New York State Court of Claims

New York State Court of Claims

HAMILTON v. THE STATE OF NEW YORK, #2000-010-023, Claim No. 91883


Hole in park was de minimus. Defendant not liable.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Lois Booker-Williams, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 27, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant Eileen Hamilton[1]
seeks damages for injuries she allegedly sustained on June 6, 1993 when she fell on an asphalt path which circled the lake at Rockland Lake State Park. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.
The path, which was approximately 3.2 miles long, was used by walkers, cyclists and skaters. In the past, claimant and her husband had frequently walked in the park and claimant was very familiar with the path. Claimant testified that on June 6, 1993, she and her husband, Robert Hamilton ("Hamilton"), arrived at the park at 10:30 a.m. and proceeded to the path from behind the parking lot next to the boathouse.[2]
They walked from the boathouse in a southerly direction. Claimant described the path as in good condition. After they had walked approximately 10 minutes and 200 yards, claimant sensed something behind her and turned to the right toward her husband. She observed a bicycle approaching them from a distance of less than 10 feet. Claimant testified that she moved to her left and her left foot got stuck in a hole located in the middle of the path. Her leg gave way and she fell. She did not see the hole before falling. Claimant stated that she was not looking down at the pavement; rather she was looking ahead as she walked. Claimant described the hole as deep enough to fit her foot up to her ankle, approximately 6 inches deep.
Before reporting the accident, claimant and Hamilton went to Nyack Hospital. They returned to the park later that day. Hamilton reported the accident to a park employee, who walked Hamilton to the site of the accident, while claimant remained in the car. Claimant maintained that the park employee was David Ries, whom she saw later at an EBT and at trial.

The park employee prepared a Patron Accident Report (Ex. 4). The report indicated that it was completed by Michael Grillo and reviewed by David Ries (Ex. 4). The report stated, "[p]ot hole inspected by David Ries; found an indentation about ½ " deep and 5" long past the fishing station on bike path" (Ex. 4). Claimant testified that the size noted on the report was wrong. She also testified that the report was incorrect in stating that the biker was traveling in the opposite direction rather than approaching her from behind. She said that she saw the report for the first time at trial.

On cross-examination, claimant was confronted with the "Notice of Claim"[3]
that she had signed. It stated:
said hole/depression was ½" deep and 5" long and is past the fishing station on the bike path. Said hole/depression was confirmed by David Ries-Park Supervisor on the day of the accident

(Ex. H).[4] Claimant acknowledged that she signed this document; however she maintained that she corresponded with the attorney only by mail and that the description on the form did not accurately describe the hole. Claimant was shown a photograph of a hole in the path taken by David Ries on the day of the accident (Ex. F). Claimant testified that the photograph did not fairly and accurately depict the hole that caused her accident.
Robert Hamilton testified that he and claimant walked on the path for ten minutes, approximately 200 to 300 yards beyond the boathouse, when claimant fell as she stepped into a hole that she had not previously observed. Hamilton took claimant to the hospital. Later that day, they returned to the park. Hamilton reported the accident at the park office to an employee, whom Hamilton identified as David Ries. Hamilton further testified that he and Ries inspected the hole. Like claimant, Hamilton testified that he saw the accident report for the first time at trial. He insisted that the report did not accurately describe the hole.

Hamilton testified that the day after the accident, he returned to the park and measured the hole at one and a half feet long, one foot wide, and five inches deep. Like claimant, Hamilton acknowledged his signature on the Notice of Claim, which described the hole as ½" deep and 5" long, and despite his signature, testified that the description was not accurate.

David Ries, the supervisor of the park since 1992, testified that on the date of claimant's accident, there were three permanent staff members who supervised 50 to 60 seasonal employees. Ries explained that he or a staff member inspected the path daily by driving in a vehicle at a speed of three to five mph. He also stated that park rangers walk the path daily, looking for any potential hazards. Additionally, an estimated two million people visit the park annually and report problems to the park staff. Ries stated that he had performed 400 to 600 inspections during the two years prior to claimant's accident, and in his experience, a hole of the size described by claimants at trial would not be overlooked and could not materialize overnight. The path was inspected the day before claimant's accident and Ries stated that the park policy was to fill potholes, which measured at least two to six inches deep, within 24 hours of inspection. Ries further maintained that, on the date of claimant's accident, the path was inspected. After claimant's accident, Ries inspected the path south of the boathouse. He slowly walked approximately 500 yards, scanning the path for any unsafe conditions. The only hole/depression that Ries found was the one noted on the accident report, which was ½" deep and 5" long. Ries photographed the hole (Ex. F). He determined that the hole was too shallow
to fill and he took no further action, other than to record his findings on the Patron Accident Report (Ex. 4).
Ries testified that he met claimants for the first time at his EBT. Ries maintained that he did not inspect the site with Hamilton and was not the park employee to whom Hamilton had reported the accident. Ries explained that his duties did not include completing accident reports, unless he had personally witnessed the accident. Ries did not witness claimant's accident. He inspected the path subsequent to claimant's accident and wrote the information on claimant's Patron Accident Report at that time.

