CHARY v. STATE 84591A (1999)

This action was commenced to recover damages for injuries sustained by claimant in a head-on automobile accident on a two-lane section of the Southern Tier Expressway (STE).   The accident occurred when a westbound vehicle crossed the center line and struck claimant's eastbound vehicle.   Claimant alleged that the accident was proximately caused by the absence of a barrier between the eastbound and westbound lanes, and that defendant was negligent in failing to design and maintain the two-lane section in a manner that would guard against crossover accidents.

The Court of Claims properly dismissed the claim.   The record supports the court's determination that the decision not to erect a median barrier in the two-lane section of the STE was the result of adequate study and had a reasonable basis (see, Weiss v. Fote, 7 N.Y.2d 579, 589, 200 N.Y.S.2d 409, 167 N.E.2d 63, rearg. denied 8 N.Y.2d 934, 204 N.Y.S.2d 1025, 168 N.E.2d 857;  Light v. State of New York, 250 A.D.2d 988, 989, 672 N.Y.S.2d 543, lv. denied 92 N.Y.2d 807, 678 N.Y.S.2d 593, 700 N.E.2d 1229;  Maricondo v. State of New York, 151 A.D.2d 651, 652, 542 N.Y.S.2d 712, lv. denied 75 N.Y.2d 702, 551 N.Y.S.2d 905, 551 N.E.2d 106).  Although claimant presented expert testimony that a median barrier should have been installed in the area of the accident, “something more than a mere choice between conflicting opinions of experts is required before the State * * * may be charged with a failure to discharge its duty to plan highways for the safety of the traveling public” (Weiss v. Fote, supra, at 588, 200 N.Y.S.2d 409, 167 N.E.2d 63;  see, Light v. State of New York, supra, at 989, 672 N.Y.S.2d 543).

The court properly rejected as untimely claimant's request that it draw an adverse inference against defendant with respect to missing witnesses (see, People v. Gonzalez, 68 N.Y.2d 424, 427-428, 509 N.Y.S.2d 796, 502 N.E.2d 583;  Spoto v. S.D.R. Constr., 226 A.D.2d 202, 204, 641 N.Y.S.2d 20), and claimant failed to make a prima facie showing that an adverse inference should be drawn against defendant with respect to missing documents (see, Cidieufort v. New York City Health & Hosps. Corp., 250 A.D.2d 720, 721, 673 N.Y.S.2d 188;  Fares v. Fox, 198 A.D.2d 396, 397, 603 N.Y.S.2d 892).  Finally, we reject claimant's contention that the manner in which the court conducted the trial was fundamentally unfair.   The court properly exercised its broad authority to control the conduct of the trial (see, Porter v. Saar, 260 A.D.2d 165, 688 N.Y.S.2d 137;  Ingebretsen v. Manha, 218 A.D.2d 784, 631 N.Y.S.2d 72).

Judgment unanimously affirmed without costs.

MEMORANDUM: