Preview
FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015
NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022
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; REPLY
JOELLE DIMONTE; MELISSA A. CRAI; AND ARTHUR A. BELLI, AFFIRMATION
JR., AS PARENT AND NATURAL GUARDIAN OF STEPHANIE
BELLI, DECEASED, AND AS THE ADMINISTRATOR OF THE
ESTATE OF STEPHANIE BELLI, Return Date:
December 14, 2022
Plaintiffs,
- against - Refer To:
Respectfully
Hon. John H. Rouse
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.
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This affirmation is submitted in reply to all opposition papers and most particularly,
Plaintiffs'
the Joint Memorandum of Law in Opposition to Points I through V (Liability) of
the County of Suffolk's Summary Judgment motion. At the outset, the opposition proffered
tea."
does not even rise to the level of "weak It is a mish-mosh of "lets see if this sticks to
wall"
the arguments, hyperbole, and out-and-out mischaracterizations, which fail to rebut the
County's separate and dismissal-worthy defense of (1) Lack of Notice, (2) Qualified
hnmunity and (3) Sole Proximate Cause of the drivers.
THE PLAINTIFF'S INDIVIDUAL AND JOINT OPPOSITION
FAILS TO REBUT THE COUNTY'S ENTITLEMENT TO
SUMMARY JUDGMENT ON THE SEPARATE AND DISTINCT
GROUNDS OF (A) NOTICE, (B) QUALIFIED IMMUNITY
AND (C) SOLE PROXIMATE CAUSE
A. Notice
In this regard, counsel for plaintiff Arundel under whose name the Plaintiff's
Committee opposition was submitted, takes the fact that either side of the intersection of
sight"
County Road 48 and Depot Lane, "has an extensive line of and bizarrely parlays that
lose"
into a "heads we win, tails you argument. Counsel claims that straight, wide roads such
as CR-48 "encouraged speeding because drivers feel more comfortable on roadways with
characteristics,"
those citing Turturro v. City of New York and the testimony of a "traffic
engineer"
who just happens to be the ubiquitous and omnipresent Nicholas Bellizzi, whose
handiwork they are relying upon herein.
Counsel then segues into the never-lacking-for-a-theory Mr. Bellizzi's statement that
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vehicles passing both east and west travel in excess of 55 miles per hour as this is some type
of news, much less relevant to the matter at hand.
Unfortunately, this information is not followed by an admission that in point of fact,
traffic enforcement in this area comes within the purview of the Town of Southold, not the
County of Suffolk.
Q: Does the Southold Police Department have jurisdiction
for enforcing traffic regulations on County Road 48?
A: Yes, we do.
(Exhibit
"A" - Flatley, p. 17, 11. 22-25)
Instead, the next item of non-news proffered by counsel is that County personnel,
"aware"
including engineer Dresch and traffic analyst Hillman were that limousines and
buses frequented the vineyard during the peak summer months. This is followed by a
statement that vehicles alighting from Vineyard 48 had to either (1) make a U-turn at the
Depot Lane intersection; (2) make a U-turn at another intersection farther east; or (3) entering
Depot Lane (northbound), turning around at a nearby industrial area and then returning to
the intersection to enter CR-48 westbound.
Conspicuous by its absence, and no surprise at all, counsel fails to advise that a
vehicle could just as easily make a right-hand turn at Depot Lane, proceed down a mile or
so to Route 25, then make a right-hand turn and proceed westbound parallel to CR-48.
Q: During that time period, was County Road
48 the main route from west to east in that
area?
A: County Road 48 and New York State
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Route 25 were the main east/west roads in
the area.
(Exhibit
"B" - Dresch, p. 140, 11. 15-18)
Q: Did you ever take Route 25 while you
were out on the business of Ultimate Class
Limousine, out in the area we're talking
about, the Cutchogue area?
A: If I had used 25?
Q: Yes.
A: Yes, I did.
(Exhibit
"C" - Pino, p. 333, 11. 9-15)
Q: You were familiar with Route 25, am I
correct?
A: Yes.
Q: You knew that Route 25 essentially
parallels Route 48, am I correct?
A: Yes.
p. 1.22 - p. 35 1.
(Pino, 350, 1, 3)
vehicle"
The opposition then morphs into whether or not a "long wheel-based could
complete a U-turn at the subject intersection in a single continuous 180 degree movement.
