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FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022
Table of Contents
1. FACTS.....................................................................................................................3
2. PLEADINGS...........................................................................................................5
3. POSTURE OF THE CASE.....................................................................................5
4. CONTENTIONS OF THE COUNTY OF SUFFOLK............................................6
5. DANIEL J. DRESCH, JR........................................................................................8
6. CHIEF MARTIN FLATLEY.................................................................................26
7. CARLOS PINO......................................................................................................27
8. STEVEN ROMEO.................................................................................................35
POINT I
THE STANDARD FOR SUMMARY JUDGMENT
MOTIONS.................................................................................................40
POINT II
THE COUNTY OF SUFFOLK IS ENTITLED TO THE BENEFIT
OF THE DOCTRINE OF QUALIFIED IMMUNITY...............................43
POINT III
THE COUNTY DID NOT HAVE EITHER ACTUAL OR
CONSTRUCTIVE NOTICE OF AN ALLEGED TRAFFIC
PROBLEM AT CR 48 AND DEPOT LANE............................................49
POINT IV
DUE TO THEIR VTL VIOLATIONS, CARLOS PINO AND STEVEN
ROMEO WERE NEGLIGENT AS A MATTER OF LAW......................53
POINT V
THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS
THE ACTIONS AND/OR INACTIONS OF CARLOS PlNO
AND PERHAPS STEVEN ROMEO.........................................................57
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POINT VI
DECEDENTS'
THE CLAIMS FOR CONSCIOUS PAIN
AND SUFFERING MUST BE DISMISSED............................................62
PLAINTIFFS'
9. SUMMARY OF TESTIMONY.....................................................66
10. FIRST RESPONDERS TESTIMONY..................................................................71
POINT VII
DECEDENTS'
THE ESTATES CANNOT PROVE
A CLAIM FOR PRE-IMPACT TERROR.................................................79
11. CONCLUSION......................................................................................................92
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Table of Cases
Affleck v. Buckley, 276 AD2d 507 affd 96 NY2d 553 (2001)............................................46,47,49
Ali v. Long Island Rail Road, 300 AD2d 264 (2d Dept. 2002).....................................................60
Andre v. Pomeroy, 35 NY2d 361 (1974)...........................................................................42
Axelrod v. State of New York, (2018-045-037, Claim No. 123905).................................50
Berner v. Koegel, 31 AD2d 591 (2d Dept. 2006)..............................................................56
Bisceglia v. International Business Machines, 287 AD2d 674 (2d Dept. 2001)......58,59,60
Boltax v. Joy Day Camp, 67 NY2d 617 (1986).................................................................57
Botero v. Erraez, 289 AD2d 274 (2d Dept. 2001) ............................................
56
Brill v. City of New York, 2 NY3d 648 (2004).............................................................................43
Bullock v. Calabretta, 119 AD3d 884 (2d Dept. 2014)...............................................................
.56
Cleary v. L.J.R. Assocs., 198 AD2d 394 (2d Dept. 1993).............................................................64
Cummins v. County v. Onondoga, 84 NY2d 322 (1994).........................................................64,65
Derdiarian v. Felix Contr. Co., 51 NY2d 308 (1980)...................................................................57
Deyoe v. State of New York, (2019-053-007, Claim No. 124703) .........................................50,51
Divona v. Wahlfeld, 35 AD3d 527 (2006)....................................................................................60
Driscoll v. State of New York, 2016 NY Slip Op 32892 (U).......................................................56
Enker v. County of Sullivan, 162 AD3d 1366 (3d Dept. 2018)....................................................51
Ferrara v. Castro, 283 AD3d 392 (2d Dept. 2001)........................................................................56
Flynn v. Grabiec, 2016 NY Slip Op 32533(U).........................................................................60,61
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Friedman v. State of New York, 67 NY2d 671 (1986)..................................................................50
Friends of Animals v. Associated Fur Mfgrs., 46 NY2d 1005 (1979)...............................41
Gabler v. Marly Bldg. Supply Corp., 27 AD3d 519 (2d Dept. 2006)...................................56
Gomez v. Santiago, 135 AD3d 666 (2016)....................................................................................60
Heath v. Liberato, 82 AD2d 841 (2d Dept. 2011)..............................................................56
Howard v. Poseidon Pools, 72 NY2d 972 (1988).........................................................57,58
(2"d
Iacone v. Passanisi, 133 AD3d 717 Dept. 2015).........................................................46
In the Matter of Elmaz Qvra, Deceased, 185 AD3d 935 (2d Dept. 2020).....................................65
(2"d
Keenan v. Molloy, 137 AD3d 868 Dept 2016)..................................................................79,92
(2"d
Kevra v. Vladagin, 96 AD3d 805 Dept. 2012)...................................................................79,92
Khojasteh v. State of New York, 2019 NY Slip Op (U)...........................................................51,53
Leonard v. City of New York, 42 Misc. 3d 1202A, Supreme Court, Kings County, 2013...........54
Maloney v. Niewender, 27 AD3d 426 (2d Dept. 2006).....................................................56
McDougald v. Garber. 73 NY2d 246 (1989).....................................................................63
Rabenstein v. Suffolk County Department of Public Works, 131 AD3d 1145 (2d Dept.
2015)...................................................................................................................................55
Ramirez v. State ofNew York, 143 AD3d 880 (2d Dept. 2016)..................................46,49
Ramos v. Shah, 293 AD2d 459 (2d Dept. 2002)................................................................63
Smith v. Stark, 67 NY2d 693 (1986)..................................................................................57
Spanbock v. Trzaska 287 AD2d 496 (2d Dept. 2001).......................................................49
Thompson v. State of New York, (2012-045-503, Claim No. 113754).......................................
51
Tomassi v. Town of Union, 46 NY2d 91 (1978)...........................................................................44
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Turturro v. City of New York, 28 NY3d 469 (2016)................................................................43,46
Vatalaro v. County of Suffolk, 163 AD3d 893 (2d Dept. 2018)....................................................80
Vizzini v. State of New York, 278 AD2d 562 (3d Dept. 2000)....................................................50
Weiss v. Fote, 7 NY2d 579 (1960)................................................................................................45
Wittorf v. City of New York, 23 NY3d 473 (2014)......................................................................43
Statutes
VTL§1141......................................................................................................................................56
PJI 2:77.1.............................................................................................................................24,55,56
PJI 2:280........................................................................................................................................63
PJI 2:320...................................................................................................................................79,80
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF SUFFOLK
..................--------------_____________________________________________________Ç
SUZANNE SCHULMAN, AS ADMINISTRATRIX OF THE
ESTATE OF BRITTANY M. SCHULMAN, DECEASED; ALICIA
M. ARUNDEL; OLGA LIPETS; MINDY GRABINA, AS Index No.
ADMINISTRATRIX OF THE ESTATE OF AMY GRABINA, 611214/2015
AND MINDY GRABINA, INDIVIDUALLY; STEVEN BARUCH,
AS ADMINISTRATOR OF THE ESTATE OF LAUREN BARUCH,
DECEASED, AND STEVEN BARUCH, INDIVIDUALLY; AFFIRMATION
JOELLE DIMONTE; MELISSA A. CRAI; AND ARTHUR A. BELLI, IN SUPPORT
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 D.
ROMEO, TOWN OF SOUTHOLD, COUNTY OF SUFFOLK,
CABOT COACH BUILDERS, INC., d/b/a ROYALE LIMOUSINE
1-5"
and "XYZ COMPANIES 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.
........------.......---------------.............---------------_____________________Ç
VINCENT D. McNAMARA, an attorney duly licensed to practice law before the
Courts of the State of New York, pursuant to the provisions of Rule 2106 of the Civil
Practice Law and Rules and under the penalties of perjury does hereby affirm as follows:
That his office is attorney-of-record for the defendant COUNTY OF SUFFOLK and
as such, I am fully familiar with all of the facts and proceedings heretofore had herein.
This affirmation is submitted in support ofthe within motion for Summary Judgment
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on the issue of liability on the grounds of: (1) Qualified Immunity; (2) Lack of Notice; (3)
Negligence as a Matter of Law; and (4) Proximate Cause and alternatively on the issue of
damages with respect to: (5) Failure of Proof of Conscious Pain and Suffering; and (6)
Failure of Proof of Pre-Impact Terror.
"A"
The following exhibits are annexed hereto and denominated Exhibit through
Exhibit "BB":
A. Affidavit of Daniel J. Dresch, Jr.;
B. EBT Transcript of Carlos Pino;
C. DPW Memo;
D. EBT Transcript of Steven Romeo;
E. Notices of Claim;
F. Summonses and Complaints;
Defendants'
G. Answers;
H. Note of Issue;
I. Thomas Moore April 27, 2022 E-Mail;
J. EBTofDaniel J. Dresch, Jr.;
K. EBT of Martin Flatley;
L. DMV Decision;
M. MUTCD 4C.09;
N. Town Board Minutes
O. Accident Report;
P. DMV Hearing;
Q. Appellate Division Decision - State of New York v. Carlos Pino;
R. Stephanie Belli Ambulance Report and PBMCRecords;
Testimony'
S. Alicia Arundel 50-h Hearing
T. Alicia Arundel EBT Testimony;
U. Melissa Crai 50-h Hearing Testimony;
V. Melissa Crai EBT Testimony;
W. Joelle DiMonte 50-h Hearing Testimony;
X. Joelle DiMonte EBT Testimony;
Y. Olga Lipets 50-h Hearing Testimony;
Z. Olga Lipets EBT Testimony;
AA. Craig Goldsmith EBT Testimony; and
BB Darryl Berezny EBT Testimony.
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The affidavit of Daniel J. Dresch, Jr., (Exhibit "A") who was the Director of Traffic
Engineering and Highway Work Permits at the time in question, July 18, 2015 fleshes out the issues
of Qualified Immunity and Lack of Notice which form the bases for dismissal of the claims of the
decedents'
four (4) Estates and the four (4) surviving plaintiffs on separate and discrete grounds.
The application on behalf of the County of Suffolk is discussed in further detail below.
