Claimant Dilafruz Djumaeva commenced this wrongful death action individually and as administratrix of the estate of Zafar Rustamov (decedent). A bifurcated, liability only trial of this claim was conducted virtually on June 3, 2025 and in-person on June 4, 2025 upon stipulation of the parties. Claimant offered Exhibits 1 through 34, 37 through 39, and 41 through 43 ^[FN1] which were received into evidence upon stipulation of the parties. Marked versions of several exhibits were also received into evidence during the trial as exhibits 1A through 1E, 14A, 33A, 34A through 34D, and 37A through 37E. At the start of trial, the parties stipulated that claimant has standing to bring this claim. Claimant offered the testimony of accident reconstruction specialist Michael Cei and arborist Bill Logan. By consent of the parties, defendant offered out of order the testimony of two members of the New York State Police [*2]Department: Lieutenant Roy Kievit and Trooper Steven Gill. At the close of claimant's proof, defendant moved for a directed verdict. Claimant opposed the motion and the Court reserved decision. Defendant offered the testimony of David Chomycz, an Acting Resident Engineer with the New York State Department of Transportation (DOT). After defendant rested, it renewed its motion for a directed verdict. At the close of all proof, the Court permitted the parties to submit posttrial memoranda.

After listening to the testimony of the witnesses and observing their demeanor as they testified, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court finds that claimant has proven liability on the claim for negligence by a preponderance of the credible evidence.

On December 24, 2017, sometime before 3:00 a.m., decedent was driving a 2015 Toyota Camry on the Taconic State Parkway ^[FN2] in one of the northbound lanes (see Collision Reconstruction Unit Report, Exh 2, at 224).^[FN3] Around mile marker 35.9, decedent struck a large fallen tree that had fallen across the entire northbound side of the road and into one of the southbound lanes. The tree was partially elevated off the road by the center guiderail and its branches. It was unclear whether the tree had already fallen across the road or fell onto decedent's vehicle. After the collision, decedent's vehicle "traveled off the right shoulder, striking an earth embankment and rocks, causing [the vehicle] to roll onto its roof and continue to its position of uncontrolled final rest on the broken white lane line of the northbound lanes" (id.). Decedent was pronounced dead at the scene "from blunt force trauma to the head" (id. at 226). Decedent's rear seat passenger "was able to climb out of the vehicle and was subsequently transported to Westchester Medical Center with non-life threatening injuries" (id. at 224-225). Subsequently, a second vehicle traveling northbound in the right lane struck the tree and continued under it. Numerous photographs were taken showing the tree and the vehicles as they existed after the accident (see State Photos, Exh 1).

Michael Cei, an expert in accident reconstruction, testified that he reviewed the police report, collision reconstruction report, and photographs taken by the New York State police in preparation for trial. Cei also reviewed the Toyota Carola's design specifications and the information collected from the vehicle's electronic recorder data or "black box." Cei determined that the vehicle's headlights could produce "meaningful light" out to 300 feet away from the vehicle (Trial Trans, Vol 1, at 21). There was no overhead illumination where the collision took place that would have provided more light than the headlights. While approaching the tree, decedent's speed varied between 62 and 59 miles per hour and he did not apply his brakes.

Cei created two animations of decedent's approach to the tree.^[FN4] The first video reconstructed the accident using the speeds recorded by the black box (see Video Animation, Exh 38). At 61 miles per hour, decedent would have needed 344 feet between his vehicle and [*3]the tree to "perceive, react, and safely stop" and would not have been able to "perceive and recognize the tree" until he was 125 feet away (id.). The second video shows what would have happened had decedent been driving at the posted 55 miles per hour speed limit (see Video Animation, Exh 39). Under that scenario, decedent would have needed 295.7 feet between his vehicle and the tree to safely "perceive, react, and stop" and still would not have been able to "perceive and recognize" the tree until he was 125 feet away (id.).

Cei testified that the perception distance was less than the headlight distance because dark objects that are not independently illuminated and do not contain light colors cannot be perceived until 125 feet away at most. Trees are such objects. In Cei's professional opinion, the accident was unavoidable because decedent did not have enough time to perceive and react to the tree before the collision. Cei's opinion would have been the same if decedent was traveling at the posted speed limit. Cei also believed that, by the time decedent was close enough to the tree to perceive it, he no longer had time to begin braking. Additionally, because the tree was elevated off the road, the headlights were less useful in allowing decedent to perceive the tree.