"D" -
Mr. Dresch has testified that in fact itcan be done (Exhibit Dresch Grand Jury
Testimony) but once again counsel for the Plaintiff's Committee either charitably misses or
blatantly ignores the most salient point, which is that this case involves an abject failure to
yield the right-of-way, pure and simple. Mr. Pino has admitted under oath that he had been
to Vineyard 48 and executed this U-turn at least four to six times, perhaps even more.
Q: How many times had you been to Vineyard
48 before July 18, 2015?
A: Don't recall.
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Q: More than once?
A: Four to six times
.
Q: More than six times?
MR. MONTIGLIO: Four to six times.
MR. JULIANO: I know that.
A: Four to six times.
Q: More than six times?
A: I'm not sure.
Q: Could it have been more than ten times?
A: I'm not sure.
(Pino, p. 80, 11. 3-15)
There is nothing in the testimony that confirms, per the plaintiffs, "the turn was
movement."
slowed by inability to complete the maneuver in one continuous (sic) To quote
Mr. Pino once again:
Q: At the point of impact, where was the
physical front, the headlights, if you will,
of the limousine facing, using those
directionals or any combination?
A: When I started to do the turn to left, I was
going to be facing north.
* * *
Q: Had you completed your turn right before
the moment of impact? Had you
completed - -
A: My turn or my U-turn?
Q: Not the U-turn, the turn.
A: No.
Q: No?
A: No.
p. 1. 10 - p. 1. 22)
(Pino, 193, 194,
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Back to the line of sight issue:
Q: How far could you see in the eastbound
direction when you were looking east?
While you were stopped at the intersection
waiting to make that U-turn, how far could
you look east; how far could you see?
A: It was clear, I could see.
(Pino, p. 127, 11. 13-18)
Though there is no question the Town could have requested the County to make a
recommendation for a No U-turn sign, the fact of the matter is that no such recommendation
was ever made by not only the Town, but anybody or any other entity as well. This has
"E" -
clearly been set out by Mr. Dresch (Exhibit Affidavit of Daniel J. Dresch, Jr., at
tea"
paragraph 44). Nevertheless, in tenns of the failure to rise to "weak level, counsel for
the plaintiffs refers to complaints that were made 13 years before the accident and involving
CR-48"
"difficulty crossing (by pedestrians!)(Exhibit "F"), as well as speed (Exhibit "G"),
not with respect to any issues pertaining to perceived limitations of limos making U-turns,
much less requests for a left-hand turn signal.
In that regard, plaintiffs (though in particular counsel for Baruch) then grasp at
proverbial straws by adopting claims of William Shipman, a frequent attendee of Town of
Southold Board Meetings of various stripes. Reference is made to an August 12, 2012 e-mail
to the Town of Southold (and not the County) referencing a U-turn at the "subject
intersection.".
The problem is that Mr. Shipman's Affidavit (Exhibit "H") specifically states in
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pertinent part that he was referring to a "limo attempting to make a U-turn just west of the
Vineyard"
(emphasis supplied). The Court will take judicial notice that the intersection of
Depot Lane and CR-48 is east of the Vineyard. An honest mistake? Or a blatant attempt to
mislead the Court?
We are then regated with Mr. Shipman's apparent appearance at ten prior Southold
(not Suffolk County) Town Board Meetings as well as before the Southold Town Planning
Board on a number of occasions. Yet nowhere does counsel refer to any notice on the part
of the County of Suffolk other than the incredible assertion that Albert Krupski, a Town
Board Member in October of 2012, was subsequently (January, 2013) elected to the County
Legislature. He was present at the October session of the Town Board, and somehow that
is notice to the County? Really? Taken to its illogical conclusion, that means that an
employer/govermnent agency is bound by knowledge that any of its employees/elected
officials obtains at any time in their prior employment/office holdings, which is both
fantastical and nonsensical.
Though counsel cites Supervisor Russell's Interrogatories that "representatives from
present"
the County of Suffolk were at some of the Town Board Meetings, they
unsurprisingly fail to advise the Court that during discovery the Plaintiff's Committee never
"representatives."
asked for clarification as to person, time, place and authority, ifany, of the
The final insanity comes in trying to charge Messrs. Krupski and Dresch with
knowledge and responsibility despite a complete dearth of complaints, not to mention crash
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history. To quote Mr. Krupski's testimony (Exhibit "I") along these lines and relative to his
understanding of the alleged problem as a member of the Town Board:
Q: At any time prior to the accident, did you
ever advise Daniel Dresch or anyone from
Suffolk County DPW of the Shipman
complaints about U-turns that you heard at
the town board meeting in October of
2012?
A: No.
Q: Is there a reason why you did not?