1. FACTS
This action, consolidated by Orders of this Court dated October 7, 2016 and April 25, 2017
(the Court is respectfully referred to co-defendant Romeo Dimon Marine Service, Inc.'s Exhibit
"G"), arises out of a well-publicized, catastrophic accident which took place at or about 5:1 1 pm on
a clear, sunny Saturday, July 18, 2015. Itinvolved a 2007 black Lincoln Town Car stretch limousine
driven by defendant Carlos Pino (Pino) and owned by defendant Ultimate Class Limousine (UCL)
and a 2005 Red Dodge Dakota truck owned and operated by defendant Steven Romeo (Romeo). The
accident took place at the intersection of County Road 48 (CR48) and Depot Lane (Depot) in the
Town of Southold.
At the time in question the limousine was returning to Smithtown, New York after a
day at a distillery and winery, Vineyard 48, located on CR 48 approximately one-quarter mile
west of the intersection in question. Passengers in the limousine at the time were the
deceased plaintiffs Brittany M. Schulman, Amy Grabina, Lauren Baruch and Stephanie Belli
and the surviving plaintiffs Alicia Arundel, Olga Lipets, Joelle DiMonte and Melissa Crai.
.3.
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CR 48 at this juncture is an east-west thoroughfare with left and right hand turning
lanes at the Depot intersection. It was the intention of Pino to proceed eastbound to the
CR48-Depot intersection, then make a U-turn (Exhibit "B"-EBT-C. Pino, pp. 111, 201)
in order to proceed westbound to the Baruch residence where he had picked up the eight
women earlier that morning. The sight line for left or U-turning traffic is approximately
"C" -
1,000 feet (Exhibit SCDPW Updated Study Memorandum 2/5/14). While in the
process of executing this U-turn, and positioned perpendicular to the westbound lanes of CR
48, the limousine was struck by the Romeo truck which was proceeding in the left of the two
westbound lanes of CR 48 (Exhibit "D"-EBT-S. Romeo, p. 62).
The intersection was, at the time in question, controlled by flashing yellow lights for
east and westbound CR 48 traffic and stop signs along with flashing red lights for north and
southbound Depot traffic. Both Pino (p. 186) and Romeo (p. 256) were familiar with the
intersection and aware of the fact that a flashing yellow light meant that one was to proceed
with caution. Pino also admitted that Romeo had the right-of-way (Pino, p. 341).
Nevertheless, despite claiming that he had an open roadway on which to proceed, the
limousine operated by Pino was struck by Romeo's truck while in the process of making the
turn at the intersection (Pino, p. 194).
With regard to the decedents, they either died instantaneously or shortly thereafter
without regaining consciousness. None of the surviving plaintiffs have been able to relate
any degree of conscious pain and suffering on behalf of the decedents. Nor for that matter
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to recite any of the facts and circumstances as to what transpired immediately prior to the
contact between the vehicles (POINT VI infra).
2. PLEADINGS
Distilled to their purist form and with respect to liability, the collective gravamen of
the Notices of Claim and Complaints is that the County failed to conduct a proper traffic
study which purportedly would have resulted in a left-turn signal and/or No U-Turn sign at
the intersection (Exhibit "E"-Notices of Claim; Exhibit "F"-Summonses and
Complaints; Exhibit "G"-Answers"). In the interests of judicial economy, the County
"C"
fully adopts and incorporates by reference herein co-defendant Cabot Coach's Exhibit
-Cabot Coaches Answers to Amended Complaints and Exhibit "D"-Answers of Other
Defendants to Amended Complaints.
decedents'
Insofar as damages are concerned, all Estates allege claims for conscious
pain and suffering. There are additional claims for pre-impact terror, denominated as fear
of impending death.
3. POSTURE OF THE CASE
Discoveryhas been deemed completed, and a joint Note ofIssue was filed on May 11,
2022. A copy is attached as Exhibit "H". This motion is made within 120 days of the filing
of theNote of Issue. This Honorable Court, in an e-mail dated April 27, 2022, from Thomas
F. Moore, Principal Law Clerk for the Hon. John H. Rouse, suspended Rule 202.8-b's
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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. A copy of the e-mail is annexed hereto as Exhibit "I".
4. CONTENTIONS OF THE COUNTY OF SUFFOLK
A. Damages
Though as will be discussed below, the Court need not reach the issue, with regard
to the issue of damages, the contention of the County of Suffolk is that the claims for
conscious pain and suffering and pre-impact terror are incapable of competent proof and
must be dismissed.
B. Liability
The County contends itis entitled to Qualified Immunity in that it had undertaken
traffic studies which were more than adequate in nature, and properly deliberated upon. As
a result thereof, an engineering judgment was made which was consistent with good traffic
study practice, and which addressed in advance the allegations proffered therein. The County
further contends that ithad no actual or constructive notice of an alleged problem with limos
and U-turns at this intersection. Moreover, that the drivers, Pino and Romeo, were negligent
as a matter of law and as well, the sole proximate cause of the accident.
Specifically, plaintiffs are collectively claiming that a traffic light should have been
in place with a protective green arrow component and/or restriction of U-turns by way of
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signage. In this regard, the County further contends that prior to this accident ithad decided
to place a light at the intersection though said light was not technically warranted under the
guidelines of the Manual of Uniform Traffic Control Devices (MUTCD). Nevertheless, the
approval of same was permitted on the basis of an attempt to proactively project anticipated
"J" -
traffic volumes five (5) years in advance (Exhibit Dresch, pp. 153-154, 224-225).
