New York State Court of Claims

New York State Court of Claims
SKLAVONITIS v. THE STATE OF NEW YORK, # 2021-059-073, Claim No. 131317


Case information

UID: 2021-059-073
Claimant short name: SKLAVONITIS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 131317
Motion number(s):
Cross-motion number(s):
Claimant's attorney: The Odierno Law Firm, P.C.
By: Christian B. Coppinger, Esq.
By: Antonella Papaleo, Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 8, 2021
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


The claim, filed on April 17, 2018, alleges that on September 25, 2017 at approximately 5:15 p.m., Stephanie Sklavonitis (Claimant) was injured when she stepped off the curb and fell into a pothole on the shoulder of New York State Route 111 (Route 111) in Central Islip while attempting to cross Route 111 in order to bring her daughter to a dance class located on the opposite side of Route 111. The claim alleges that the State's (Defendant or State) negligent maintenance and operation of the roadway caused Claimant's injuries.

At the conclusion of discovery the State moved for summary judgment. This Court denied the State's motion, finding material issues of fact which could not be resolved without a trial (Motion No. M-95455, Decision and Order dated Nov 23, 2020). A trial was held on June 10 and 11, 2021 and closing arguments were submitted on August 16, 2021 by way of posttrial memoranda. Three witnesses testified on the Claimant's case: Claimant Stephanie Sklavonitis; John McNeil, a retired New York State Department of Transportation employee; and Harold Krongelb, who provided expert testimony. The State called Heather Harmer, an investigator with the Attorney General's Office.

Stephanie Sklavonitis Testimony

Ms. Sklavonitis testified that she "fell into a pothole on Route 111 in front of the Valero gas station at the bus stop in the shoulder lane" while stepping off the sidewalk into the road and carrying her three-year-old daughter in her arms (T: 26-27).(1) She testified that she and her daughter were walking from Claimant's mother's house, which was located behind and approximately 100 feet from the gas station, to her daughter's dance studio, which was across from the Valero gas station (T: 27-28). Claimant testified that she cut through the gas station, proceeded onto the sidewalk and began to cross Route 111 in the area immediately adjacent to the gas station driveway with her daughter in her arms (id.).

Claimant testified that when she stepped off the sidewalk curb with her daughter in her arms, her left foot "got stuck into a pothole", which caused her "to become very unbalanced" and "fall forward into the lane of traffic of Route 111" (T: 30). Both claimant and her daughter fell to the ground. She then "grabbed" her daughter and "shimmied over to the curb" for safety (T: 32). Claimant testified that she then screamed for help and was assisted by a pedestrian. The fire department, police, and EMTs also came to her aid (T: 32).

She also stated that she did not look down where she was stepping, and was instead looking forward, to the opposite side of the street, as well as right and left, making sure no cars were coming (T: 46, 64). She stated that the first time she noticed the pothole was after she fell (T: 32). Claimant also testified that had she looked down she "wouldn't have crossed at Route 111" but would have crossed in "a more safer area" (T: 81-82). Claimant described the pothole as "very large", "depressed", "uneven" and that it contained crushed asphalt, grass and debris (T: 32-33).

Claimant described Route 111 as a "very high--heavy traffic area

for both pedestrians and motorists" (T: 51), with pedestrian curb cutouts near the accident location (T: 60-61). When asked why she crossed at that location, Claimant explained that she intended to cross Route 111 directly across from a "cutoff ramp . . . [located] where the walkway ends at the driveway of the dance studio" on the opposite side (T: 30). When asked where the nearest crosswalk was in relation to the area where she chose to cross while carrying her child, Claimant indicated that it was half a mile away (T: 48).

Claimant characterized the location of her accident as a bus stop because there were two "No Standing" signs and a bus stop sign in front of the Valero gas station (T: 26-27; 44; 48). She testified on her direct case that she personally observed passengers, including her mother, exit the bus and walk on to the shoulder area where she had fallen in order to access the curb and sidewalk (T: 48-50). On cross-examination, however, Claimant stated that she did not actually see her mother exit the bus at that location. She also testified that she herself had never used the bus stop or walked in the area and that observations of others exiting the bus and accessing the sidewalk via the shoulder of Route 111 were made while she was driving (T: 55-56). She also testified that while driving she observed people crossing Route 111 in that area on a daily basis (T: 56-57).