A: I thought that was a local law enforcement
issue.
Q: The reason why you did not advise Daniel
Dresch or the DPW of the Shipman
complaints about U-turns on County road
48 is because you thought it was a local
law enforcement issue?
A: That's correct.
p. 1. 19 -p. 1.
(Krupski, 57, 58, 8)
B. Qualified Immunity
With respect to Qualified Immunity and Mr. Dresch, the Court is respectfully referred
to his Affidavit (Exhibit "E") as well as the attached Grand Jury testimony (Exhibit "D")
which further supports the County's position and rebuts the claims of the Plaintiff's
Committee.
In this regard, Mr. Dresch has explained that there is no differentiation between U and
left-hand turns under the MUTCD. Once again conspicuous by its absence is any reference
in the Plaintiff's Committee's papers regarding the terms MUTCD, ITE, and most
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warrants."
conspicuously and egregiously, "traffic
As Mr. Dresch explained in his Affidavit, decisions regarding the placing of traffic
signals and signs cannot be based on emotion or politics but solely on black and white
numbers and engineering protocol. This intersection did not even make the warrants for a
three-phase light, much less a left-hand turn light. Moreover, "crash history is the life blood
"
of a traffic study, per Mr. Dresch
Q: So, for instance, for a no U-turn sign what
consideration would go into that as a
recommendation?
A: Nearly every traffic study, the lifeblood of
every traffic study is crash data. We, as
a standard, look at the latest three years of
crash data at nearly every traffic study that
we initiate. That way we can get an idea
of the level of priority we should be
assigning to a particular project.
In the case of, specifically of U-turns, we
would also include turning movement
counts to see what conflicts may be
happening in an intersection. We would
certainly look at the geometics of an
intersection , things of that nature. And
just be elaborate a little more - -
Q: Sure.
A: (Continuing) we would take into account
what information we are provided by the
complainant. Sometimes letters or
communications that we get from
complainants, what they's requesting is not
really the important thing, it's really the
conditions they are describing. Because
our job is to see what is happening and
determine what the best course of action
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is, as opposed to sometimes we get
requests from people, oh, we should have
X, Y and Z at this location. Well, okay,
but tell me what you are seeing or what is
happening there. That is really the
valuable information (emphasis supplied).
Grand p. 1. 9 - p. 1. 1 1)
(Dresch, Jury, 71, 72,
The fact that there were no left or U-turn accidents for at least three years prior to this
particular occurrence (and actually a number of years before that), precluded any realistic
attempt to place a U-turn sign. In this regard, the Court is respectfully referred to the
testimony of Vincent Orlando (Exhibit "I", Town of Southold Highway Superintendent,
who when questioned by the Grand Jury stated as follows:
Q: And what prohibitions are there is any on
the use of U-turns at the Depot Lane and
Rt. 48 intersection?
A: None.
Q: Now, given your experience both in the
Highway Department as well as living in
the Southold community and on the
Southold Town Council, what need is
if for the permitted use of U-
there, any,
turns on Rt. 48?
A: U-turns would hinder a lot of people to get
to their residence.
Q: When you say U-turns, do you mean
prohibitions of U-turns would hinder?
A: if were not allowed to make U-
Yes, they
turn on Rt. 48 a lot of people would not be
able to get to their residency. They would
have to find a different route, because
there is a lot of subdivisions in between
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the lights. So have to make a U-
long they
turn to get back west to get to their
residences.
Q: So if they couldn't make a U-turn, what
would they have to do?
A: They would have to do something,
probably not rational, make a right-hand
turn at the light, find the first driveway,
pull in that driveway, back out, go to the
light, make a left and go through, So they
would be forced to do, you know, people
are creatures of so make U-
habit, they
turns forever, so, you know, it would
change their traffic pattern of getting home
and make it more difficult.
Grand Exhibit p. 1. 7 - p. 1.
(Orlando, Jury, "J", 12, 13, 9)
"opinion"
The Plaintiff's Committee goes on to rely on the of Mr. Bellizzi that (1) the
"hazard"
County was on notice ofthe posted by limousines and buses making U-turns as well
as the frequent use of the intersection by long wheel-based vehicles to make such turns; (2)
that the traffic studies were inadequate because they did not separate U-turns or stretch
vehicles and were conducted at non peak times; (3) that the County should have concluded
that a No U-turn sign and/or directional signal was necessary to alleviate the aforesaid
"hazard"
; and (4) that misjudgments by drivers resulting in an accident such as occurred
herein are a foreseeable risk of the County's alleged faulty design and planning.
