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Decided on May 13, 2010
Ct Cl

106350

APPEARANCES:
For Claimants:
FRANCIS M. LETRO, ESQ.
ROBERT L. VOLTZ, ESQ.
For Defendant:
HON. ANDREW M. CUOMO

Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ. and
REYNOLDS E. HAHN, ESQ.
Assistant Attorneys General
For Third-Party Defendant:
BOUVIER PARTNERSHIP, LLP
BY: JOHN F. CANALE, ESQ.
Attorney for Nick Dispenza on the Counterclaim
Philip J. Patti, J.
On April 16, 2002, at approximately 8:07 a.m., Claimants Nick Dispenza and his wife Beth Dispenza were injured when the motorcycle on which they were riding skidded and fell near the intersection of Routes 5 and 20 in the Town of Caledonia. This action, which seeks compensation for their injuries, is based on allegations that the motorcycle went out of control when it encountered paint that had been applied by a New York State Department of Transportation (DOT) [*2]work crew and was still wet. Claimants assert that the State was negligent in failing to post warnings or take other precautions that would have prevented motor vehicles from coming into contact with the dangerously slippery, still-wet paint. In response to the claim, Defendant counterclaimed against Claimant Nick Dispenza, alleging that his own operation of the motorcycle was a proximate cause of the accident. Trial of this action was bifurcated, and this decision deals only with the issue of liability.
FACT WITNESSES
Claimants, who had traveled through this intersection several times in the past, both testified that on the morning of the accident they were traveling from their home in Tonawanda, New York, to the Finger Lakes area. They had no particular plans other than to take a scenic ride on a very nice day. Claimant Nick Dispenza, who indicated that he had 30 years' experience with motorcycles, was operating the 1997 Harley Davidson Road King, and his wife was sitting behind him. The motorcycle had been purchased by Claimant when it was new and was, he stated, in "perfect" condition, having just received its annual spring maintenance. Both Claimants testified that they observed no debris, dead animals or other obstructions on the roadway as they approached the intersection and pulled to a stop at the white stop line (Exhibit 3A). They saw several other vehicles on the roadways, but none of them belonged to DOT.
Nick Dispenza explained that Route 20, as it nears the intersection where the accident occurred, curves slightly to the left and then straightens out before reaching a stop sign and blinking light. The light flashes red for Route 20 and yellow for Route 5. Claimants' route of travel required them to turn right at the intersection onto Route 5 (which at that point becomes Routes 5 and 20 combined). Because they had traveled this route in the past, they were aware that their view of traffic coming from the left (i.e. from further west on Route 5) was partially obstructed by a guiderail and shrubbery. Since it was not possible to see very far down the road in that direction from the stop line, they had assessed that the safest way to proceed was to stay as far right as possible while making the turn. This allowed them to look back over their shoulders and double

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New York Law