On cross-examination, Claimant indicated that at the time of the accident she had been wearing flip-flops, but that she had no recollection what type they were or whether they were leather or rubber (T: 78-79).

John McNeil Testimony

Claimant called John McNeil, who held the position of Highway Maintenance Supervisor 2 at the time of the accident and who had worked for 37 years for the New York State Department of Transportation (NYSDOT) before his retirement (T: 92). In that role he was responsible for overseeing the maintenance and repair of State roadways in an area which included the portion of Route 111 where Claimant fell (T: 101). McNeil's responsibilities included driving the roads to conduct regular inspections of their condition, as well as the scheduling, prioritizing, and overseeing of any repairs to those roads (T: 103-104). He testified that he conducted visual inspections of approximately 144 miles of roadway, three to four times per week and that he repaired conditions that might be hazardous to vehicular and/or pedestrian traffic (T: 102-103; 105). His inspections of roads focused on hazards to vehicular traffic while he surveyed crosswalks to assess repairs necessary for pedestrian foot traffic (T: 118-120).

Mr. McNeil testified that he did not expect pedestrian foot traffic in the shoulder area where Claimant fell (T: 119). He stated that the accident occurred in an area approximately 3 to four feet wide. He called it a "little shoulder[]" rather than a full-size shoulder and that the shoulder was not designed for pedestrian foot traffic or even bicycle traffic (T: 111-112). Because the condition at issue here was in the shoulder of the road and so close to the curb, repairing it would not have been considered it a top priority. Conditions posing a danger to pedestrians or vehicular traffic, such as a deep pothole in an area where cars travel, would be given priority (T: 138-139). When asked about the proximity of the accident area to the bus stop, Mr. McNeil indicated that he would not expect bus passengers to walk from a bus into the shoulder of the road, since there was a sidewalk (T: 121).

Mr. McNeil testified that he became aware of the condition of the accident area when he learned of the accident (T: 106), and that the first time he saw the condition was during a site visit, in response to the instant claim (T: 136). He stated that he had received no prior complaints about the pothole (T: 137-138). He had no recollection of observing a defect in the area during prior inspections (T: 136). Mr. McNeil stated that the defect "didn't seem like much of a pothole" and described the condition as "more of a dip in the road and a little pothole" or a "divot" which required a ten minute repair by a DOT crew (T: 108; 135).

Harold Krongelb Testimony

Claimant's final witness was Harold Krongelb, an engineering expert. He indicated that he first went to the accident location on February 13, 2018, but could not recall why he was unable to conduct a site inspection on that day (T: 169). Mr. Krongelb visited the site again on April 5, 2018, some six months after the accident, at which time he took measurements and photographs (T: 167; 169; 170; 174 and Exhibits 34; 39; 43; 44; 49; 51; 56; 57).

Mr. Krongelb measured the pothole to be 18 inches from north to south and 14 inches from east to west and about four inches from the curb (T: 178-179; 225). He testified that the defect was two inches deep at its deepest point but that debris at the bottom of the pothole made it difficult to determine the exact depth (T: 178-179; 185). He also noted the pothole was less than two inches deep at the edges (T: 237). Mr. Krongelb acknowledged that since the measurements were taken in April 2018, after the February to March freeze/thaw cycle, the pothole could have been created or enlarged since the September 2017 accident (T: 253-254).

Mr. Krongelb opined that the gas station convenience store, the stores on the other side of Route 111 and the bus stop contributed to the likelihood that pedestrians would walk in the shoulder area where the accident occurred (T: 203-204). He also testified that the presence of the sidewalk increased the likelihood that pedestrians would walk in the shoulder (T: 194). He assumes that pedestrians will walk wherever they please, regardless of whether there is a sidewalk (T: 193).

Mr. Krongelb described the accident location as a bus stop because there was a bus stop sign in the area and two "No Standing" signs located in front of the Valero gas station (T: 189). He did not measure the distance between the bus stop sign and the accident location (T: 227). Mr. Krongelb believed that passengers discharged from the bus could be expected to walk in the shoulder despite the available sidewalk if they intended to proceed north (T: 192). He stated on cross-examination that he had "never observed buses stopping there and discharging passengers" and "never observed where they walked" (T: 231).