The plaintiffs then quote Mr. Bellizzi as stating that this was a "substantial
accident"
contributing cause of the even though that is a legal conclusion outside the realm
of an expert.
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"hazard"
Boiled down to its simplest form, plaintiffs take the position that there was a
despite the fact that there is absolutely no history of left or U-turn accidents at this
intersection. Moreover, as stated in Robert Hillman's testimony, the idea is to conduct traffic
studies not at a peak time frame, but on an average day (Hillman EBT, Exhibit "K", p. 61,
11. 9-24; Dresch Grand Jury, Exhibit "D", pp. 135-136). Worth noting once again is the total
inexplicable absence of any acknowledgment by the Plaintiff's Committee or Mr. Bellizzi
of the MUTCD, the ITE and the mandated warrants which control whether or not traffic
control devices are to be placed at any particular intersection.
Also absent is any recitation of requests, much less complaints, with respect to either
a No U-turn sign or a left-hand turn arrow. On top of that, the last correspondence with
respect to this intersection went all the way back to about 13 years before the accident.
Complaints were absent in the 2002 - 2015 time the actions in
completely frame; thus,
undertaking, on its own, additional traffic studies and the installation of a traffic light based
ahead"
on a five year "look provision were due to laudable proactivity on the County's part.
C. Proximate Cause
The Plaintiff's Committee through Mr. Bellizzi similarly takes the position that there
"hazard" "hazard"
was a extant when in point of fact the only was the failure of Mr. Pino
to yield the right-of-way. He and perhaps Mr. Romeo as well, utterly failed to "see what was
seen."
there to be That is the sole reason for the happening of this accident.
Points of Law
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Relative to the plaintiff's Points of Law, Point I deals with the threshold for Summary
Judgment motions, most particularly, issue finding. It is respectfully submitted that there is
"find,"
no issue to insofar as the County decided to install a traffic light on its own, and in
doing so, came to the cogent engineering conclusion that the required MUTCD warrants
ahead"
were not met for its installation save for the five year "look provision. As explained
by Mr. Dresch in his Grand Jury testimony (Exhibit "D", pp. 136-137), there is no
ahead"
concomitant "look provision for left-hand or U-tums, most notably with regard to a
total lack of crash history such as existed here.
Moreover, plaintiff's Point II is beyond disingenuous, insofar as counsel never
"representatives"
identified the who allegedly spoke to Supervisor Russell, much less what
they said. Mr. Shipman's alleged discussions with then-Southold Trustee (not Suffolk
County Legislator) Al Krupski is also devoid of any particulars such as time, place and exact
discussion.
The Plaintiff's Committee's adoption of Mr. Shipman's recitation of events at the time
of the October 9, 2012 Town Board Meeting is also completely flawed. In the first instance,
despite counsel's representation to the Court, Mr. Shipman was not referring to the "subject
intersection"
because he related an alleged incident that took place "just west of the Vineyard
48."
Vineyard 48 itself was actually west of the Depot Lane/CR-48 intersection. The
weekend accident to which Mr. Shipman refers was not even a U or left-turn accident.
On October John P. Hinton of Horseshoe Drive· attempted to cross CR-48
6, 2012,
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from Depot Lane and failed to yield the right-of-way to a vehicle owned and operated by
John M. Whitacre of Darien, Connecticut, who was proceeding eastbound on CR-48. The
accident diagram shows that this was a right-angle incident which, of course, is contrary to
Mr. Shipman's representation to the plaintiffs. Attached hereto, made a part hereof and
"L"
marked Exhibit is the Police Accident Report for that mishap. It was the only Police
Accident Report produced in discovery, and as noted above, belies Mr. Shipman's assertions
as to the happening of that accident.
In short, the Plaintiff's Committee has brought absolutely nothing to the fore which
indicates that there was a prior accident history in terms of U or left hand turns at the
intersection of Depot Lane and CR-48. At least counsel admits in his footnote on page 18
that proof of similar accidents is not absolutely required but an absence of prior accidents is
least"
"some indication at that the highway is reasonably safe. In this instance, it is
respectfully submitted that it was a situation where the lack of accidents was more than
indication,"
"some but rather bespoke a situation where only by egregious driverjudgmental
error could and did this particular traffic accident transpire.
Boiling things down once again to itssimplest form, plaintiff's position is that (1) Mr.
Shipman complained about limousines, buses and U-turns to the Southold Town Board; and
(2) somehow that was notice to the County by the mere fact of Mr. Krupski being a Town
Board Member who was subsequently elected to the Suffolk County Legislature.
