New York State Court of Claims

New York State Court of Claims
SMITH v. THE STATE OF NEW YORK, # 2018-044-005, Claim No. 127086


After trial, Court dismissed claim for injuries allegedly incurred in a fall at SUNY Cobleskill. Claimant's testimony was completely non-credible, nor did she establish that a dangerous condition existed at the alleged location of the fall.

Case information

UID: 2018-044-005
Claimant short name: SMITH
Footnote (claimant name) :
Footnote (defendant name) : The Court has sua sponte amended the caption to reflect the State of New York as the sole proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 127086
Motion number(s):
Cross-motion number(s):
Claimant's attorney: FINE, OLIN & ANDERMAN, LLP
BY: Marshall P. Richer, Esq., of counsel
BY: Aaron J. Marcus, Assistant Attorney General
Third-party defendant's attorney:
Signature date: April 16, 2018
City: Binghamton
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant(2) filed this claim to recover for injuries allegedly incurred when she tripped and fell on December 4, 2014(3) while walking on campus at the State University of New York at Cobleskill (SUNY Cobleskill), an educational facility owned and operated by defendant State of New York (defendant). Defendant answered and asserted several affirmative defenses. Trial of the matter was bifurcated and held in the Binghamton District on April 11, 2018. This decision addresses only the issue of liability.

At trial, claimant testified that at the time of the incident, she was employed by Cobleskill Auxiliary Services (CAS), which provided (among other things) food services to SUNY Cobleskill. She had worked for CAS for approximately six years at that time, preparing food in the Prentice Hall dining hall. She said that the morning of her fall, her husband dropped her off in the large upper parking area at Prentice Hall for her 7:00 a.m. to 3:00 p.m. shift. At the end of her shift, she exited Prentice Hall, turned left, and proceeded down a walkway toward a smaller parking lot where her husband was waiting in the car. The larger parking lot was blocked by a large truck making a delivery to the Prentice Hall loading dock. She said that in an area where the concrete sidewalk transitioned to a blacktopped surface, her foot slipped on loose blacktop and she fell, causing injuries to her left leg. She got up and went to the car, and proceeded home.

She testified that she had never taken that route before, and did not observe any height disparity between the two surfaces. She said she called Barbara Furlong in Human Resources the next day to report the accident. She stated that she reported to work as usual on December 5, 2014, the day after the accident, but was unable to complete her shift because she was in too much pain.

On cross-examination, claimant said she had not fallen at her home earlier that week. She again asserted that she had never taken that walkway before. When asked why she had testified at her deposition that she did not use the walkway "often,"(4) she said she had been referring to a different walkway. She then stated she did not use it frequently, and then said she did not recall ever using it. When asked why, at her deposition, she had again said she "seldom" used the walkway, she said she did not recall that statement, but said she used it less than once a week. She said that the area was a place where smokers congregated, and she no longer smoked.

She said that while she was coming down the sidewalk she was looking for her husband, and was not looking down at the walkway. The disparity between the colors of the concrete and blacktop did not catch her eye. She did not notice any difference in elevation prior to falling, and did not take any pictures immediately after falling because she was hurt and wanted to go home. She said there was no ice or snow on the walkway. She was carrying a mini-backpack/purse and wearing non-slip shoes, which was a job requirement.

She reviewed several photographs of the scene, both on direct and cross-examination.(5) She said she did not know when they were taken, but eventually acknowledged that they were taken the following February, at the earliest. The pictures showed that the concrete portion of the walkway was at a slightly higher elevation than the blacktop portion.

She again stated that she went to work the following day (December 5, 2014), but was unable to work a full shift due to pain in her leg. When she was shown a copy of her payroll records(6) which showed that she worked a full day on December 5, but a partial day (7:05 a.m. to 1:58 p.m.) the day before the fall (December 3, 2014), she stated that she only left early when she had an appointment.

She acknowledged that at her deposition, conducted on August 18, 2016, she had been asked if she suffered any work-related injuries since the incident at issue, and that she said she had not. When asked whether she recalled injuring her hip at work, she said she did, but did not mention it because she "was fine." When asked if she had fallen at any point since this incident, she said she had not, because she is now very careful. She was next asked whether she recalled falling in May 2015 outside Wolfe's pizza, and going to the hospital for rib pain. She responded that she recalled slipping, but did not "go all the way down," because she caught herself with her hands. She said it hurt initially, but got better. She was next asked if she recalled falling at Walmart in February 2016. She acknowledged that she had fallen and filled out a report regarding the matter.(7)

Claimant was next asked whether she met with a physician's assistant at Bassett Healthcare Network named Nicole Dunn regarding the fall at issue in this claim. She said she did meet with Dunn, and told her what happened. Dunn's report on the meeting(8) states as follows: "[t]he incident occurred 3 to 5 days ago. The incident occurred at work. Injury mechanism: Patient slipped on ice and right leg slid out in front of her. . . . The pain is present in the left thigh."(9) Claimant stated that this must have referred to the fall the next day, which was the subject of the second cause of action thus was withdrawn prior to trial.(10) She again said she

was not injured in the fall on December 5, 2014, and further stated that if the document did not contain a reference to the December 4, 2014 fall, claimant must not have mentioned it.