Heather Harmer Testimony

The State's witness was Heather Harmer, an investigator employed by the New York State Attorney General's Office (T: 265). She went to the accident site on Thursday, January 21, 2021 and spent approximately four hours there, starting at 10 a.m. (T: 266). She took photographs of the now patched pothole and the surrounding areas (id.). She also measured the distance from the patched condition to the bus stop sign at 60 feet. She parked at the Valero gas station and observed the bus stop activity at that location for four hours (T: 266; 267). Ms. Harmer testified that at no time during the four hours did she observe busses or pedestrians at the bus stop and that there was "virtually no activity" there (T: 268), but conceded on cross- examination that these were not rush hour times (T: 274). She also testified that she went to the site on April 8, 2021 and spent approximately 10 to 15 minutes there (T: 266).

On cross-examination, Ms. Harmer stated that her inquiries indicated that this bus stop is not for passenger pick up and is only used for drop off (T: 272-273).

Applicable Law

To prevail on a claim of negligence in a premises liability case, a claimant must demonstrate by a preponderance of the credible evidence that: (1) the defendant owed claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) the defendant either created the dangerous condition, or had actual or constructive notice and failed to alleviate the condition within a reasonable time; and (4) the condition was a proximate cause of the events resulting in the claimant's injuries (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Gordon v American Museum of Natural History, 67 NY2d 836 [1986] [citations omitted]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]). "[C]laimant has the burden of establishing a dangerous or defective condition that defendant created or had knowledge (actual or constructive) of, and that such condition was a cause of the accident" (Gonzalez v State of New York, 60 AD3d 1193, 1194 [3d Dept 2009], lv denied 13 NY3d 712 [2009]; see also Rios v State of New York, UID No. 2016-041-510 [Ct Cl, Milano, J., Nov. 1, 2016]). "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 at 837). A claimant must "demonstrate that defendant either created the condition by its own affirmative act, was aware of a specific condition yet failed to correct it, or was aware of an ongoing and recurring unsafe condition which regularly went unaddressed" (Kivlan v Dake Bros., 255 AD2d 782, 783 [3d Dept 1998]; see, Quintanilla v State of New York, 94 AD3d 846 [2d Dept 2012]).

"Although the State owes a nondelegable duty to the traveling public to maintain its highways in a reasonably safe condition, it is not an insurer of the safety of its highways" (Hamilton v State of New York, 277 AD2d 982, 983 [4th Dept 2000], reversing 184 Misc 2d 224 [Ct Cl 1999], citing Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Shevalier v Bentley, 268 AD2d 622 [3d Dept 2000]). "The State's duty to provide pedestrians with a reasonably safe place to travel does not extend to the situation here, where claimant was attempting to cross the road in front of his house rather than at an intersection or a designated crosswalk" (Hamilton v State of New York, 277 AD2d at 984 [internal citations omitted]).

Further, the State will not be liable unless its negligence was a proximate cause or a substantial factor in causing the accident (Hamilton v State of New York, 277 AD2d at 983).

"In ascertaining whether a defendant's conduct constitutes a substantial factor in bringing about the harm of which the [claimant] complains, consideration should be given to: the aggregate number of factors involved which contribute toward the harm and the effect each had in producing it; whether the defendant had created a continuous force active up to the time of the harm, or whether the situation was affected by other forces for which the defendant was not responsible; and the lapse of time" (Baptiste v New York City Transit Auth., 28 AD3d 385, 386 [1st Dept 2006] [citation omitted]).

"Under well-settled law, the defendant has no duty to maintain its entire right of way in a condition safe for travel by either motorists or pedestrians" (Young v New York Thruway Auth., 76 AD2d 834, 835 [1980] [citations omitted]). The State is not liable "where the injured pedestrian's presence is not reasonably foreseeable and not every use of a roadway by a pedestrian is within the scope of the State's duty" Rivera v State of New York, UID No. 2013-045-502 [Ct Cl, Lopez-Summa, J., Apr. 2, 2013], citing Hamilton v State of New York, supra; Perez v State of New York, UID No. 2009-040-081 [Ct Cl, McCarthy, J., Oct. 28, 2009]; see also Hewitt v State of New York, UID No. 2018-045-026 [Ct Cl, Lopez-Summa, J., July 6, 2018] [summary judgment granted to the State where it was not reasonably foreseeable that pedestrian would cross outside the intersection]).