That said, Mr. Krupski's testimony in this regard is set forth as follows:
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Q: At any time prior to the accident, did you
ever advise Daniel Dresch or anyone from
Suffolk County DPW of the Shipman
Preview
FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 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; REPLY JOELLE DIMONTE; MELISSA A. CRAI; AND ARTHUR A. BELLI, AFFIRMATION JR., AS PARENT AND NATURAL GUARDIAN OF STEPHANIE BELLI, DECEASED, AND AS THE ADMINISTRATOR OF THE ESTATE OF STEPHANIE BELLI, Return Date: December 14, 2022 Plaintiffs, - against - Refer To: Respectfully Hon. John H. Rouse 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. .t- 1 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 This affirmation is submitted in reply to all opposition papers and most particularly, Plaintiffs' the Joint Memorandum of Law in Opposition to Points I through V (Liability) of the County of Suffolk's Summary Judgment motion. At the outset, the opposition proffered tea." does not even rise to the level of "weak It is a mish-mosh of "lets see if this sticks to wall" the arguments, hyperbole, and out-and-out mischaracterizations, which fail to rebut the County's separate and dismissal-worthy defense of (1) Lack of Notice, (2) Qualified hnmunity and (3) Sole Proximate Cause of the drivers. THE PLAINTIFF'S INDIVIDUAL AND JOINT OPPOSITION FAILS TO REBUT THE COUNTY'S ENTITLEMENT TO SUMMARY JUDGMENT ON THE SEPARATE AND DISTINCT GROUNDS OF (A) NOTICE, (B) QUALIFIED IMMUNITY AND (C) SOLE PROXIMATE CAUSE A. Notice In this regard, counsel for plaintiff Arundel under whose name the Plaintiff's Committee opposition was submitted, takes the fact that either side of the intersection of sight" County Road 48 and Depot Lane, "has an extensive line of and bizarrely parlays that lose" into a "heads we win, tails you argument. Counsel claims that straight, wide roads such as CR-48 "encouraged speeding because drivers feel more comfortable on roadways with characteristics," those citing Turturro v. City of New York and the testimony of a "traffic engineer" who just happens to be the ubiquitous and omnipresent Nicholas Bellizzi, whose handiwork they are relying upon herein. Counsel then segues into the never-lacking-for-a-theory Mr. Bellizzi's statement that -2- 2 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 vehicles passing both east and west travel in excess of 55 miles per hour as this is some type of news, much less relevant to the matter at hand. Unfortunately, this information is not followed by an admission that in point of fact, traffic enforcement in this area comes within the purview of the Town of Southold, not the County of Suffolk. Q: Does the Southold Police Department have jurisdiction for enforcing traffic regulations on County Road 48? A: Yes, we do. (Exhibit "A" - Flatley, p. 17, 11. 22-25) Instead, the next item of non-news proffered by counsel is that County personnel, "aware" including engineer Dresch and traffic analyst Hillman were that limousines and buses frequented the vineyard during the peak summer months. This is followed by a statement that vehicles alighting from Vineyard 48 had to either (1) make a U-turn at the Depot Lane intersection; (2) make a U-turn at another intersection farther east; or (3) entering Depot Lane (northbound), turning around at a nearby industrial area and then returning to the intersection to enter CR-48 westbound. Conspicuous by its absence, and no surprise at all, counsel fails to advise that a vehicle could just as easily make a right-hand turn at Depot Lane, proceed down a mile or so to Route 25, then make a right-hand turn and proceed westbound parallel to CR-48. Q: During that time period, was County Road 48 the main route from west to east in that area? A: County Road 48 and New York State -3- 3 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 Route 25 were the main east/west roads in the area. (Exhibit "B" - Dresch, p. 140, 11. 15-18) Q: Did you ever take Route 25 while you were out on the business of Ultimate Class Limousine, out in the area we're talking about, the Cutchogue area? A: If I had used 25? Q: Yes. A: Yes, I did. (Exhibit "C" - Pino, p. 333, 11. 9-15) Q: You were familiar with Route 25, am I correct? A: Yes. Q: You knew that Route 25 essentially parallels Route 48, am I correct? A: Yes. p. 1.22 - p. 35 1. (Pino, 350, 1, 3) vehicle" The opposition then morphs into whether or not a "long wheel-based could complete a U-turn at the subject intersection in a single continuous 180 degree movement. "D" - Mr. Dresch has testified that in fact itcan be done (Exhibit Dresch Grand Jury Testimony) but once again counsel for the Plaintiff's Committee either charitably misses or blatantly ignores the most salient point, which is that this case involves an abject failure to yield the right-of-way, pure and simple. Mr. Pino has admitted under oath that he had been to Vineyard 48 and executed this U-turn at least four to six times, perhaps even more. Q: How many times had you been to Vineyard 48 before July 18, 2015? A: Don't recall. -4- 4 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 Q: More than once? A: Four to six times . Q: More than six times? MR. MONTIGLIO: Four to six times. MR. JULIANO: I know that. A: Four to six times. Q: More than six times? A: I'm not sure. Q: Could it have been more than ten times? A: I'm not sure. (Pino, p. 80, 11. 