|Claimant(s):||SUZANNE MATHEWS Individually and as Natural Parent of M.M. as Infant|
|Claimant short name:||MATHEWS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Abdella & Sise, LLP
By: Robert Abdella, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Thomas P. Carafa, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 5, 2021|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212.
During the course of a class trip to the Sir William Johnson Hall State Historical Site,(1) M.M., a fifth grade student, was allegedly injured after stepping into a depression in the pedestrian path leading from a crosswalk in the road to the historical site. At the time of her accident, the class was being escorted by two teachers, Jay Holland and Mary Riley. M.M. was with Mr. Holland at or near the end of a line of students. M.M. testified that while she was walking on the path her right foot stepped into a "hole" which caused her to fall on her right side, with her right hand landing on a nearby rock (defendant's Exhibit F, pp. 16-17). M.M. identified the area depicted in deposition Exhibit K as the area where she fell (claimant's Exhibit A; deposition Exhibit K). Mr. Holland testified that although he did not see M.M. fall, he observed her on the ground afterward in the area depicted in deposition Exhibits F, J and K (claimant's Exhibit A; deposition Exhibits, F, J, and K). When Ms. Riley, M.M.'s teacher, learned of the accident, she went to the back of the line where she found M.M. sitting on the grass adjacent to the path. She testified that no one pointed out the cause of the fall to her, she did not recall a depression in the path and she could recall no one having difficulty traversing the path. A school nurse brought claimant back to the school in her car and called the claimant's mother to pick her up.
Stephen Simek testified at his deposition that he has been employed by the State of New York, Office of Parks, Recreation and Historic Preservation, as a Maintenance Supervisor at the site for approximately ten years. He testified that he traversed the walkways almost daily and that the paths, which are comprised of stone dust, require raking or additional stone dust after each rainfall. In the ten-year period Mr. Simek has worked at the site, he estimated that he has performed hundreds of repairs to small depressions or rivulets in the stone dust. Although Mr. Simek testified that the area of M.M's fall "hardly ever" washes out (defendant's Exhibit I, p. 16), he has admittedly replaced the stone dust on the three-quarter-mile long path several times and has added stone dust to the pathways in the park "hundreds of times" over the ten-year period he has worked there (id. at p. 15). Mr. Simek testified that, before the accident, he discussed with Mr. Wells, his supervisor, the feasibility of applying blacktop to the paths. Stone dust is the material typically used in all of the State Parks, according to Mr. Simek.
Wade Wells has been employed by the State as the Johnson Hall Historic Site Manager since 2014 (defendant's Exhibit H, p. 7). His duties include the overall management of the historical site, including supervision of the maintenance staff. Like Mr. Simek, Mr. Wells testified that he has in the past seen small rivulets in the stone-dust paths similar to those depicted in deposition Exhibit F (see defendant's Exhibit D, deposition Exhibit F). He testified, based on his past experience, that these rivulets are small depressions caused by rainfall which would be raked or filled in. He has observed this condition less than ten times and was unaware of prior falls in the area of the claimant's accident. Although there is a procedure for the reporting of accidents on the premises, Mr. Wells testified that did not receive a report from the claimants regarding the subject accident.
The State, as owner of the premises where the accident occurred, was required to act
" ' "as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" ' " (Preston v State of New York, 59 NY2d 997, 998 , quoting Basso v Miller, 40 NY2d 233, 241  [citation omitted]). In support of its motion for summary judgment, defendant contends that dismissal is required on the grounds the defect which allegedly caused the accident was a trivial, and therefore non-actionable defect, and, in any event, it neither created nor had actual or constructive notice of its existence.
It well settled that "the summary judgment movant bears the heavy burden of establishing 'a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact' " (Deleon v New York City Sanitation Dept., 25 NY3d 1102, 1106 , quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; see also Vega v Restani Constr. Corp., 18 NY3d 499, 503 ; CPLR 3212 [b]). Only where the movant has made this showing does the burden shift to the opposing party "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ).
Addressing first defendant's contention that the alleged defect was a trivial non-actionable one, the Court of Appeals in Trincere v County of Suffolk (90 NY2d 976 ) made clear that although there are circumstances in which a defect may be determined to be trivial as a matter of law, the determination "depends on the peculiar facts and circumstances of each case and is generally a question of fact for the jury" (Trincere, 90 NY2d at 977 [inner quotation marks and citation omitted). Thus, even slight defects may be actionable where, for example, the defect is a "jagged edge," "a rough, irregular surface," or there exists "other defects in the vicinity," "poor lighting," or a "heavily traveled walkway--where pedestrians are naturally distracted from looking down at their feet" (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 78 ). Consideration must therefore be given to "the facts presented, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" (Claro v 323 Firehouse, LLC, 177 AD3d 1052, 1053 [3d Dept 2019] [inner quotation marks and citation omitted]). If either the "intrinsic characteristics" or the "surrounding circumstances" magnify the dangers posed by an otherwise insignificant defect, the defect is actionable (Claro, 177 AD3d at 1053, quoting Gami v Cornell Univ. 162 AD3d 1441, 1442 [3d Dept 2018]; see also Kozik v Sherland & Farrington, Inc., 173 AD3d 994 [2d Dept 2019]; Brumm v St. Paul's Evangelical Lutheran Church, 143 AD3d 1224 [3d Dept 2016]). A defendant seeking summary judgment on the ground a defect is a trivial one must therefore demonstrate "that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses" (Hutchinson, 26 NY3d at 79).