"Finally, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen, and to avoid accidents" (Gonzalez v State of New York, UID No. 2020-040-008 [Ct Cl, McCarthy, J., Aug 3, 2020], citing Weigand v United Traction Co., 221 NY 39, 42 [1917]; Lolik v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other grounds 86 NY2d 744 [1995]; Sharrow v New York State Olympic Regional Dev. Auth., 193 Misc 2d 20, 43 [Ct Cl 2002], affd 307 AD2d 605 [3d Dept 2003]).

Duty of Care

The credible trial evidence established no duty of care on the part of the State to eliminate the pothole at issue. It was not foreseeable that a pedestrian would walk in this area or cross a heavily trafficked road outside of a crosswalk or intersection (see Hewitt v State of New York, UID No. 2018-045-026 [Ct Cl, Lopez-Summa, J., July 6, 2018]). Although Claimant testified that the nearest crosswalk was "half a mile away" (T: 29), that statement was contradicted by Claimant's own photographic evidence which showed a traffic light to be 1 to two blocks away (see, e.g., Exhibits 10, 18, 19, 22, 23, 30). As to the assertions that the nearby bus stop rendered the accident foreseeable, Claimant's expert, Mr. Krongelb, offered no credible explanation as to why a pedestrian would walk behind a bus to enter it or walk onto the narrow shoulder instead of the sidewalk after exiting the bus. Furthermore, Mr. Krongelb testified that a bus is typically 40 feet long and that the doors are located at the front and two-thirds to three-quarters of the way down from the front (T: 255). This testimony further indicated the unlikelihood of bus passengers using the shoulder area 20 feet behind the back of the bus rather than the sidewalk. Mr. McNeil, a NYSDOT employee, testified that pedestrian traffic was not expected in the area where Claimant fell (T: 119). Because it was not reasonably foreseeable that a pedestrian would utilize the narrow shoulder of Route 111, the State had no duty to maintain that section of roadway for pedestrian use (Aziz v State of New York, UID No. 2019-050-501 [Ct Cl, Lynch, J., May 29, 2019]).

Dangerous Condition

Even assuming, arguendo, that the State had a duty to maintain the area where Claimant fell, the evidence did not support the existence of a dangerous condition for pedestrians, since it was not foreseeable that a pedestrian would be crossing in the area. Furthermore, the defect was described by Mr. McNeil as trivial even after the intervening freeze/thaw cycle (T: 108; 135). The State cannot be held liable for a trivial defect merely because Claimant stumbled over it, especially while crossing outside of a crosswalk, wearing flip-flops, carrying a child and admittedly not looking down (see Zalkin v City of New York, 36 AD3d 801 [2d Dept 2007]).

Constructive Notice

This Court's decision and order denying summary judgment determined that Claimant had raised issues of fact as to whether the State had constructive notice of the defect at issue. The preponderance of the credible evidence presented at trial resolved those issues in favor of the State. As Mr. McNeil testified, the defect was minor and not detected during his inspections (T: 108-109). More important, the alleged pothole was not in an area where it was foreseeable that pedestrians would walk, especially given the adjacent sidewalk. Finally, Claimant failed to establish the size of the defect on the date of the accident, since there had been a five month gap and a freeze/thaw cycle between the date of the accident and the date the defect was measured.

Proximate Cause

The State's actions were not a substantial factor or the proximate cause of Claimant's injuries. In fact, the evidence established that Claimant's crossing in the middle of a heavily trafficked road, near a curb cut for vehicular traffic, carrying a child, wearing flip-flops and not looking down were the substantial factors causing this accident.


In summary, the Court has considered the applicable law as well as the evidence, including a review of the exhibits and listening to the witnesses' testimony and observing their demeanor. The Court finds that Claimant failed to establish her Claim, by a preponderance of the credible evidence, because she did not establish that a duty of care on the part of the State had been breached, that a dangerous condition existed, or, assuming that one did exist, that the State either created the dangerous condition, or had actual or constructive notice thereof, and failed to alleviate the condition within a reasonable time. Furthermore, the weight of the credible evidence did not establish that the State's actions or lack of action were substantial factors causing Claimant's injuries. Accordingly, Claim No. 131317 is dismissed.

All motions upon which the Court reserved decision at trial are hereby denied. All objections upon which the Court reserved determination at trial are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

December 8, 2021

Hauppauge, New York


Judge of the Court of Claims


References to the trial transcript are indicated here as (T: ).