3-15) There is nothing in the testimony that confirms, per the plaintiffs, "the turn was movement." slowed by inability to complete the maneuver in one continuous (sic) To quote Mr. Pino once again: Q: At the point of impact, where was the physical front, the headlights, if you will, of the limousine facing, using those directionals or any combination? A: When I started to do the turn to left, I was going to be facing north. * * * Q: Had you completed your turn right before the moment of impact? Had you completed - - A: My turn or my U-turn? Q: Not the U-turn, the turn. A: No. Q: No? A: No. p. 1. 10 - p. 1. 22) (Pino, 193, 194, -5- 5 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 Back to the line of sight issue: Q: How far could you see in the eastbound direction when you were looking east? While you were stopped at the intersection waiting to make that U-turn, how far could you look east; how far could you see? A: It was clear, I could see. (Pino, p. 127, 11. 13-18) Though there is no question the Town could have requested the County to make a recommendation for a No U-turn sign, the fact of the matter is that no such recommendation was ever made by not only the Town, but anybody or any other entity as well. This has "E" - clearly been set out by Mr. Dresch (Exhibit Affidavit of Daniel J. Dresch, Jr., at tea" paragraph 44). Nevertheless, in tenns of the failure to rise to "weak level, counsel for the plaintiffs refers to complaints that were made 13 years before the accident and involving CR-48" "difficulty crossing (by pedestrians!)(Exhibit "F"), as well as speed (Exhibit "G"), not with respect to any issues pertaining to perceived limitations of limos making U-turns, much less requests for a left-hand turn signal. In that regard, plaintiffs (though in particular counsel for Baruch) then grasp at proverbial straws by adopting claims of William Shipman, a frequent attendee of Town of Southold Board Meetings of various stripes. Reference is made to an August 12, 2012 e-mail to the Town of Southold (and not the County) referencing a U-turn at the "subject intersection.". The problem is that Mr. Shipman's Affidavit (Exhibit "H") specifically states in -6- 6 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 pertinent part that he was referring to a "limo attempting to make a U-turn just west of the Vineyard" (emphasis supplied). The Court will take judicial notice that the intersection of Depot Lane and CR-48 is east of the Vineyard. An honest mistake? Or a blatant attempt to mislead the Court? We are then regated with Mr. Shipman's apparent appearance at ten prior Southold (not Suffolk County) Town Board Meetings as well as before the Southold Town Planning Board on a number of occasions. Yet nowhere does counsel refer to any notice on the part of the County of Suffolk other than the incredible assertion that Albert Krupski, a Town Board Member in October of 2012, was subsequently (January, 2013) elected to the County Legislature. He was present at the October session of the Town Board, and somehow that is notice to the County? Really? Taken to its illogical conclusion, that means that an employer/govermnent agency is bound by knowledge that any of its employees/elected officials obtains at any time in their prior employment/office holdings, which is both fantastical and nonsensical. Though counsel cites Supervisor Russell's Interrogatories that "representatives from present" the County of Suffolk were at some of the Town Board Meetings, they unsurprisingly fail to advise the Court that during discovery the Plaintiff's Committee never "representatives." asked for clarification as to person, time, place and authority, ifany, of the The final insanity comes in trying to charge Messrs. Krupski and Dresch with knowledge and responsibility despite a complete dearth of complaints, not to mention crash -7- 7 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 history. To quote Mr. Krupski's testimony (Exhibit "I") along these lines and relative to his understanding of the alleged problem as a member of the Town Board: Q: At any time prior to the accident, did you ever advise Daniel Dresch or anyone from Suffolk County DPW of the Shipman complaints about U-turns that you heard at the town board meeting in October of 2012? A: No. Q: Is there a reason why you did not? A: I thought that was a local law enforcement issue. Q: The reason why you did not advise Daniel Dresch or the DPW of the Shipman complaints about U-turns on County road 48 is because you thought it was a local law enforcement issue? A: That's correct. p. 1. 