The State, as owner and operator of the park, has a duty to use reasonable care in maintaining the property in a reasonably safe condition to prevent the occurrence of foreseeable injuries (
see, Basso v Miller, 40 NY2d 233, 241). The State also has a duty to warn the public of any latent dangers that are not readily apparent (see, Walter v State of New York, 185 AD2d 536). There is no duty, however, to warn against a condition which is open and obvious and readily observable by the reasonable use of one's senses (see, Paulo v Great Altantic & Pacific Tea Co., 233 AD2d 380).
Moreover, "[n]egligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of claimant to show affirmatively by competent evidence that the injury complained of was caused by reason of some breach of duty by the State. Negligence must be proven" (
Mochen v State of NewYork, 57 AD2d 719, 720). In order to prevail on their claim, claimants must establish: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that claimant sustained damages (see, Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd. 88 NY2d 955).
Upon review of all the trial evidence and upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that
claimants have failed to establish that defendant is liable. Significantly, the Court finds that the testimony of claimant and her husband regarding the size of the hole strains credulity. Notably, their description of the hole at trial was wholly inconsistent with the Notice of Claim that they had both signed, and their testimony attempting to explain this discrepancy was not persuasive.[5] Conversely, the Court finds the testimony of David Ries to be most credible and the Court accepts exhibit F as an accurate depiction of the defect found in the path on the date of claimant's accident, which is also consistent with Ries' description as set forth in the Patron Accident Report (Ex. 4). Further, Ries' testimony established that the path was inspected daily and that a hole, of the size described by claimants at trial, would not be overlooked and could not materialize overnight.
Accordingly, the Court finds that the only defect in the path on the date of claimant's accident was a hole approximately ½" deep and 5" long and that defendant's failure to repair such defect prior to claimant's accident does not constitute negligence (
see, Trincere v County of Suffolk, 90 NY2d 976 [trip and fall claim based upon a cement slab elevated a little over a half inch above the surrounding slabs was properly dismissed given all the facts and circumstances presented including the dimension of the defect in issue]; Iadarola v Meadow Plaza Dev. Corp., ___AD2d___, 707 NYS2d 872 [considering width, depth, elevation, irregularity, and appearance of defect, Court correctly determined it was a trivial defect as a matter of law]; Riser v New York City Hous. Auth., 260 AD2d 564 [pavement which was elevated approximately one inch above surrounding pavement was a defect too trivial to be actionable]; Tripoli v State of New York, 72 AD2d 823 [claimant did not establish State was negligent in its maintenance of park where claimant fell in hole one foot wide and eight to twelve inches deep in grass covered portion of parking lot]).
Accordingly, defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.


June 27, 2000
White Plains , New York

Judge of the Court of Claims

[1] The claim of Robert Hamilton, claimant's husband, is deriviative. Unless otherwise specified, claimant shall refer to Eileen Hamilton.
[2] The boathouse was alternately referred to as the fishing station.
[3] Claimant used a Blumberg Notice of Claim Form which is appropriate for actions against the City of New York; the Court, in its discretion, construed the form as a Notice of Intention to File a Claim against the State of New York.
[4] The Verified Claim at ¶ 8 and the Verified Bill of Particulars at ¶ 7 also tracks this language.
[5] As noted supra, their trial testimony also differed from the description set forth in the Verified Claim and the Bill of Particulars. On the record presented, the Court finds no basis for granting claimant's application to conform the pleadings to the proof given the lack of credible testimony presented by claimants and the resulting prejudice to defendant if such application were to be granted (see, Murray v State of New York, 43 NY2d 400). Accordingly, claimants' application is DENIED.