhibit "D", p.5- 6). U-turns that could be legally accomplished as set forth in New York State Vehicle and Traffic Law § 1160(e) were permitted at the intersection at the time of the subject accident.! (Exhibit "D", p.26). 6. Inside the limousine were 8 passengers, the plaintiffs and plaintiffs' decedents (collectively "plaintiffs") herein, who had contracted with Ultimate to transport themselves to several vineyards, including Vineyard 48. (See Amended Complaints, collective annexed hereto as Exhibit "F"; Exhibit "C", p.98:25, 99:2). Pino had earlier brought the plaintiffs to the Vineyard and parked the limousine, waiting for them to complete their visit (Exhibit "C", p. 94: 12-13; 95:7- 10, 13-15). After plaintiffs advised Pino they were ready to leave, he brought the car to them and they got inside. Pino then exited the Vineyard to head eastbound on CR 48. (Exhibit "C", p.83 :20- 23). 1 Effective February, 2021, "stretch" limousines such as the subject limousine were no longer permitted to make U- turns on any public highway in the State. See, VTL §1161(c). 3 3 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 7. At or about this time defendant Steven Romeo ("Romeo") was traveling westbound on CR 48 in a 2005 Dodge Dakota approaching the intersection of CR 48 and Depot Lane ("subject intersection"). (Exhibit "A"). 8. As Pino approached the subject intersection, he moved the limousine into the left lane of the eastbound side ofCR 48, intending to make a U-turn to travel westbound on CR 48. (Exhibit "C", p. 111:11-25; 117:17-19). He stopped the limousine at the intersection, at which both east and westbound traffic on CR 48 was governed by a blinking yellow light (Exhibit "C", p.107:5-19). While stopped at the subject intersection, Pino claims that he observed the traffic in both directions. (Exhibit "C", p.l17:22-24). A Jeep Liberty was positioned in the left turn lane of westbound CR 48, waiting to turn south onto Depot Lane (Exhibit "C", p.116:23; 117:2; Exhibit "D", p. 5). Pino testified that this vehicle could have interfered with his view of the westbound traffic. (Exhibit "A"; Exhibit "C", p.343: 13-20). 9. Pino testified that he looked to his right and did not see any traffic, other than the dark vehicle in the left turn lane of westbound CR 48. (Exhibit "C", p.l19:12-23). Pino started his left turn, but was not able to start a U-turn before the limousine he was operating was struck by Romeo's truck which was traveling in the left westbound travel lane ofCR 48. (Exhibit "A"; Exhibit "C", p. 120:7-8). 10. As a result of the crash, four of the plaintiffs sustained injuries, and four were killed. Procedural History 11. Following the crash, each of the plaintiffs separately filed suit against Ultimate Class Limousine, Carlos Pino, Romeo Dimon Marine Service, Inc., Steven Romeo, the County of Suffolk and the Town of Southold (collectively referred to as "defendants") as a result of the crash (hereinafter "subject accident"). (See Original Summonses and Complaints, annexed hereto 4 4 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 as Exhibit "G"). Between March and October of 2017, the Complaints were amended to add Cabot Coach Builder, Inc d/b/a Royal Limousine as a defendant. (See Amended Complaints, collectively annexed hereto as Exhibit "F"). Answers to the Amended Complaints were submitted by all defendants respectively, and such are collectively annexed hereto as Exhibit "H"). 12. On October 7, 2016, the Honorable John H. Rouse issued an Order consolidating all matters under Index No. 611214/2015 and with the amended caption used herein. (See Consolidation Order, dated October 7, 2016, annexed hereto as Exhibit "I"). Following the consolidation, discovery ensued, including depositions of all parties and several nonparties. 13. On May 11,2022, the plaintiffs filed a Note of Issue and Certificate of Readiness. (See Note of Issue, filed May 11, 2022, annexed hereto as Exhibit "I"). This motion is made within 120 days of such filing and is, therefore, timely. Accident Reconstruction and DMV Hearing 14. Following the accident, the New York State Police ("NYSP") conducted a collision reconstruction of the subject accident. The NYSP concluded that, due to the size of the limousine Pino was operating, completing a legal U-turn at the subject intersection would have been impossible, as § 1I60(e) of the Vehicle and Traffic Law ("VTL") requires such turns to be made only from the lane so designated that is adjacent to the marked center line. (Exhibit "A"). The Report concluded that the primary causative factors in the subject accident was Pino's failure to yield the right of way and improper turn/lane usage. (Exhibit "A"). 15. Following the subject accident, the New York State Department of Motor Vehicles, Division of Safety and Business, conducted a hearing pursuant to §51 0(3) of the New York State VTL to detel111ine if any actions should be taken as against the driver licenses of both Pino and 5 5 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 Romeo. (See NYSDMV Findings and Disposition, dated April 10,2018, annexed hereto as Exhibit "K"). 