19 -p. 1. (Krupski, 57, 58, 8) B. Qualified Immunity With respect to Qualified Immunity and Mr. Dresch, the Court is respectfully referred to his Affidavit (Exhibit "E") as well as the attached Grand Jury testimony (Exhibit "D") which further supports the County's position and rebuts the claims of the Plaintiff's Committee. In this regard, Mr. Dresch has explained that there is no differentiation between U and left-hand turns under the MUTCD. Once again conspicuous by its absence is any reference in the Plaintiff's Committee's papers regarding the terms MUTCD, ITE, and most -8- 8 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 warrants." conspicuously and egregiously, "traffic As Mr. Dresch explained in his Affidavit, decisions regarding the placing of traffic signals and signs cannot be based on emotion or politics but solely on black and white numbers and engineering protocol. This intersection did not even make the warrants for a three-phase light, much less a left-hand turn light. Moreover, "crash history is the life blood " of a traffic study, per Mr. Dresch Q: So, for instance, for a no U-turn sign what consideration would go into that as a recommendation? A: Nearly every traffic study, the lifeblood of every traffic study is crash data. We, as a standard, look at the latest three years of crash data at nearly every traffic study that we initiate. That way we can get an idea of the level of priority we should be assigning to a particular project. In the case of, specifically of U-turns, we would also include turning movement counts to see what conflicts may be happening in an intersection. We would certainly look at the geometics of an intersection , things of that nature. And just be elaborate a little more - - Q: Sure. A: (Continuing) we would take into account what information we are provided by the complainant. Sometimes letters or communications that we get from complainants, what they's requesting is not really the important thing, it's really the conditions they are describing. Because our job is to see what is happening and determine what the best course of action -9- 9 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 is, as opposed to sometimes we get requests from people, oh, we should have X, Y and Z at this location. Well, okay, but tell me what you are seeing or what is happening there. That is really the valuable information (emphasis supplied). Grand p. 1. 9 - p. 1. 1 1) (Dresch, Jury, 71, 72, The fact that there were no left or U-turn accidents for at least three years prior to this particular occurrence (and actually a number of years before that), precluded any realistic attempt to place a U-turn sign. In this regard, the Court is respectfully referred to the testimony of Vincent Orlando (Exhibit "I", Town of Southold Highway Superintendent, who when questioned by the Grand Jury stated as follows: Q: And what prohibitions are there is any on the use of U-turns at the Depot Lane and Rt. 48 intersection? A: None. Q: Now, given your experience both in the Highway Department as well as living in the Southold community and on the Southold Town Council, what need is if for the permitted use of U- there, any, turns on Rt. 48? A: U-turns would hinder a lot of people to get to their residence. Q: When you say U-turns, do you mean prohibitions of U-turns would hinder? A: if were not allowed to make U- Yes, they turn on Rt. 48 a lot of people would not be able to get to their residency. They would have to find a different route, because there is a lot of subdivisions in between -10- 10 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 the lights. So have to make a U- long they turn to get back west to get to their residences. Q: So if they couldn't make a U-turn, what would they have to do? A: They would have to do something, probably not rational, make a right-hand turn at the light, find the first driveway, pull in that driveway, back out, go to the light, make a left and go through, So they would be forced to do, you know, people are creatures of so make U- habit, they turns forever, so, you know, it would change their traffic pattern of getting home and make it more difficult. Grand Exhibit p. 1. 7 - p. 1. (Orlando, Jury, "J", 12, 13, 9) "opinion" The Plaintiff's Committee goes on to rely on the of Mr. Bellizzi that (1) the "hazard" County was on notice ofthe posted by limousines and buses making U-turns as well as the frequent use of the intersection by long wheel-based vehicles to make such turns; (2) that the traffic studies were inadequate because they did not separate U-turns or stretch vehicles and were conducted at non peak times; (3) that the County should have concluded that a No U-turn sign and/or directional signal was necessary to alleviate the aforesaid "hazard" ; and (4) that misjudgments by drivers resulting in an accident such as occurred herein are a foreseeable risk of the County's alleged faulty design and planning. The plaintiffs then quote Mr. Bellizzi as stating that this was a "substantial accident" contributing cause of the even though that is a legal conclusion outside the realm of an expert. -11- 11 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 "hazard" Boiled down to its simplest form, plaintiffs take the position that there was a despite the fact that there is absolutely no history of left or U-turn accidents at this intersection. Moreover, as stated in Robert Hillman's testimony, the idea is to conduct traffic studies not at a peak time frame, but on an average day (Hillman EBT, Exhibit "K", p. 61, 11. 