New York State Court of Claims

New York State Court of Claims

ANDUJAR v. THE STATE OF NEW YORK, #2000-014-114, Claim No. 94786


Claim alleging injury resulting from a defect in the surface of a skating rink is dismissed after trial; the claimant did not establish that the defendant either created or had actual or constructive notice of a dangerous condition.

Case Information

PAOLA ANDUJAR, an Infant, by her Mother and Natural Guardian, SILDA RAMIREZ, and SILDA RAMIREZ, Individually
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):

S. Michael Nadel
Claimant's attorney:
Greenberg & GreenbergBy: Arthur R. Greenberg
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Paula Pavlides, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 30, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


According to the testimony of the infant claimant, Paola Andujar, she was injured while rollerblading in the early evening of July 2, 1996, at the skating rink in Riverbank State Park. Ms. Andujar testified that she had been skating with her friend, Ms. Concepcion, for several hours when, at approximately 7:00 P.M. a skate wheel on her left foot became stuck in a hole in the rink's surface, causing her to fall. She said that she had not noticed the hole earlier, and did not actually see it until approximately one hour after she fell. She was twelve years of age at the time of the incident.

After the fall, Ms. Concepcion left the rink to find Ms. Andujar's mother, Silda Ramirez, who had accompanied them to the rink According to the claimant, when her mother arrived on the scene, approximately 45 minutes later, she did not tell her how she had fallen, because at that time she did not know what had caused her to fall. She also testified that she did not point out the hole to anyone else there. She first told her mother that her fall had been caused by a hole on the rink's surface when they arrived home that day.

Ms. Concepcion testified for the claimants. She stated that about three or four hours after they began skating, the claimant's skate became stuck in a hole in the rink's concrete surface, causing her to fall. She testified that she had first noticed the hole in the rink surface about two to three hours after they had begun skating that day. She did not point out the hole to her friend or to the skate guards at the rink.

Ms. Concepcion testified that approximately two or three days after the fall, Ms. Ramirez and she returned to Riverbank State Park to take photographs of the rink (Exhibits 1 and 2). Both Ms. Concepcion and Ms. Andujar testified that Exhibit 1 is a photograph of the hole that Ms. Andujar's skate went into causing her to fall; they both testified that they had not noticed the hole the day before the incident, when they had skated at the rink. Ms. Concepcion described the dimensions of the hole as being "about three or four inches wide, and two or three inches deep."

The defendant called the claimant Silda Ramirez as a witness. She testified that she did not see her daughter fall, and that her daughter did not tell her, while they were at the skating rink, that she had fallen into a hole because she was crying. She also said that she did not notice the hole because she was preoccupied with her daughter's condition.

Darcel Michel, the acting head of Riverbank State Park, testified on behalf of the defendant. At the time of the claimant's accident, he was responsible for overseeing the operation of the roller skating rink. Mr. Michel testified that he would inspect the rink surface on a daily basis to determine if maintenance was needed, and that he inspected the rink on July 2, 1996. He testified further that during the summer of 1996 there were two skating sessions per day, and that at the beginning of each session skate guards would inspect the rink surface for potential hazards, which would be reported to a supervisor. If the problem could be fixed right away it would be, and if not, the area would be barricaded off by orange cones, and a work order would be written. Mr Michel stated that he conducted a search for any written reports or complaints pertaining to the incident underlying this claim, and did not find any. He stated that he did not learn of the incident until after the claim herein was filed. He testified that he did not observe any defects on the surface of the rink on July 2, 1996, and that he never observed a hole of the dimensions testified to by Ms. Concepcion. Mr. Michel said that it would have been impossible for him or any of his staff to overlook a defect of that nature.

"[T]he mere happening of an accident does not constitute negligence."
Candelier v City of New York 129 AD2d 145, 148. As in any negligence case, the threshold issue is whether the defendant "had a legally cognizable duty to prevent the accident" in which the claimant was injured. DiPonzio v Riordan 89 NY2d, 578, 582.
As clearly stated by Judge Bell of this Court in
Davis v State of New York (Claim No. 92168, unreported decision filed January 30, 1998), "The State's duty with respect to the maintenance of its facilities is to use reasonable care to guard against foreseeable hazards or dangerous conditions [citations omitted]. The measure of reasonableness is essentially factual in nature. Since the State is not the insurer of its premises, before a finding that the State breached its duty of reasonable care can be made, claimant had a duty to prove by a fair preponderance of the evidence that the State created a dangerous condition or had actual or constructive notice of a dangerous condition and unreasonably failed to remedy the condition [citations omitted]."
Upon consideration of the testimony and the evidence at trial, the Court finds that the claimants have failed to meet their burden of establishing, by a fair preponderance of the credible evidence, that the defendant either created or had actual or constructive notice of a dangerous condition. The claim is therefore dismissed.

All motions made at trial not specifically ruled upon are denied.


October 30, 2000
New York, New York

Judge of the Court of Claims