16. At the conclusion of the Hearing, DMV Administrative Law Judge Schall held that defendant Pino operated his motor vehicle in violation of several sections of the VTL: VTL § 1128 (failing to safely maintain a single lane of travel), VTL § 1163(a) (attempting to make an improper U-Turn), and VTL §I142(a) (failing to yield the right of way). (Exhibit "K"). 17. ALJ Schall held that both defendant Pino and defendant Romeo violated VTL § 1113 (b) in that both proceeded through an intersection with a rapid intermittent yellow flashing signal or indicator and failed to exercise the necessary and requisite caution in so doing. (Exhibit "K"). In revoking both defendant Pino and defendant Romeo's licenses, ALJ Schall stated: This was not. as it is sometimes referred to, just an unavoidable accident. The collision that occurred and the death that resulted did not have to happen and, but/or the actions in violation of the Vehicle and Traffic Law of the respondent motorists, would not have. The misconduct of the two drivers was the direct and consequential cause-in-fact of the collision and the horrific loss of life that resulted. (Exhibit "K")( emphasis added). 18. Notably, the actions of Pino were not only a violation of law, but they were also contrary to the training manual he was provided by his employer, Ultimate Class Limousine, which expressly prohibited chauffeurs from making U-turns, stating "NEVER ... Make a 'U' tum in a limousine." (Exhibit "D"). OwnershiplMaintenance of CR 48 19. As indicated previously, it is undisputed that CR 48 is owned and maintained by defendant Suffolk County ("County") and was made part of the County Road System on January 27, 1930. (Exhibit "E"; County Road System Report, annexed hereto as Exhibit "L"; EBT Transcript of Daniel Dresch, dated July 17,2019, annexed hereto as Exhibit "M", p. 1-2:14-19; 6 6 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 EBT Transcript of Chief Martin Flatley, dated July 9, 2019, annexed hereto as Exhibit "N", p. 11:6-11). 20. It is also undisputed that the County of Suffolk managed, supervised and/or controlled CR 48 and more specifically, the subject intersection at the time ofthe subject accident. (Exhibit "E", ~4, ~6), and that the County of Suffolk made reasoned and discretionary determinations regarding the placement of traffic signage both on CR 48 and Depot Road. (Exhibit "E", ~18-~24). 21. Finally, it is undisputed that the Suffolk County Department of Public Works ("SCDPW"), and not the Town of Southold, oversees traffic safety on County highways, even when such highways run through towns. (Exhibit "M", p. 12:16). Town Request for Traffic Studies and Resident Concerns 22. Since CR 48 is a County Road and the County is solely responsible for the traffic light and signage on that road, on July 22, 1997, the Town Board of the Town of Southold passed a resolution requesting the SCDPW to conduct a traffic study at the intersection of CR 48 and Depot Lane for the purpose of changing the caution light at that intersection to a traffic light. (See Resolution, dated July 22, 1997, annexed hereto as Exhibit "0"). 23. On August 6, 1997, the Acting Commissioner of the SCDPW responded to the Town request by acknowledging receipt and advising it would conduct a traffic engineering study but that due to the number of request for traffic studies, there will be some delay in completing the study. (See Bartha letter, dated August 6, 1997, annexed hereto as Exhibit "P"). 24. Again, on December 21, 1999, the Town Board ofthe Town of Southold passed a resolution requesting the SCDPW conduct a traffic study at the intersection of CR 48 and Depot Lane for the purpose of installing a traffic light. (See Resolution, dated December 21, 1999, 7 7 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 annexed hereto as Exhibit "Q"). The resolution was forwarded by the Town Clerk to Richard LaValle the Chief Engineer of the County of Suffolk on December 30, 1999. (See Neville Correspondence, dated December 30, 1999, annexed hereto as Exhibit "R"). 25. Additionally, on January 13,2000, the Town Clerk forwarded a letter written by Town of Southold resident, Bernadette Petersen to Mr. LaValle and requested that it be included in her request for a traffic study sent on December 30, 1999. (See Neville Correspondence, dated January 13, 2000, annexed hereto as Exhibit "S"). The letter reiterates request for the change of the traffic control device at the subject intersection (Exhibit "S"). 26. On February 2, 2000, the Acting Chief Engineer of the SCDPW acknowledged receipt of the Town's 1999 request and once again advised that while it will conduct a traffic engineering study, due to the number of requests for traffic studies the County receives, there will be some delay in completing the study. (See Shannon Correspondence, dated February 2, 2000, annexed hereto as Exhibit "T"). 27. On June 26, 2001, the SCDPW received correspondence directly from Ms. Petersen which spoke of the need to address the amount of traffic and the speed of the vehicles traveling on CR 48 which made it difficult for bicyclist to cross from the north side of CR 48 to the south side. (See Petersen Correspondence, dated June 23, 2001, annexed hereto as Exhibit "U"). 