Portions of the depositions of three DOT employees were admitted into evidence and read into the record. At his deposition, Assistant Resident Engineer David Chomycz stated that he began his employment with DOT in 1999. At some point during his tenancy with DOT, he took a two-day training course on "hazardous trees" (Chomycz Depo, Exh 41, at 10). The course taught him what to look for when determining tree health including "lack of leaves, lack of bark, exposed roots, cracks or other defects" (id. at 11). Chomycz did not personally inspect any trees but would look out for trees while driving and notify a supervisor if he saw any defects. Chomycz stated that DOT's written rules and protocols required them to check for dead or hazardous trees "at least twice a year" (id. at 53).^[FN5] However, Chomycz "continually check[ed] for defects" in the roadway, including the trees (id. at 87). Chomycz believed that the tree in question in this case was dead at the time it fell, because it "appear[ed] to not have bark and it seem[ed] extremely dry" (id. at 100). Chomycz did not believe that the tree was marked for removal; however, if a tree was observed in its condition it would have been.

At their depositions, Maintenance Supervisors Edward Ford and Donna Cahill confirmed much of Chomycz's account. Ford stated that DOT employees would drive along the roads "[s]everal times a year" to look at the trees and see if they were "leaning towards the road, if they had decay," or if they appeared dead "during the regular time of the year rather than the winter" (Ford Depo, Exh 42, at 18). Among other things, Ford would check for whether a tree had bark. Ford reported to the scene of the accident to remove the tree. He noticed that the tree did not have bark and stated that, had he observed a tree with no bark in a location where it could fall on the highway, he would have identified it and "tagged it for removal" (id. at 76). When shown a picture of the tree from before it fell, Ford thought that had he seen the tree it might have "warrant[ed] more investigation" because it "appear[ed] . . . in decline" due to the "lack of leaves" (id. at 80). Cahill was also taught to look for lack of bark or "leaves [that weren't] quite normal"—such as leaves that were dead or discolored—when inspecting trees (Cahill Depo, Exh 43, at 9). Cahill stated that inspections of trees happened "throughout the year" and any [*4]potential hazards observed while driving would be noted (id. at 19). She and DOT employees conducted windshield inspections, meaning they observed the trees or other potential hazards while driving. Cahill did not observe the tree before it was cleared but she did look at what was left of it on the side of the road. Cahill believed the tree was dead because it was a beige color and did not have bark (see id. at 29-30).

Bill Logan, a certified arborist, reviewed the photographs, police report, depositions of DOT employees, and DOT handbook in preparation for trial. Logan testified that the tree that fell was dead, because it had no bark on it. Living trees are "bark-tight," but once they die the bark begins to loosen and falls off over the course of several years. The tree also broke at its base, which indicated that it was dead for at least four years before the accident.

Logan compiled several images of the tree from Google Streetview into a video (see Google Streetview Video, Exh 34). In the Google Streetview photographs taken in September 2014, the tree is barren with only a few red leaves and is noticeable against the canopy of otherwise green trees. In photographs from October 2017, the tree is even more barren and contains only a few leaves. In photographs from July 2018, the remaining trunk of the tree is visible on the side of the road and there is a noticeably empty spot in the tree canopy where it used to stand.

Logan testified that, in his professional opinion, the tree was dead in September 2014 because it had no living leaves. Additionally, the tree would have been visible to anyone performing a windshield inspection. Had the tree been seen on a windshield inspection, a follow-up inspection likely would have revealed that the tree did not have bark and that it should have been removed. The tree should have been identified for removal prior to the crash and DOT's failure to identify the tree constituted a departure from a typical standard of care. The failure to see the tree led to the tree becoming increasingly dangerous, falling, and ultimately causing the accident and decedent's death.

Upon questioning from the Court, Logan testified that leaves can potentially remain on a tree for many years after it dies because the tree must expend energy to break the leaves off. Logan could not tell how long the tree was dead for or how long it would stand for after it died.

Lieutenant Roy Kievit and Trooper Steven Gill both testified that they responded to the scene on the night of the accident. Kievit, who routinely patrolled the Taconic State Parkway, noted that the road is narrow, wooded, and does not have any artificial light. Kievit observed both vehicles after the accident and saw that the tree was elevated rather than laying on the ground. Gill had driven along the Taconic several times the night of the accident before it occurred. After he reported to the scene, he began his investigation and observed that decedent had been wearing a seatbelt at the time of his death.