Said light was a three-phase light, as there was no concomitant provision in the MUTCD for
a five-year look-ahead for a left-turn signal.
The County further contends that prior to this accident, nobody, whether individually
or in a representative capacity, made a request of the County for either a lefthand turn signal
or a No U-turn sign. Moreover, at no time was the County ever advised of any alleged issues
with respect to limousines making U-turns at this intersection (Dresch, p. 215). Tellingly,
before this tragic occurrence, there had not been even one lefthand or U-turn accident at this
intersection. Not one (Dresch. p. 144). Thus, the County was not on either actual or
intersection"
constructive notice of the purported "dangerous which is now being alleged
herein.
Accordingly, the County should be dismissed from this case on the ground of
Qualified Immunity based on its proper and professionally thought-out traffic study; and on
the separate ground that there was no actual or constructive notice imparted to the County
intersection."
of this alleged "dangerous Finally, and perhaps most tellingly, the sole
proximate cause of the accident was the actions and/or inactions of the defendant drivers who
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were negligent as a matter of law. Simply stated, the County played absolutely no role in this
pocket."
tragedy as itsinvolvement is solely as a proverbial "deep
Below are excerpts from the deposition testimony of Daniel J. Dresch, Jr., Carlos Pino
and Steven Romeo which illuminate the background and buttress the grounds for the
County's entitlement to Summary Judgment.
5. DANIEL J. DRESCH, JR.
A. Background
Daniel J. Dresch, Jr. was deposed in this matter on behalf of the County on July 17,
2019. At the time of the accident, he was the Director of Traffic Engineering and Highway
Work Permits for the Suffolk County Department of Public Works (SCDPW). His testimony
ran almost 7 hours and consisted of 250 pages. All parties were present, and during the
session he was questioned in great detail regarding this particular intersection. Testimony
relevant to this application is set forth below.
Q: Who is your present employer?
A: Suffolk County.
* * *
Q: What was your title in 2015?
A: My title in 2015 was director of traffic
engineering and highway work pennits.
(Dresch, p. 16)
Q: Now, in July of2015, was County Road 48
owned by Suffolk County?
A: Yes.
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Q: Was italso maintained by Suffolk County?
A: Yes.
* * *
Q: In July of 2015, was Depot Lane owned by
the Town of Southold?
A: Yes.
Q: And maintained by the Town of Southold?
A: Yes.
(Dresch, p. 102)
Q: Who maintained the light before July I 8,
2015?
A: That traffic signal was owned and
maintained by the Town of Southold.
Q: Is that because of some agreement that the
county and the town entered into prior to
that date?
A: Yes.
Q: Are those agreements typical when there
are county roads that intersect the town
roads?
A: Yes
(Dresch, pp. 106, 107)
Q: Are there any turning lanes at the
intersection on County Road 48?
A: Yes.
(Dresch, p. 103)
B. General Traffic Study and Warrant Background
Q: Now, can you tell me the names of specific
traffic studies, the actual analysis of the
data? And this is distinguishable from
traffic surveys, which we've agreed was
the collection of data.
A: We would have stop sign warrant analysis,
traffic signal warrant analysis.
Q: Any others?
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A: Left-turn phase analysis.
(Dresch, p. 58)
Q: Is crash history data one of the surveys or
data collection methods that were utilized
by Suffolk County during the time that you
were director?
A: Yes.
Q: What is the purpose of that data?
A: To identify trends, accident trends, at
which we could take protective action.
(Dresch, pp. 52, 53)
Q: Before I go on with traffic studies, I just
want to go back to traffic surveys for a
moment. Between 2007 and July 18, 2015,
while you were director of traffic
engineering for Suffolk County, did
Suffolk County ever conduct a survey of
U-turn volume in relation to a traffic study
at an intersection that involved a county
road?
A: No.
Q: Was there a reason why that data had
never been collected by Suffolk County
during that time period, in relation to a
traffic study?
A: I don't believe we've ever had a request
in that time frame for a matter that
involved U-turning vehicles. (Emphasis
supplied).
(Dresch, pp. 62, 63)
Q: With regard to traffic studies, what is the
purpose of the traffic signal warrant
analysis?
A: The purpose of a traffic signal warrant
analysis is to determine if the data
collected meets the warrants laid out in the
National Manual of Uniform Traffic
Control Devices.
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Q: What is the purpose of the left-turn phase
analysis?
A: The left-turn phase analysis is a
supplemental analysis to determine, in the
event of an existing or proposed traffic
signal, whether a left-turn phase would be
warranted.
Q: A left-turn phase, is that a left-turn arrow
on a traffic light?
A: Yes.
Q: What data was typically collected by
Suffolk County in advance of a traffic
signal warrant analysis during the time that
you were director?
A: The warrants in the national manual, there
are approximately nine of them, some are
applicable to some locations, others are
applicable to others. Theprimary data that
is used is traffic volumes, both on the main
road, traffic volumes on the side street, as
well as crash history.
Q: Are you saying that those are the primary
surveys that are utilized in a traffic signal
warrant analysis?
A: For a typical traffic signal warrant
analysis, yes.