Claimant was next asked if she recalled the Independent Medical Examination (IME) of Dr. Charles Reina, who examined claimant on April 7, 2015 with regard to her worker's compensation claim. Claimant said she did recall it, and at the time she told him about both falls (December 4, 2014 and December 5, 2014). She said he took notes. The IME Report(11) states in pertinent part:

Injury: On 12/04/14 she was finishing her shift at her job as a café attendant. She tripped outdoors in the icy parking lot, her left leg "went forward in a split", she did not hit her head. . . . She returned to work the next day with proximal thigh discomfort in the left lower extremity, and limping.(12)

Claimant said she told Reina about both incidents, and did not know why his report did not "mention that."

Ronald Smith, Jr., claimant's husband, testified on her behalf. He said that at the time of the incident, he worked at night and claimant worked during the day, so if he needed the car he would take her to work. He said he would normally drop her off in the larger parking lot, by the loading dock and back entrance to Prentice Hall. On the morning of the alleged incident, he dropped her off in the larger parking lot, but waited for her in the smaller parking lot because a truck making a delivery was blocking the upper lot. He said she exited the building, saw him, and started walking toward their vehicle. He said she was at the transition point from concrete to blacktop on the walkway when she fell. He got out of the car to go to her, but she "popped up" and came to the vehicle.

On cross-examination, Smith said the walkways and roads were clean and free from snow. He said he never dropped her off in the smaller parking lot, but had picked her up there "two or three times." He said she never had problems traversing the walkway before.

Smith acknowledged that at his deposition in August 2016 he stated that claimant had not fallen since the incident at issue in this claim. He said he was not aware of the incident where she fell outside Wolfe's Pizza, but he did know about the fall in Walmart because he was with her at the time. He said he had not mentioned it at the deposition because he had "not been asked about it really." He was unaware of any injuries she might have incurred at work since December 4, 2014.

Claimant next called Joseph Batchelder, Director of Facilities Management at SUNY-Cobleskill, to testify. He said he is responsible for physical plant maintenance and construction, which includes maintenance of sidewalks and walkways, and supervises approximately 100 people. He agreed that safety is important, and said that he relied on both regular inspections and employee reports to determine whether any particular repairs are needed to some part of the physical plant. He said that if the employees in his department saw something that needed repair, they would either repair it immediately or bring it to their supervisor's attention.

Batchelder reviewed the pictures of the scene, and said he was familiar with the location. The concrete and blacktop walkway had been there prior to his employment, which started in December 2013. He acknowledged that the concrete and blacktop surfaces appeared in the pictures to have different elevations, with the concrete being significantly higher than the blacktop. He said that if that had been recently constructed, it would not have been acceptable. He thought it was not a situation where some of the blacktop was missing. He said that he did not know why there would be a difference in elevation in this particular case, but said that a number of factors can contribute to such situations. He said that "walkways move around all the time," and it is "a common phenomenon." He said that normal procedure would be to observe the situation, because it might move seasonally due to freeze/thaw cycles, and acting too quickly could make the situation worse. He did not know whether this particular situation was anything different than what his department would normally see in walkway fluctuation.

Batchelder said that he had no recollection of passing through that area near the time of claimant's alleged fall. If he had seen it, he would have wanted to observe it before making major repairs, because the blacktop could "pop up" again, but that minor repairs would have been made immediately. He said that his staff was empowered to deal with situations like this, which would have been an easy, quick and inexpensive repair. He said that if such a condition was observed over time, and the difference in elevation did not resolve, the blacktop would be removed and replaced with concrete. In fact, that was eventually done some months after claimant's fall, but he said it was a campus-wide project that had been in the planning stages for over a year.

Batchelder said that in this particular situation, if anyone had been aware of such a condition, observation would have been the correct approach, and that steps would have been taken to warn the public of the potential risk. All employees in the department would have had discretion to take measures, whether signage, a cone, or tape, to notify the public. He stated that even though it was not clear that corrective action would have been taken right away if the condition had been observed, action would have been taken to warn the public. He noted that his employees passed through the area regularly.