28. On August 23, 2002, the SCDPW received correspondence from another Town resident, Nicholas C. Yannios, who expressed his concern over the increased difficult to safely cross CR 48 due to the increased population and volume of cars in the area. (See Yannios letter, dated August 22, 2022, annexed hereto as Exhibit "V"). 29. The Chief Engineer of the SCDPW responded to Mr. Yannios on September 9, 2002 acknowledging receipt of his letter and advising that the County had already initiated a traffic 8 8 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 study at the subject intersection. (See Shannon Correspondence, dated September 9,2002, annexed hereto as Exhibit .oW"). Suffolk County s Handling of Traffic Study Requests 30. The County receives approximately 300 to 400 requests for traffic studies in an average year. (Exhibit "M", p. 21 :4-5). Typically, the requests include the basis for the request, but SCDPW also receives requests that do not include such detail. (Exhibit .oM", p. 21: 6-11; p. 21 :25; p. 22 :2-6). Notably, regardless of whether a request contains the basis for making such a request, the County initiates the requested traffic study. (Exhibit .oM", p. 23:2-9). 31. Upon receipt of a request, the County DPW would send an acknowledgement letter to the requestor thanking them and advising that the County would be initiating a traffic study. (Exhibit .oM", p. 29:13-14; 22-24). 32. Next, a particular engineer staff member would be assigned the file and a traffic study would be initiated. The engineer would use their judgment, expertise and knowledge of the location being studied to determine what studies were necessary. (Exhibit "M", p. 31, p. 8-11). 33. The engineer staff member also determines what data collection would be necessary for the necessary studies. (Exhibit "M", p. 30:4-5; 6-7, 15-16). 34. The main data collected for traffic studies are twenty-four hour traffic counts, turning movement counts and crash history. (Exhibit "M", p. 37:3-18). Once the data has been collected, the County conducts specific traffic studies where the data is analyzed. Those traffic studies include stop sign warrant analysis, traffic signal warrant analysis and left-tum phase analysis. (Exhibit "M", p. 58:14-22) 9 9 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 35. In conducting a traffic signal warrant analysis, the primary data reviewed is traffic volume, both on the main road and on the side street, as well as the crash history of the area being studied. (Exhibit "M", p. 64:5-20). 36. When determining whether to do a left turn phase analysis, the County would first determine the appropriateness of a traffic signal. If a traffic signal is warranted the County would then review crash history to see if the crashes involved a particular left-turning movement. In doing so, the County would also examine turning movement counts to determine if a left phase would be warranted. (Exhibit "M", p. 73: 8-17). 37. Crash data is crucial in traffic studies as it is the most effective way to implement improvements because it helps show trends that need to be addressed. (Exhibit "M", p.79:5-10). In contrast, the location of commercial establishments at or near the intersection being studied are not considered, nor is the size and length of the vehicle or the amount of time it takes for the vehicle to complete its turn. (Exhibit "M", p. 77:19-20; 88: 17-25; 89:2-6). Moreover, the County does not rely on local police to share data regarding tickets and citations when conducting a traffic study. (Exhibit "M", p. 78:6-7). 38. U-turns, according to Dresch, are counted as left-turning movements when turning count surveys are done, and thus, the County does not distinguish between left turns and U-turns. (Exhibit "M", p. 87:2-10). K-turns or multipoint U-turns would also be counted as left turns. (Exhibit "M", p. 90: 21-25; p. 91:20-23). Critically, for the purposes of traffic studies, a U-turn movement is functionally the same as a left turn movement, in that both are movements in front ofthe right-of-way of an oncoming vehicle. (Exhibit "M", p. 88: 14-16). Indeed, Pino testified that he was making a left turn at the time of impact and had not yet begun any U-turn movements (Exhibit "C", p.120:7-8). 10 10 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 County's Studies of the Subject Intersection 39. From the date of the County's receipt of the Town's request for a traffic study in 2000 through 2014, albeit not consistently, the SCDPW was conducting traffic studies of the subject intersection. (Exhibit "M", p. 133:13-14). Initially, in the early 2000's the County conducted volume data and crash history ofthe subject intersection for the purpose of determining whether an upgrade to the existing flashing signal to a three-color signal was warranted. (Exhibit "M", p. 137:23-25; 138:4-7). 