(Dresch, pp. 63, 64)
Q: So then are those the only surveys that are
utilized in relation to a traffic signal
Preview
FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 Table of Contents 1. FACTS.....................................................................................................................3 2. PLEADINGS...........................................................................................................5 3. POSTURE OF THE CASE.....................................................................................5 4. CONTENTIONS OF THE COUNTY OF SUFFOLK............................................6 5. DANIEL J. DRESCH, JR........................................................................................8 6. CHIEF MARTIN FLATLEY.................................................................................26 7. CARLOS PINO......................................................................................................27 8. STEVEN ROMEO.................................................................................................35 POINT I THE STANDARD FOR SUMMARY JUDGMENT MOTIONS.................................................................................................40 POINT II THE COUNTY OF SUFFOLK IS ENTITLED TO THE BENEFIT OF THE DOCTRINE OF QUALIFIED IMMUNITY...............................43 POINT III THE COUNTY DID NOT HAVE EITHER ACTUAL OR CONSTRUCTIVE NOTICE OF AN ALLEGED TRAFFIC PROBLEM AT CR 48 AND DEPOT LANE............................................49 POINT IV DUE TO THEIR VTL VIOLATIONS, CARLOS PINO AND STEVEN ROMEO WERE NEGLIGENT AS A MATTER OF LAW......................53 POINT V THE SOLE PROXIMATE CAUSE OF THE ACCIDENT WAS THE ACTIONS AND/OR INACTIONS OF CARLOS PlNO AND PERHAPS STEVEN ROMEO.........................................................57 1 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 POINT VI DECEDENTS' THE CLAIMS FOR CONSCIOUS PAIN AND SUFFERING MUST BE DISMISSED............................................62 PLAINTIFFS' 9. SUMMARY OF TESTIMONY.....................................................66 10. FIRST RESPONDERS TESTIMONY..................................................................71 POINT VII DECEDENTS' THE ESTATES CANNOT PROVE A CLAIM FOR PRE-IMPACT TERROR.................................................79 11. CONCLUSION......................................................................................................92 -11- 2 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 Table of Cases Affleck v. Buckley, 276 AD2d 507 affd 96 NY2d 553 (2001)............................................46,47,49 Ali v. Long Island Rail Road, 300 AD2d 264 (2d Dept. 2002).....................................................60 Andre v. Pomeroy, 35 NY2d 361 (1974)...........................................................................42 Axelrod v. State of New York, (2018-045-037, Claim No. 123905).................................50 Berner v. Koegel, 31 AD2d 591 (2d Dept. 2006)..............................................................56 Bisceglia v. International Business Machines, 287 AD2d 674 (2d Dept. 2001)......58,59,60 Boltax v. Joy Day Camp, 67 NY2d 617 (1986).................................................................57 Botero v. Erraez, 289 AD2d 274 (2d Dept. 2001) ............................................ 56 Brill v. City of New York, 2 NY3d 648 (2004).............................................................................43 Bullock v. Calabretta, 119 AD3d 884 (2d Dept. 2014)............................................................... .56 Cleary v. L.J.R. Assocs., 198 AD2d 394 (2d Dept. 1993).............................................................64 Cummins v. County v. Onondoga, 84 NY2d 322 (1994).........................................................64,65 Derdiarian v. Felix Contr. Co., 51 NY2d 308 (1980)...................................................................57 Deyoe v. State of New York, (2019-053-007, Claim No. 124703) .........................................50,51 Divona v. Wahlfeld, 35 AD3d 527 (2006)....................................................................................60 Driscoll v. State of New York, 2016 NY Slip Op 32892 (U).......................................................56 Enker v. County of Sullivan, 162 AD3d 1366 (3d Dept. 2018)....................................................51 Ferrara v. Castro, 283 AD3d 392 (2d Dept. 2001)........................................................................56 Flynn v. Grabiec, 2016 NY Slip Op 32533(U).........................................................................60,61 -lii- 3 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 Friedman v. State of New York, 67 NY2d 671 (1986)..................................................................50 Friends of Animals v. Associated Fur Mfgrs., 46 NY2d 1005 (1979)...............................41 Gabler v. Marly Bldg. Supply Corp., 27 AD3d 519 (2d Dept. 2006)...................................56 Gomez v. Santiago, 135 AD3d 666 (2016)....................................................................................60 Heath v. Liberato, 82 AD2d 841 (2d Dept. 2011)..............................................................56 Howard v. Poseidon Pools, 72 NY2d 972 (1988).........................................................57,58 (2"d Iacone v. Passanisi, 133 AD3d 717 Dept. 2015).........................................................46 In the Matter of Elmaz Qvra, Deceased, 185 AD3d 935 (2d Dept. 2020).....................................65 (2"d Keenan v. Molloy, 137 AD3d 868 Dept 2016)..................................................................79,92 (2"d Kevra v. Vladagin, 96 AD3d 805 Dept. 2012)...................................................................79,92 Khojasteh v. State of New York, 2019 NY Slip Op (U)...........................................................51,53 Leonard v. City of New York, 42 Misc. 3d 1202A, Supreme Court, Kings County, 2013...........54 Maloney v. Niewender, 27 AD3d 426 (2d Dept. 2006).....................................................56 McDougald v. Garber. 