On cross-examination, Batchelder acknowledged that obviously his department would not be able to observe or remediate a condition unless they had notice of that condition. He said that these types of conditions - walkway elevation changes - can come about very quickly. He said that the condition could have looked substantially different between December 4, 2014 and February 2015, when the pictures were taken. He said it certainly would not have been "pristine," but could well have been something that would have been completely acceptable.

Batchelder testified that the department's system was searched, and there were no complaints about the condition, no work orders, and no complaints or reports of injury prior to claimant's incident. He noted that the workers operating snowplows would normally be the first ones to report these types of conditions, because the plow could hit them and the operators could be hurt. He personally had no knowledge of the condition.

Batchelder also noted that there was a track through the grass near the area, which he described as a "desire line," or place where people cut through a patch of grass between two walkways. He said it is usually a shorter distance between two points.

Daniel DeJong, the Grounds Manager at SUNY Cobleskill, also testified. He and his staff are responsible for mowing the grass, and plowing and maintaining the walkways, among other things. He had no personal knowledge of whether the condition depicted in claimant's photographs had been present on December 4, 2014. He said if he had seen that condition, he probably would have put cold patch down. He would not have had to get permission to repair the condition, or to place devices to warn the public of a safety risk.

DeJong acknowledged that a repair might not have been able to be made immediately, and commented that such conditions can occur rapidly, particularly in areas where there is a transition from one material to another. He agreed that cones could have been placed to warn the public of a dangerous condition. He said his workers would have been in the area on a daily basis, particularly during snow events.

DeJong was aware that the college had made plans to remove the blacktop walkways throughout the campus and replace them with concrete. He said those plans had been underway for a long time.

On cross-examination, DeJong said that walkway elevations can change very rapidly at that time of year, particularly in "transition zones." He stated that the walkway could "certainly" have looked very different between December 4, 2014 and the following February. He had not personally noticed anything he thought constituted a safety issue. He was not aware of any falls or injuries in the area, and there had been no complaints by workers, university staff, or students. DeJong said he and his employees plow that walkway in winter, and those types of height differentials cause problems for plows. He had not noticed a problem in that location, and had no reports of any problems from any of his employees. Claimant rested her claim at the close of DeJong's testimony.

Janice Herrick, the environmental health and safety officer for SUNY Cobleskill, testified on behalf of defendant. She said that a portion of her responsibilities includes taking in incident, injury and illness reports from faculty, staff and students. She said that if someone is injured, protocol requires that she determine the cause of the injury and determine whether it can be addressed or remedied.

Herrick received claimant's injury report in early January 2015 from Barbara Furlong, the human resources manager at CAS. The report contained incomplete information, so Herrick requested further information from Furlong. Furlong forwarded a copy of the worker's compensation report(13) (the C-2) regarding claimant's injury to Herrick. The C-2 indicated that claimant was injured while walking across uneven grass when she misstepped and felt a "pull" in her left leg.(14)

Herrick said she did not do a site inspection, because with a mild winter and repeated freeze/thaw cycles, there would be "nothing to look at on uneven grass a month after the event." In February 2015, after claimant's filing of a notice of intention to file a claim, Herrick looked for incident reports for the two years prior to December 4, 2014. Her review of her files found no accidents, incidents or injuries related to the general area where claimant fell. She said she keeps those reports for three years.

On cross-examination, Herrick acknowledged that the report she received had been prepared by Furlong, not claimant, and claimant had not signed it. Herrick said that was not unusual, as incidents can be self-reported or filed on behalf of someone else. She said that she took no steps to contact claimant about the incident, other than to ask her how she was doing when she encountered her.

Barbara Furlong, human resources manager for CAS, also testified on defendant's behalf. Furlong said that claimant reported the incident directly to her on December 5, 2014. Furlong testified that claimant advised her that she slipped while walking on uneven grass. Furlong further stated that the information she transcribed onto the C-2 form was taken verbatim from claimant. The C-2 states in three different sections that claimant had been walking on uneven grass when she slipped.

Furlong said she was familiar with the walkway, had never had any problems negotiating it, and had never heard of anyone having any problems in the area. She said that if she had heard of a problem, or encountered one herself, she would have notified facilities management to inspect the area.

On cross-examination, Furlong acknowledged that claimant did not fill out or sign any part of the C-2 form.

Sean Gallagher, a chef at CAS and claimant's direct supervisor, testified for defendant. Gallagher said that shortly prior to December 4, 2014, claimant told him she had tripped off the curb by the health center. Gallagher said that during the time period of December 1 to December 14, 2014, claimant complained of being in pain. He said that in the middle of the week and prior to December 4, 2014 (which fell on a Thursday), claimant asked to leave early because she was in pain and could not continue standing at work. Defendant rested its case at the close of Gallagher's testimony.