40. The request remained open until 2009, at which time, SCDPW traffic engineer Robert Hillman was assigned to the file and recommended to acting chief engineer, Daniel Dresch that the file be closed. (See EBT Transcript of Robert F. Hillman, Jr., dated December 4, 2020, annexed hereto as Exhibit "X", p. 46:6-12). At that time, Mr. Dresch requested that before closing the file updated data collection should be completed and the data analyzed. (Exhibit "M", p. 144:15-20). The bulk of that data collection occurred in 2012,2013 and 2014. (Exhibit "M", p. 144: 15-20). 41. Specifically, updated accident history from August 31, 2009 through August 31, 2012 was compiled. (See SCDPW Updated Study Memorandum, revised February 5, 2014, annexed hereto as Exhibit "Y"). Additionally, with respect to the subject intersection, on May 23, 2012, the County conducted a turning movement count; on April 5, 2012, it conducted a spot speed study; in August of2012 and July, 2013 it conducted various 24 hour, 7 day traffic volume counts both north and south of the subject intersection; on April 12, 2012, intersection sight distance was reviewed; and in August 2012, traffic signal analyses was conducted to consider the effects of right turn vehicles at the subject intersection. (Exhibit "Y"; Exhibit "M", pp. 241-242). The County did 11 11 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 not seek any new or updated information from the Town when conducting these studies. (Exhibit "X", p. 53:8-16). 42. Ultimately, on February 5, 2014, the County made the decision to install a three- color traffic signal at the subject intersection. (Exhibit "M", p. 153:20-24) (Exhibit "M". p. 156:5- 9). Critically, the Town of Southold had no involvement in the design of the traffic light for the County Road, just as it had no involvement in the installation of the traffic control device at the subject intersection prior to the subject accident. (Exhibit "M", p. 158:9-12). U-Turns 43. The plaintiffs' devote much attention to U-turns made from the east and westbound lanes of CR 48 in the claims they have interposed herein. However, the County, as owner and the entity responsible for maintenance of that road, did not recommend that the Town install any regulatory signage on CR48 before the subject accident. (Exhibit .oM", p. 107:9-14). 44. The Town had no duty to install a no U-turn sign on a County road, though it had certain statutory and discretionary powers concerning roads within the Town. The Town did not, at common law or pursuant to any statute, have a legal duty to install any such signage governing the traffic movements within the intersection. Moreover, it would be highly unusual for the Town to employ signage without a recommendation from the County. In fact, the acting assistant Chief Engineer ofthe SCDPW testified that in his thirty (30) years of experience, he is unaware of any Town in Suffolk County that installed traffic control signage on a County Road without the County's recommendation. (Exhibit "M", p. 212:17-22; 213:17-20). It is uncontroverted that the County made no such recommendation here. 45. Moreover, based on accident data collected by the County, there was nothing to suggest U-turn prohibition was required, or would even be appropriate, at the subject intersection, 12 12 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 as the intersection reflected fewer accidents than any other intersection along CR 48. 2 (Exhibit "M", p. 188:8-14). In fact, the Grand Jury Report referenced the danger of unintended consequences of prohibiting V-turns at the subject intersection as it could cause motorist to make V-turns at more dangerous locations without traffic signals at all. (Exhibit "D", p. 64). The Grand Jury also indicated that V-turns benefited residents in several ways as it permitted easier access to their homes and businesses (Exhibit "D", p. 65-66). Vineyard 48 46. As indicated previously, Vineyard 48 is located west of the subject intersection. The Town had received complaints regarding Vineyard 48 and the behavior of its owners and patrons during board meetings, at some of which representatives from the County were present. (See Russell Interrogatory Responses, dated March 12,2021, annexed hereto as Exhibit "Z"). 4 7. The complaints about Vineyard 48 principally concerned the noise level of events held there, the behavior of patrons, the congestion caused by limos parking on both sides of the road and the dangers posed by discharging passengers along both sides of CR 48. (See EBT Transcript of Albert Julius Krupski, Jr., annexed hereto as Exhibit "AA", p.21 :9-15). 48. While residents expressed some concerns regarding V-Turns, most concerned vehicles making V-turns at cut-throughs along CR48 across the grass median and were not specific to the subject intersection. (Exhibit "AA", p.43: 12-21; 50:3-9). Discussions at Town Board Meetings regarding Vineyard 48 and CR 48 involved the safety of the entire road, and specifically those portions of the road closer to Vineyard 48. (Exhibit "AA", p.43:12-21). 