73 NY2d 246 (1989).....................................................................63 Rabenstein v. Suffolk County Department of Public Works, 131 AD3d 1145 (2d Dept. 2015)...................................................................................................................................55 Ramirez v. State ofNew York, 143 AD3d 880 (2d Dept. 2016)..................................46,49 Ramos v. Shah, 293 AD2d 459 (2d Dept. 2002)................................................................63 Smith v. Stark, 67 NY2d 693 (1986)..................................................................................57 Spanbock v. Trzaska 287 AD2d 496 (2d Dept. 2001).......................................................49 Thompson v. State of New York, (2012-045-503, Claim No. 113754)....................................... 51 Tomassi v. Town of Union, 46 NY2d 91 (1978)...........................................................................44 -1V- 4 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 Turturro v. City of New York, 28 NY3d 469 (2016)................................................................43,46 Vatalaro v. County of Suffolk, 163 AD3d 893 (2d Dept. 2018)....................................................80 Vizzini v. State of New York, 278 AD2d 562 (3d Dept. 2000)....................................................50 Weiss v. Fote, 7 NY2d 579 (1960)................................................................................................45 Wittorf v. City of New York, 23 NY3d 473 (2014)......................................................................43 Statutes VTL§1141......................................................................................................................................56 PJI 2:77.1.............................................................................................................................24,55,56 PJI 2:280........................................................................................................................................63 PJI 2:320...................................................................................................................................79,80 -v- 5 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF SUFFOLK ..................--------------_____________________________________________________Ç SUZANNE SCHULMAN, AS ADMINISTRATRIX OF THE ESTATE OF BRITTANY M. SCHULMAN, DECEASED; ALICIA M. ARUNDEL; OLGA LIPETS; MINDY GRABINA, AS Index No. ADMINISTRATRIX OF THE ESTATE OF AMY GRABINA, 611214/2015 AND MINDY GRABINA, INDIVIDUALLY; STEVEN BARUCH, AS ADMINISTRATOR OF THE ESTATE OF LAUREN BARUCH, DECEASED, AND STEVEN BARUCH, INDIVIDUALLY; AFFIRMATION JOELLE DIMONTE; MELISSA A. CRAI; AND ARTHUR A. BELLI, IN SUPPORT 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 D. ROMEO, TOWN OF SOUTHOLD, COUNTY OF SUFFOLK, CABOT COACH BUILDERS, INC., d/b/a ROYALE LIMOUSINE 1-5" and "XYZ COMPANIES 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. ........------.......---------------.............---------------_____________________Ç VINCENT D. McNAMARA, an attorney duly licensed to practice law before the Courts of the State of New York, pursuant to the provisions of Rule 2106 of the Civil Practice Law and Rules and under the penalties of perjury does hereby affirm as follows: That his office is attorney-of-record for the defendant COUNTY OF SUFFOLK and as such, I am fully familiar with all of the facts and proceedings heretofore had herein. This affirmation is submitted in support ofthe within motion for Summary Judgment 6 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 on the issue of liability on the grounds of: (1) Qualified Immunity; (2) Lack of Notice; (3) Negligence as a Matter of Law; and (4) Proximate Cause and alternatively on the issue of damages with respect to: (5) Failure of Proof of Conscious Pain and Suffering; and (6) Failure of Proof of Pre-Impact Terror. "A" The following exhibits are annexed hereto and denominated Exhibit through Exhibit "BB": A. Affidavit of Daniel J. Dresch, Jr.; B. EBT Transcript of Carlos Pino; C. DPW Memo; D. EBT Transcript of Steven Romeo; E. Notices of Claim; F. Summonses and Complaints; Defendants' G. Answers; H. Note of Issue; I. Thomas Moore April 27, 2022 E-Mail; J. EBTofDaniel J. Dresch, Jr.; K. EBT of Martin Flatley; L. DMV Decision; M. MUTCD 4C.09; N. Town Board Minutes O. Accident Report; P. DMV Hearing; Q. Appellate Division Decision - State of New York v. Carlos Pino; R. Stephanie Belli Ambulance Report and PBMCRecords; Testimony' S. Alicia Arundel 50-h Hearing T. Alicia Arundel EBT Testimony; U. Melissa Crai 50-h Hearing Testimony; V. Melissa Crai EBT Testimony; W. Joelle DiMonte 50-h Hearing Testimony; X. Joelle DiMonte EBT Testimony; Y. Olga Lipets 50-h Hearing Testimony; Z. Olga Lipets EBT Testimony; AA. Craig Goldsmith EBT Testimony; and BB Darryl Berezny EBT Testimony. -2- 7 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 The affidavit of Daniel J. Dresch, Jr., (Exhibit "A") who was the Director of Traffic Engineering and Highway Work Permits at the time in question, July 18, 2015 fleshes out the issues of Qualified Immunity and Lack of Notice which form the bases for dismissal of the claims of the decedents' four (4) Estates and the four (4) surviving plaintiffs on separate and discrete grounds. The application on behalf of the County of Suffolk is discussed in further detail below. 1. FACTS This action, consolidated by Orders of this Court dated October 7, 2016 and April 25, 2017 (the Court is respectfully referred to co-defendant Romeo Dimon Marine Service, Inc.'s Exhibit "G"), arises out of a well-publicized, catastrophic accident which took place at or about 5:1 1 pm on a clear, sunny Saturday, July 18, 2015. Itinvolved a 2007 black Lincoln Town Car stretch limousine driven by defendant Carlos Pino (Pino) and owned by defendant Ultimate Class Limousine (UCL) and a 2005 Red Dodge Dakota truck owned and operated by defendant Steven Romeo (Romeo). The accident took place at the intersection of County Road 48 (CR48) and Depot Lane (Depot) in the Town of Southold. At the time in question the limousine was returning to Smithtown, New York after a day at a distillery and winery, Vineyard 48, located on CR 48 approximately one-quarter mile west of the intersection in question. Passengers in the limousine at the time were the deceased plaintiffs Brittany M. Schulman, Amy Grabina, Lauren Baruch and Stephanie Belli and the surviving plaintiffs Alicia Arundel, Olga Lipets, Joelle DiMonte and Melissa Crai. .3. 8 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 CR 48 at this juncture is an east-west thoroughfare with left and right hand turning lanes at the Depot intersection. It was the intention of Pino to proceed eastbound to the CR48-Depot intersection, then make a U-turn (Exhibit "B"-EBT-C. Pino, pp. 111, 201) in order to proceed westbound to the Baruch residence where he had picked up the eight women earlier that morning. The sight line for left or U-turning traffic is approximately "C" - 1,000 feet (Exhibit SCDPW Updated Study Memorandum 2/5/14). While in the process of executing this U-turn, and positioned perpendicular to the westbound lanes of CR 48, the limousine was struck by the Romeo truck which was proceeding in the left of the two westbound lanes of CR 48 (Exhibit "D"-EBT-S. Romeo, p. 62). The intersection was, at the time in question, controlled by flashing yellow lights for east and westbound CR 48 traffic and stop signs along with flashing red lights for north and southbound Depot traffic. Both Pino (p. 186) and Romeo (p. 256) were familiar with the intersection and aware of the fact that a flashing yellow light meant that one was to proceed with caution. Pino also admitted that Romeo had the right-of-way (Pino, p. 341). Nevertheless, despite claiming that he had an open roadway on which to proceed, the limousine operated by Pino was struck by Romeo's truck while in the process of making the turn at the intersection (Pino, p. 194). With regard to the decedents, they either died instantaneously or shortly thereafter without regaining consciousness. None of the surviving plaintiffs have been able to relate any degree of conscious pain and suffering on behalf of the decedents. Nor for that matter -4- 9 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 to recite any of the facts and circumstances as to what transpired immediately prior to the contact between the vehicles (POINT VI infra). 2. PLEADINGS Distilled to their purist form and with respect to liability, the collective gravamen of the Notices of Claim and Complaints is that the County failed to conduct a proper traffic study which purportedly would have resulted in a left-turn signal and/or No U-Turn sign at the intersection (Exhibit "E"-Notices of Claim; Exhibit "F"-Summonses and Complaints; Exhibit "G"-Answers"). In the interests of judicial economy, the County "C" fully adopts and incorporates by reference herein co-defendant Cabot Coach's Exhibit -Cabot Coaches Answers to Amended Complaints and Exhibit "D"-Answers of Other Defendants to Amended Complaints. decedents' Insofar as damages are concerned, all Estates allege claims for conscious pain and suffering. There are additional claims for pre-impact terror, denominated as fear of impending death. 3. POSTURE OF THE CASE Discoveryhas been deemed completed, and a joint Note ofIssue was filed on May 11, 2022. A copy is attached as Exhibit "H". This motion is made within 120 days of the filing of theNote of Issue. This Honorable Court, in an e-mail dated April 27, 2022, from Thomas F. Moore, Principal Law Clerk for the Hon. John H. Rouse, suspended Rule 202.8-b's -5- 10 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 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. A copy of the e-mail is annexed hereto as Exhibit "I". 4. CONTENTIONS OF THE COUNTY OF SUFFOLK A. Damages Though as will be discussed below, the Court need not reach the issue, with regard to the issue of damages, the contention of the County of Suffolk is that the claims for conscious pain and suffering and pre-impact terror are incapable of competent proof and must be dismissed. B. Liability The County contends itis entitled to Qualified Immunity in that it had undertaken traffic studies which were more than adequate in nature, and properly deliberated upon. As a result thereof, an engineering judgment was made which was consistent with good traffic study practice, and which addressed in advance the allegations proffered therein. The County further contends that ithad no actual or constructive notice of an alleged problem with limos and U-turns at this intersection. Moreover, that the drivers, Pino and Romeo, were negligent as a matter of law and as well, the sole proximate cause of the accident. Specifically, plaintiffs are collectively claiming that a traffic light should have been in place with a protective green arrow component and/or restriction of U-turns by way of -6- 11 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 signage. In this regard, the County further contends that prior to this accident ithad decided to place a light at the intersection though said light was not technically warranted under the guidelines of the Manual of Uniform Traffic Control Devices (MUTCD). Nevertheless, the approval of same was permitted on the basis of an attempt to proactively project anticipated "J" - traffic volumes five (5) years in advance (Exhibit Dresch, pp. 153-154, 224-225). Said light