At the close of claimant's testimony, claimant's attorney objected to the admission of the report regarding her fall at Walmart (Defendant's Exhibit C), the report regarding her fall outside Wolfe's Pizza (Defendant's Exhibit G) and the report of a subsequent incident in February 2016 (Defendant's Exhibit H) on the ground that those reports concerned subsequent unrelated medical matters which took place after the events of December 4, 2014. Defendant's counsel argued that he sought to introduce the documents simply to impeach the credibility of the witness. The Court reserved determination on the objections.

The Court now sustains the objections to all three documents. "It is well established that the party who is cross-examining a witness cannot introduce extrinsic documentary evidence . . . to contradict a witness' answers concerning collateral matters solely for the purpose of impeaching that witness' credibility" (People v Pavao, 59 NY2d 282, 288-289 [1983]; see also Matter of Blaize F., 50 AD3d 1182, 1183 [3d Dept 2008]). A collateral matter has "no direct bearing on any issue in the case other than . . . credibility" (People v Blanchard, 279 AD2d 808, 811 [3d Dept 2001], lv denied 96 NY2d 826 [2001]; see also Badr v Hogan, 75 NY2d 629, 634-635 [1990]). Claimant's subsequent falls are clearly a collateral matter, and the documents were submitted solely to impeach her credibility on a collateral issue. In light of the foregoing, the objections to admission of all three documents are sustained. While claimant's counsel did not seek to have her testimony regarding those subsequent falls stricken, the Court's decision herein is in no way based upon any such testimony.

The State, as a landowner, has a duty of reasonable care in maintaining its property in a reasonably safe condition under all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk (see Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]; see also Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied 96 NY2d 704 [2001]). To ultimately prevail on this claim, claimant must establish by a preponderance of the credible evidence that a dangerous condition existed; that the State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate said condition within a reasonable time; that said dangerous condition was a proximate cause of the accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]). However, a landowner may not be held liable for negligent maintenance due to the existence of a trivial defect on a walkway which does not constitute a trap or a nuisance (Sullivan v State of New York, 276 AD2d 989 [3d Dept 2000]). There is no hard and fast rule that "a defect must be of a certain minimum height or depth in order to be actionable" (Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]).

As an initial matter, based upon the cumulative testimony, the evidence submitted, and an observation of her demeanor during her testimony, the Court finds claimant was in no way a credible witness. She clearly told a different story to everyone she encountered regarding how she was injured. She told her supervisor she tripped off a curb near the health center. She told Furlong she slipped walking on uneven grass. She told Dunn and Reina that she slipped on ice. Throughout the entire course of her testimony, claimant was inconsistent. Accordingly, the Court finds that claimant has failed to establish by a preponderance of the evidence both the exact location where she fell and the exact date. The Court gives no credence whatsoever to her testimony in that regard.

Assuming simply for the sake of argument that claimant actually fell where and when she said she did, the Court further finds that claimant did not establish that a dangerous condition existed at that location on the date in question. This determination is based upon the credible testimony of both Batchelder and DeJong that such a difference in elevation could take place very quickly, and certainly could have looked very different between December 4, 2014 and sometime in February 2015, particularly when combined with the testimony that none of the snowplow operators complained of such a condition. Moreover, claimant never even began to establish that defendant had notice of any such condition, dangerous or otherwise. Finally, claimant's completely non-credible testimony clearly did not come close to meeting her burden of proof of establishing that the condition was a proximate cause of her injury.

Based on the foregoing findings, the claim is dismissed. Any and all motions on which the Court may have previously reserved or which were not previously determined are hereby denied. Let judgment be entered accordingly.

April 16, 2018

Binghamton, New York


Judge of the Court of Claims

2. Claimant Ronald Smith, Jr.'s claim is derivative in nature, and unless otherwise indicated or required by context, the term "claimant" shall refer solely to claimant Christine Smith.

3. Claimant asserted a second cause of action in her claim for a fall the following day, December 5, 2014. Claimant withdrew that cause of action prior to trial on the basis that she incurred no injury in that fall.

4. All quotes are taken from the Court's notes of the proceeding, unless otherwise indicated.

5. Claimant's Exhibits 1-A - E and 2-A - D.

6. Defendant did not submit this document into evidence.

7. Counsel for defendant sought to introduce a copy of the report regarding the fall at Walmart, and counsel for claimant objected to its admission. The Court will address claimant's counsel's various objections to admission infra.

8. Defendant's Exhibit E.

9. Id. at 2.

10. see n 3 supra.

11. Defendant's Exhibit F.

12. Id. at 3.

13. Defendant's Exhibit A.

14. Id. at 2.