Chomycz spoke to many of the same points that he did at his deposition. He testified that DOT looks for hazardous trees through windshield inspections. These inspections can happen daily or a few times per week. Written records are not kept of these inspections. If a hazardous tree was detected, a supervisor would be notified so that they could inspect it. Chomycz learned of this accident a few days after it occurred. He had never noticed the tree before the accident and was unaware of it ever being labeled as a hazardous tree.

On cross-examination, Chomycz was asked to look at the Google Streetview photographs contained in Exhibit 33. He agreed that, as it appeared in September 2014, the tree with red leaves was visible, unobstructed, and would have been observable out of a front windshield. He also agreed that the tree as it appeared in the photographs from October 2017 would have been [*5]visible to anyone driving southbound along that section of the Taconic State Parkway.

The claimant "must prove [their] case . . . by a preponderance of the evidence" (Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 194 [1976]). On a claim for negligence, the claimant "must demonstrate (1) a duty owed by the defendant to the [claimant], (2) a breach thereof, and (3) injury proximately resulting therefrom" (Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016] [internal quotation marks and citation omitted], rearg denied 28 NY3d 956 [2016]). With respect to negligent maintenance of a roadway, "[i]t is well settled that the State has a duty to maintain its highways in a reasonably safe condition for travel" (Rinaldi v State of New York, 49 AD2d 361, 363 [3d Dept 1975]; see Friedman v State of New York, 67 NY2d 271, 283 [1986]; Lopes v Rostad, 45 NY2d 617, 623 [1978]). That duty "extends not only to the road surface and shoulders, but also applies to conditions adjacent to and above the highway, which could reasonably be expected to result in injury and damage to the users thereof" including trees that "constitute[] potential danger to the traveling public" (Rinaldi, 49 AD2d at 363 [italics omitted]; see Schillaci v Town of Islip, 163 AD3d 600, 600-601 [2d Dept 2018]). Although the State has a duty to inspect trees along a roadway, "no liability attaches unless the State has had actual or constructive notice of the dangerous or potentially dangerous condition and then fails to take reasonable measures to correct the condition" (Rinaldi, 49 AD2d at 363 [internal citation omitted]; see Fowle v State of New York, 187 AD2d 698, 699 [2d Dept 1992]). In order to establish constructive notice, "a dangerous condition must have been visible and apparent and must have existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it" (Fowle, 187 AD2d at 699 [internal quotation marks, italics, brackets, and citations omitted]). The State is not required to do "the impossible task of climbing and bore-testing all of the trees within the State's vast highway system," but to fulfill its duty "require[s] at least occasional casual observation, and reason dictates that those observing see what is plainly there to be seen and that they initiate appropriate corrective action" (Rinaldi, 49 AD2d at 364).

Similarly, as a landowner the State must maintain its property "in a reasonably safe condition in view of all the circumstances" (Preston v State of New York, 59 NY2d 997, 998 [1983] [internal quotation marks and citations omitted]) but "no liability attaches . . . unless there exists actual or constructive knowledge of the defective condition of the tree" (Ivancic v Olmstead, 66 NY2d 349, 350-351 [1985], cert denied 476 US 1117 [1986]). A landowner is under "no duty to consistently and constantly check all trees for nonvisible decay;" "[r]ather, the manifestation of said decay must be readily observable in order to require a landowner to take reasonable steps to prevent harm" (Ivancic, 66 NY2d at 351; see Babcock v County of Albany, 85 AD3d 1425, 1426 [3d Dept 2011]).

Here, the parties do not dispute that the tree fell, that the accident occurred on State property, or that the State has a duty to maintain its roadways—including trees which could pose a danger—in a reasonably safe manner (see Defendant's Post-Trial Memo, at 7). Therefore, the only question before the Court on the issue of liability is whether defendant had actual or constructive notice of the tree's condition prior to the accident that it failed to act upon.

The Court finds that claimant has not demonstrated that defendant had actual notice that the tree was defective or could pose a danger to the roadway. None of the DOT employees, either in their depositions or at trial, testified to observing the tree prior to the accident. Nor was [*6]any evidence submitted suggesting that anyone at DOT was aware of the tree or the potential danger it could pose. Therefore, defendant cannot be liable on the basis of actual notice.