2 Although not relevant to the subject accident, after the accident but before installation of traffic control device, the County specifically collected U-turn data from the subject intersection and such data had no impact on the ultimate action of installing a three light traffic control device with no left tum signal, as such data would have originally been collected as part of left-tum phase analysis. (Exhibit "M", p. 169:3-12) 13 13 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 49. The Town attempted to address the concerns about the Vineyard that were within its jurisdictional powers. For example, in 2011, the owners of Vineyard 48 sought a "winery event permit" for dances it planned to hold on November 12, 2011 and November 13, 2011. (Exhibit "D", p. 38). In response, the Southold Town Zoning Board of Appeals required that Vineyard 48 provide to limousine and bus drivers transporting attendees to the event a printed traffic route that prohibited U-turns on CR 48, as well as a requirement that the Vineyard have a security person on site to provide surveillance and supervision of traffic. (Exhibit "D", p. 381; Special Event Permit, annexed hereto as Exhibit "BB"). Notably, the directive was made to the proprietors of the Vineyard, as was within the Town's zoning authority. Moreover, the Town Police increased police monitoring of the site and sought input from the County of Suffolk as to how best to address traffic issues caused by the Vineyard along CR 48. (Exhibit "Z"). 50. In 2012, the Town also sought permission from the County of Suffolk to implement parking and standing restrictions along CR 48 in light of the popularity of Vineyard 48. (Exhibit "D", p. 41). Ultimately, the County of Suffolk granted permission for the Town to install "no parking/standing" signs along CR 48. (Exhibit "D", p.41; Exhibit "M", p. 108:5-20, 25). This recommendation followed a site visit of Vineyard 48 and the surrounding area by representatives of the SCDPW in response to communications from the Town about the conditions that existed therein. (Exhibit "M", p. 109:4-6, 11-18, p.110:21-24; 112:21-24). 51. Again, the County made no recommendations to the Town with respect to the prohibition of U-turns along CR 48 or at its intersection with Depot Road. (Exhibit "M", p. 107:9- 14). 14 14 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 Legal Claim and Defenses 52. The plaintiffs commonly allege that the defendant Town was negligent in the ownership, operation, maintenance and control of the County Road and Depot Lane at or about the intersection of those roads, and particularly concerning the traffic controls, or lack thereof, at the accident site. (See Verified Bill of Particulars, collectively annexed hereto as Exhibit "CC"). 53. The attached memorandum oflaw addresses the TOWN's legal arguments in detail. In sum, CR 48 is a County Road, and the Town has no legal duty over a roadway that it does not own, control or maintain. The traffic control governing traffic on the County Road was provided by the County of Suffolk, over which the Town never assumed control. The subject intersection is owned and maintained by the County of Suffolk which is exclusively responsible for itsdesign and maintenance. 54. Moreover, the Town would be entitled to judgment as a matter of law even if it had a legal duty regarding the County road (which it does not) because the absence of a no U-turn sign at the intersection was not, as a matter of law, a proximate cause of this crash. Rather, it was the action of Pino in failing to yield the right of way to westbound traffic on CR 48, as determined by the NYS Police and the DMV Administrative Law Judge, that was the sole proximate cause of the accident. 55. Finally, in the interests of judicial economy, the TOWN OF SOUTHOLD fully adopts and incorporates by reference the legal and factual arguments set forth in Cabot's supporting papers as well as the Exhibits offered in support of Cabot's motion electronically filed as docket entries 948-1002 that seek dismissal of the claims for "pre-impact terror made on behalf of each of the four decedents on the ground that there was no recognition of any pending impact prior to the accident, and dismissing the claims for conscious pain and suffering and fear of 15 15 of 16 FILED: SUFFOLK COUNTY CLERK 09/06/2022 05:44 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1006 RECEIVED NYSCEF: 09/07/2022 impending death made on behalf of the four decedents on the grounds that the decedents were not conscious for any period of time after the accident and had no cognitive awareness of pain and suffering. " Word Count 56. This Honorable Court, in an email dated April 27, 2022 (Exhibit "DD"), suspended Rule 202.8-b's restriction on the length of motions in light of the number of litigants, number of claims, and complexity of some of the issues. As such, word count certifications are not present on the documents submitted herewith. WHEREFORE, Defendant TOWN OF SOUTHOLD requests that this Court grant the instant motion and dismiss plaintiffs Complaint in its entirety, with prejudice, together with such other and further relief as this Court deems just, equitable, and proper. Dated: Nesconset, New York September 6,2022 a S. Shteierman, Esq. LZ & VIGLIOTTA, PLLC Attorneys for Defendant TOWN OF SOUTHOLD 280 Smithtown Blvd. Nesconset, NY 11767 (631) 366-2700