was a three-phase light, as there was no concomitant provision in the MUTCD for a five-year look-ahead for a left-turn signal. The County further contends that prior to this accident, nobody, whether individually or in a representative capacity, made a request of the County for either a lefthand turn signal or a No U-turn sign. Moreover, at no time was the County ever advised of any alleged issues with respect to limousines making U-turns at this intersection (Dresch, p. 215). Tellingly, before this tragic occurrence, there had not been even one lefthand or U-turn accident at this intersection. Not one (Dresch. p. 144). Thus, the County was not on either actual or intersection" constructive notice of the purported "dangerous which is now being alleged herein. Accordingly, the County should be dismissed from this case on the ground of Qualified Immunity based on its proper and professionally thought-out traffic study; and on the separate ground that there was no actual or constructive notice imparted to the County intersection." of this alleged "dangerous Finally, and perhaps most tellingly, the sole proximate cause of the accident was the actions and/or inactions of the defendant drivers who -7- 12 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 were negligent as a matter of law. Simply stated, the County played absolutely no role in this pocket." tragedy as itsinvolvement is solely as a proverbial "deep Below are excerpts from the deposition testimony of Daniel J. Dresch, Jr., Carlos Pino and Steven Romeo which illuminate the background and buttress the grounds for the County's entitlement to Summary Judgment. 5. DANIEL J. DRESCH, JR. A. Background Daniel J. Dresch, Jr. was deposed in this matter on behalf of the County on July 17, 2019. At the time of the accident, he was the Director of Traffic Engineering and Highway Work Permits for the Suffolk County Department of Public Works (SCDPW). His testimony ran almost 7 hours and consisted of 250 pages. All parties were present, and during the session he was questioned in great detail regarding this particular intersection. Testimony relevant to this application is set forth below. Q: Who is your present employer? A: Suffolk County. * * * Q: What was your title in 2015? A: My title in 2015 was director of traffic engineering and highway work pennits. (Dresch, p. 16) Q: Now, in July of2015, was County Road 48 owned by Suffolk County? A: Yes. -8- 13 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 Q: Was italso maintained by Suffolk County? A: Yes. * * * Q: In July of 2015, was Depot Lane owned by the Town of Southold? A: Yes. Q: And maintained by the Town of Southold? A: Yes. (Dresch, p. 102) Q: Who maintained the light before July I 8, 2015? A: That traffic signal was owned and maintained by the Town of Southold. Q: Is that because of some agreement that the county and the town entered into prior to that date? A: Yes. Q: Are those agreements typical when there are county roads that intersect the town roads? A: Yes (Dresch, pp. 106, 107) Q: Are there any turning lanes at the intersection on County Road 48? A: Yes. (Dresch, p. 103) B. General Traffic Study and Warrant Background Q: Now, can you tell me the names of specific traffic studies, the actual analysis of the data? And this is distinguishable from traffic surveys, which we've agreed was the collection of data. A: We would have stop sign warrant analysis, traffic signal warrant analysis. Q: Any others? -9- 14 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 A: Left-turn phase analysis. (Dresch, p. 58) Q: Is crash history data one of the surveys or data collection methods that were utilized by Suffolk County during the time that you were director? A: Yes. Q: What is the purpose of that data? A: To identify trends, accident trends, at which we could take protective action. (Dresch, pp. 52, 53) Q: Before I go on with traffic studies, I just want to go back to traffic surveys for a moment. Between 2007 and July 18, 2015, while you were director of traffic engineering for Suffolk County, did Suffolk County ever conduct a survey of U-turn volume in relation to a traffic study at an intersection that involved a county road? A: No. Q: Was there a reason why that data had never been collected by Suffolk County during that time period, in relation to a traffic study? A: I don't believe we've ever had a request in that time frame for a matter that involved U-turning vehicles. (Emphasis supplied). (Dresch, pp. 62, 63) Q: With regard to traffic studies, what is the purpose of the traffic signal warrant analysis? A: The purpose of a traffic signal warrant analysis is to determine if the data collected meets the warrants laid out in the National Manual of Uniform Traffic Control Devices. -10- 15 of 98 FILED: SUFFOLK COUNTY CLERK 09/08/2022 12:27 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1041 RECEIVED NYSCEF: 09/08/2022 Q: What is the purpose of the left-turn phase analysis? A: The left-turn phase analysis is a supplemental analysis to determine, in the event of an existing or proposed traffic signal, whether a left-turn phase would be warranted. Q: A left-turn phase, is that a left-turn arrow on a traffic light? A: Yes. Q: What data was typically collected by Suffolk County in advance of a traffic signal warrant analysis during the time that you were director? A: The warrants in the national manual, there are approximately nine of them, some are applicable to some locations, others are applicable to others. Theprimary data that is used is traffic volumes, both on the main road, traffic volumes on the side street, as well as crash history. Q: Are you saying that those are the primary surveys that are utilized in a traffic signal warrant analysis? A: For a typical traffic signal warrant analysis, yes. (Dresch, pp. 63, 64) Q: So then are those the only surveys that are utilized in relation to a traffic signal