However, the Court finds that claimant has proven by a preponderance of the evidence that defendant had constructive notice of the defective condition and defendant failed to take corrective action to address such condition within a reasonable timeframe. The undisputed evidence at trial demonstrated that the tree was dead for over three years prior to the accident. In photographs taken by Google Streetview in September 2014, the tree already is devoid of most of its leaves. What few leaves it has are bright red while all of the other trees have green leaves. Three years later, the Google Streetview photographs from October 2017 show that the tree is almost entirely barren, again while surrounded by otherwise green trees. These photographs were all taken from the road and the Court agrees with claimant's arborist that the condition of the tree would have been readily visible from a windshield. The Court also finds persuasive the arborist's undisputed testimony that a tree with few or no leaves during a time of year when trees typically have leaves means that that tree is dead. Further, at their depositions Chomcyz and Ford, when shown photographs of the tree prior to the accident, agreed that if the tree had been observed in that condition it would have warranted further investigation (see Chomycz Depo, Exh 41, at 111-112; Ford Depo, Exh 42, at 80). DOT employees also mentioned that lack of leaves was one of the signs of a dead tree that they were taught to look for. Additionally, at trial Chomycz testified that, based on the photographs, the tree was unobstructed and would have been visible through the front windshield of a vehicle in both September 2014 and October 2017.

Had any DOT employee, in the course of the numerous windshield inspections that were undertaken on a weekly to daily basis, noticed the readily visible tree without leaves and followed DOT policy to notify a supervisor to perform a closer inspection of the tree (see Trial Trans Day 2, at 67), such supervisor would have observed that the tree partially or wholly lacked bark. All of the witnesses who observed the tree at the time of the accident agreed that it entirely lacked bark. This observation is supported by the photographs of the tree that are in evidence. The arborist testified that bark falls off of a tree over the course of several years, meaning that even in September 2014, the tree was likely missing at least some, if not all, of its bark. Indeed, the branches and trunk of the tree appear to be the same light color in both the photographs from September 2014 and the photographs from the time of the accident where the tree clearly does not have bark. The arborist testified that partial or total lack of bark is a further indication that a tree is dead and therefore is at risk of falling over. The DOT employees also testified that lack of bark was something that they looked for when determining whether a tree needed to be removed. Additionally, Ford said at his deposition that, had he observed a tree with no bark in a place where it could fall onto the highway, he would have "tagged it for removal" (Ford Depo, Exh 42, at 76). It therefore seems eminently likely that, upon a Supervisor's visual inspection, the tree would have been deemed dead and tagged for removal.

The evidence and testimony clearly suggest that the tree was dead for several years before the accident occurred; that the evidence that it was dead was readily available upon a windshield inspection and follow-up visual inspection; and that the tree's height and location posed a threat to motorists should it fall. Therefore, defendant had constructive notice of the dangerous condition of the tree, because it was "visible and apparent and [the condition] existed for a sufficient length of time prior to the accident to permit the defendant's employees to discover and remedy it" (Fowle, 187 AD2d at 699 [internal quotation marks, italics, brackets, and citations omitted]; see Ferrigno v County of Suffolk, 60 AD3d 726, 728 [2d Dept 2009]; [*7]Guido v State of New York, 248 AD2d 592, 592 [2d Dept 1998]; Rinaldi, 49 AD2d at 363-364; see also Harris v Village of E. Hills, 41 NY2d 446, 448-450 [1977]; compare Ivancic, 66 NY2d at 351; Leach v Town of Yorktown, 251 AD2d 630, 630-631 [2d Dept 1998]). Having had constructive notice of the condition, defendant did not "take reasonable measures to correct the condition" (Rinaldi, 49 AD2d at 363). Therefore, the Court finds that defendant breached its duty to maintain its roadways in a reasonably safe condition and that breach was the proximate cause of decedent's death. Having established liability, a trial on damages will be scheduled.

As for contributory negligence, "[c]ulpable conduct claimed in diminution of damages, in accordance with [CPLR 1411], shall be an affirmative defense to be pleaded and proved by the party asserting the defense" (CPLR 1412). Here, the Court credits the undisputed testimony of claimant's accident reconstruction expert who testified that, even if decedent had been traveling at the speed limit, he still would not have had time to perceive and react to the fallen tree prior to the accident. Defendant has not submitted any proof in support of its affirmative defense that would suggest decedent could have averted the accident. Therefore, the Court finds that decedent bears no responsibility for causing the accident and defendant is 100% liable for the damages that will be determined after the trial on damages.

Therefore, upon consideration of the testimony of the trial witnesses, observing their demeanor and assessing their credibility as well as reviewing all exhibits received at trial and reviewing the applicable law, this Court hereby finds that claimant has proven liability on her claim for negligence by a preponderance of the credible evidence. Any and all other evidentiary rulings or motions upon which the Court may have previously reserved or which were not previously determined are hereby denied. This constitutes the Decision of this Court. Let interlocutory Judgment be entered accordingly.