9-24; Dresch Grand Jury, Exhibit "D", pp. 135-136). Worth noting once again is the total inexplicable absence of any acknowledgment by the Plaintiff's Committee or Mr. Bellizzi of the MUTCD, the ITE and the mandated warrants which control whether or not traffic control devices are to be placed at any particular intersection. Also absent is any recitation of requests, much less complaints, with respect to either a No U-turn sign or a left-hand turn arrow. On top of that, the last correspondence with respect to this intersection went all the way back to about 13 years before the accident. Complaints were absent in the 2002 - 2015 time the actions in completely frame; thus, undertaking, on its own, additional traffic studies and the installation of a traffic light based ahead" on a five year "look provision were due to laudable proactivity on the County's part. C. Proximate Cause The Plaintiff's Committee through Mr. Bellizzi similarly takes the position that there "hazard" "hazard" was a extant when in point of fact the only was the failure of Mr. Pino to yield the right-of-way. He and perhaps Mr. Romeo as well, utterly failed to "see what was seen." there to be That is the sole reason for the happening of this accident. Points of Law -12- 12 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 Relative to the plaintiff's Points of Law, Point I deals with the threshold for Summary Judgment motions, most particularly, issue finding. It is respectfully submitted that there is "find," no issue to insofar as the County decided to install a traffic light on its own, and in doing so, came to the cogent engineering conclusion that the required MUTCD warrants ahead" were not met for its installation save for the five year "look provision. As explained by Mr. Dresch in his Grand Jury testimony (Exhibit "D", pp. 136-137), there is no ahead" concomitant "look provision for left-hand or U-tums, most notably with regard to a total lack of crash history such as existed here. Moreover, plaintiff's Point II is beyond disingenuous, insofar as counsel never "representatives" identified the who allegedly spoke to Supervisor Russell, much less what they said. Mr. Shipman's alleged discussions with then-Southold Trustee (not Suffolk County Legislator) Al Krupski is also devoid of any particulars such as time, place and exact discussion. The Plaintiff's Committee's adoption of Mr. Shipman's recitation of events at the time of the October 9, 2012 Town Board Meeting is also completely flawed. In the first instance, despite counsel's representation to the Court, Mr. Shipman was not referring to the "subject intersection" because he related an alleged incident that took place "just west of the Vineyard 48." Vineyard 48 itself was actually west of the Depot Lane/CR-48 intersection. The weekend accident to which Mr. Shipman refers was not even a U or left-turn accident. On October John P. Hinton of Horseshoe Drive· attempted to cross CR-48 6, 2012, -13- 13 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 from Depot Lane and failed to yield the right-of-way to a vehicle owned and operated by John M. Whitacre of Darien, Connecticut, who was proceeding eastbound on CR-48. The accident diagram shows that this was a right-angle incident which, of course, is contrary to Mr. Shipman's representation to the plaintiffs. Attached hereto, made a part hereof and "L" marked Exhibit is the Police Accident Report for that mishap. It was the only Police Accident Report produced in discovery, and as noted above, belies Mr. Shipman's assertions as to the happening of that accident. In short, the Plaintiff's Committee has brought absolutely nothing to the fore which indicates that there was a prior accident history in terms of U or left hand turns at the intersection of Depot Lane and CR-48. At least counsel admits in his footnote on page 18 that proof of similar accidents is not absolutely required but an absence of prior accidents is least" "some indication at that the highway is reasonably safe. In this instance, it is respectfully submitted that it was a situation where the lack of accidents was more than indication," "some but rather bespoke a situation where only by egregious driverjudgmental error could and did this particular traffic accident transpire. Boiling things down once again to itssimplest form, plaintiff's position is that (1) Mr. Shipman complained about limousines, buses and U-turns to the Southold Town Board; and (2) somehow that was notice to the County by the mere fact of Mr. Krupski being a Town Board Member who was subsequently elected to the Suffolk County Legislature. That said, Mr. Krupski's testimony in this regard is set forth as follows: - I 4- 14 of 30 FILED: SUFFOLK COUNTY CLERK 12/16/2022 04:43 PM INDEX NO. 611214/2015 NYSCEF DOC. NO. 1257 RECEIVED NYSCEF: 12/16/2022 Q: At any time prior to the accident, did you ever advise Daniel Dresch or anyone from Suffolk County DPW of the Shipman