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Decided on September 18, 2006
Ct Cl

104937

Claimant's attorney:THE LAW FIRM OF WILLIAM G. SAYEGH, P.C.
BY: ANDREW W. HUMPHREYS, ESQ.
Defendant's attorney:HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Thomas H. Scuccimarra, J.
George and Julia Carlo, the parents of Anthony Carlo, allege in their claim that their son was caused to suffer serious personal injury as a result of the State's negligence in allowing a known dangerous condition to exist on State Route 376 near its intersection on its eastern side with an entrance to a park operated by the Town of East Fishkill Recreation Department. Specifically, they allege that because of the Defendant's failure to properly design and maintain the roadway, and assure that adequate pedestrian crosswalks and the like were constructed, their son Anthony was struck by a car on June 25, 2001 as he attempted to cross the roadway. Trial of the matter was held on January 23, 24, 25, 26, 27 and 30, 2006. This decision relates solely to the issue of liability. [*2]
FINDINGS OF FACT
On June 25, 2001 Anthony Carlo was 13 years old. Although he could not recall any details of his accident at trial, he did remember that he had been to the East Fishkill Recreational Center on a number of occasions, having attended summer camp for many years. He also used the park throughout the year to go fishing, usually on weekends. His normal route when he left the park, either on foot or by bicycle, was from the recreation center's access road intersecting with Route
376. He would walk on the sidewalk on the eastern side of 376 until he got to a separation between two buildings housing Nick's pizzeria and a bank. At that point, he would generally cross Route
376. His family's home was and is on Candy Lane, a local road in a small suburban development off of Unity Street. Unity Street is a larger local road, directly intersecting with Route 376 on the western side of the state road, north of the entrance to the recreation center. Anthony estimated that he had used the recreation area at least 30 times prior to the day of his accident.
Denise Marinaccio, a long time resident in the area, testified concerning her observations of the accident involving Anthony on June 25, 2001. On that day she was going to the First Union Bank on Route 376 to deposit her last paycheck for the school year, traveling northbound on Route
376. The entrance to the bank is just past the entrance to the recreational center. As she was making her right hand turn from Route 376 into the bank parking lot, she saw a boy standing on a berm of grass between the sidewalk in front of the bank parking lot, and Route 376, with a bicycle. As she made her turn she observed him still standing and waiting on this grassy area - he had not stepped off the curb - to the left hand side of a telephone pole. He appeared to be trying to cross Route 376. She parked her car, and heard an impact. She saw a car with a woman getting out on Route 376, blocking any view of the boy. She herself got out, pulling out her cell phone and calling 911. The next time she observed Anthony was when he was lying in the street close to the center yellow line of Route 376, with his bicycle to his side. [See Exhibit 3].
On cross-examination Ms. Marinaccio clarified that she did not pass the boy in order to make her turn into the bank - that is, he was standing further north on the eastern side of 376 of the driveway entrance she entered - and that she was approximately 50 feet away when she first saw him near the sidewalk and the grassy knoll. She could not say whether he had mounted his bicycle. She also could not recall whether when she saw him standing on the grass he was straddling his bicycle, or if he was holding it to his side. The various locations of the entrance to the recreation center, the bank, where the boy was standing, and the path her car took from Route 376 into the bank parking lot were marked on Exhibit MM, an aerial photograph.
Jill Stevenson, a life long Dutchess County resident and a resident of Hopewell Junction for 7 years at the time of the accident, was the driver of the vehicle that struck Anthony. She testified that on June 25, 2001 it was a beautiful sunny day, and she was driving her 1992 Ford Explorer with her eight (8) year old daughter Chloe seated in the rear passenger seat behind the driver. At "around noontime" that day, she was returning home from a friend's house on Creekside Drive - a local road intersecting directly with Route 376 south of the recreation center - and was driving
northbound "not even a mile" on Route 376 when the accident occurred. [T-405-406].[FN1] [*3]
Asked to describe the area of "Hopewell Hamlet"generally, Ms. Stevenson said that in a northbound direction past the entrances to the recreation center and the bank on the eastern side of Route 376, and the intersection of Unity Street on the western side of Route 376, are several shopping areas. Just past the bank entrance on the eastern side of Route 376 is a driveway accessing a Cumberland Farms store, a pizzeria, and several other small retail stores. On the western side of Route 376 heading north, just past Unity Street, there are entrances to a CVS pharmacy and to a Grand Union plaza. Even further to the north State Route 376 comes to a "T"-intersection with State Route 82, and the two State roads overlap for awhile.
Ms. Stevenson was very familiar with the recreation center park, because she coached a team of cheerleaders that had their practices there, and would cheer at the football games held at the park in the Pop Warner program. Additionally, because the cheerleaders generally marched in the parade, she would go to the park on Community Day as well. She noted that she always drove to the recreation center, since her home was "a couple of miles" away. [T-417]. Because she did not walk in the area, she said she was not in a position to know whether there is a crosswalk anywhere in the Hamlet across Route 376. She said that during the parades there were police officers directing traffic, and that "[t]here's always police officers in Hopewell." [T-417].
On June 25, 2001, when Ms. Stevenson first observed Anthony "heading towards [her]
car . . . He came out from . . . near the . . . parking lot from the bank close to where the Cumberland Farms Plaza was . . . he came out from the side . . . he came out of nowhere and he was in the road, and I tried to stop as fast as I could." [T-418-419]. As best she could recall, Anthony was to her right in the road when she first saw him, and was riding his bicycle at the time of the impact. Although she could not say exactly how fast she was going, she ". . . wasn't going fast because it's a busy little Town, so . . . [she] was probably going less than the speed limit." [T

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