Here, the defendant's motion is unsupported by information regarding the dimensions of the hole which the infant claimant alleges was the cause of her fall. While "[p]hotographs which fairly and accurately represent the accident site may be used to establish that the defect is trivial" (Fasone v Northside Props. Mgt. Corp., 149 AD3d 905, 906 [2d Dept 2017] [inner quotation mark and citation omitted]), such is not the case here. The depth of the hole or depression which caused the infant claimant's fall is not clearly discernable from the photographs, and the Court is unable to conclude from a review of the photographic evidence alone that the defect is physically insignificant or that the surrounding circumstances did not increase the risks it posed. Moreover, consideration of the surrounding circumstances indicates that foot traffic on the path was foreseeable and that the accident occurred on a heavily traveled pathway.
Turning to defendant's next argument, that it did not have notice of the allegedly defective condition, it was defendant's burden to demonstrate "that it had maintained the property in a reasonably safe condition and that it did not create or have actual or constructive notice of the specific allegedly dangerous condition that resulted in plaintiff's injury" (Ellis v Lansingburgh Cent. Sch. Dist., 163 AD3d 1146, 1147 [3d Dept 2018] [inner quotation marks and citation omitted]; see also Keating v Town of Burke, 86 AD3d 660 [3d Dept 2011]). The claimants here do not contend the defendant created the condition or had actual notice of the particular hole which allegedly caused M.M.'s fall. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ). To meet its burden on the issue of constructive notice the defendant was required to proffer evidence as to when the subject area was last inspected (Merchant v New York City Tr. Auth., 183 AD3d 647, 648 [2d Dept 2020]; Kropp v Corning, Inc., 69 AD3d 1211,1212 [3d Dept 2011]). Defendant's submission of the deposition testimony of both the Maintenance Supervisor and the Historic Site Manager demonstrate no more than the fact the pathways at the historical site were frequently inspected. Without dispositive photographic proof or evidence of the date the area was last inspected before the accident, defendant failed to meet its burden of demonstrating the absence of constructive notice (see e.g. Bailey v Curry, 1 AD3d 1059 [4th Dept 2003]).(2)
Moreover, in opposition to the motion, claimant raised a question of fact as to whether the defendant had constructive notice of a dangerous condition. Constructive notice may be established through evidence that "the property owner was aware of an ongoing and recurring dangerous condition in the area of the accident and did not rectify the problem" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 960 [3d Dept 2011]). Thus, where "a property owner has 'actual knowledge of the tendency of a particular dangerous condition to reoccur, he [or she] is charged with constructive notice of each specific recurrence of that condition' " (Bush v Mechanicville Warehouse Corp., 69 AD3d 1207, 1208 [3d Dept 2010], quoting Kivlan v Dake Bros., 255 AD2d 782, 783 [3d Dept 1998] [other citations omitted]; see also McGrath v George Weston Bakeries, Inc., 117 AD3d 1303 [3d Dept 2014]; Vincent v Landi, 101 AD3d 1565, 1567 [3d Dept 2012]; Mazerbo v Murphy, 52 AD3d 1064, 1066 [3d Dept 2008], appeal dismissed 11 NY3 770 ; Lowe v Spada, 282 AD2d 815, 817 [3d Dept 2001]).
Here, the deposition testimony of the state employees established that the formation of rivulets or depressions in the stone-dust paths was a recurring condition following a rainfall. In fact, Mr. Simek testified at his deposition that he has filled in such rivulets hundreds of times over the ten-year period of his employment. Such evidence, when considered in the light most favorable to the claimant, raises a question of fact as to whether the defendant may be charged with constructive notice of the condition which caused claimant's fall (see Monnin v Clover Group, Inc. 187 AD3d 1512, 1514 [4th Dept 2020]).Accordingly, defendant's motion is denied.
August 5, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of Motion dated May 24, 2021;
2. Affirmation in Support dated May 24, 2021, with Exhibits A-L;
3. Memorandum of Law dated May 24, 2021;
4. Claimant's Attorney Affidavit dated July 2, 2021, with Exhibit A.
1. The New York Office of State Parks, Recreation and Historic Preservation website indicates the name of the park is Johnson Hall State Historic Site (https://parks.ny.gov/historic-sites/10/details.aspx.
2. Defendant's proffer of uncertified climatological data showing that it rained on the preceding Friday and Saturday (the accident was on a Monday) does not change the result absent an expert affidavit opining that the amount of the recent rainfall could have created the depression which allegedly caused the claimant's fall (Sztark v City of New York, 33 Misc 3d 1210 [A] [Sup Ct, 2011], citing Massey v Newburgh W. Realty, Inc., 84 AD3d 564, 566 [1st Dept 2011]; cf Perez v Canale, 50 AD3d 437 (1st Dept 2008).