Claimant, John Curanaj, filed the instant claim alleging negligence on the
part of the State of New York in the design, signing and maintenance of its
property on Route 82 adjacent to the premises known as 2076 Route 82, in the
area of utility pole No. 25685P of The Central Hudson Gas and Electric Company.
A bifurcated trial was held and this decision pertains solely to the question of
The facts elicited at trial established that on June 4, 1995, the claimant,
Mr. Curanaj, while mowing a strip of grass adjacent to Route 82 in the Town of
La Grange in Dutchess County, had his riding mower tip over causing him
substantial and permanent injuries.
Mr. Curanaj testified through an interpreter that he rented the premises from
his brother. As part of his responsibilities as a tenant, he maintained the
premises and mowed the lawn. He also mowed a strip of land fronting on Route
82, that was adjacent to the property. He used a Snapper riding mower to
complete this work.
On the day of the accident, he completed mowing his lawn, then started to cut
the State-owned right-of-way that was adjacent. As was his custom, he backed
the mower to the point where his neighbor, Mr. Nazzaro had stopped his cutting
(Trial Record, hereinafter referred to as "TR" Vol I, p. 171). Mr. Curanaj then
put the mower in forward drive and mowed the area running along Route 82 until
he reached his property. He then disengaged the mowing blade and backed up to
the area where he had begun (TR Vol I, pp. 133-140). He then re-engaged the
cutting blade and proceeded to cut the area to his right, which was close to the
wooded area. As he moved forward, the right front wheel of the mower came into
contact with a hole or depression and veered to the right (TR Vol I, p.132). He
attempted to turn or direct the mower to the left, but it kept moving toward the
right into the wooded area. Mr. Curanaj testified that he had never seen the
culvert area into which he had fallen this despite the fact that he had lived
on the premises for approximately a year and a half and had mowed the strip in
question about 20 times over that period. He also stated that he always
employed the same procedure and had never tried to get closer to cut the wooded
area (TR Vol I, p. 99).
On cross examination Mr. Curanaj was challenged concerning his credibility.
The attorney for the defendant questioned the numerous discrepancies between the
original answers at the deposition and his testimony on direct examination. He
also questioned his need for an interpreter, despite the fact that he has lived
and worked in this county since 1969 and had passed a written real estate
broker's license test. The State's attorney challenged the fact that Mr.
Curanaj claimed not to have ever looked at the area where the accident occurred.
Finally, he questioned whether Mr. Curanaj was being truthful when he stated
that he always followed the same procedure in mowing the strip next to the
wooded area (TR Vol I, p. 143).
The claimant also called Mr. Nazzaro, his next-door neighbor, who had also
mowed the strip between Route 82 and the wooded area. Mr. Nazzaro testified he
had never had a problem of stability with his hand mower in cutting this area
(TR Vol I, p. 121-122). He also stated that he was aware of the culvert, having
seen it even before he took title to the property (TR Vol I, p. 127). He also
opined the culvert was "obvious" (TR Vol I, p. 129).
Mr. Dalbo, a surveyor, also testified for the claimant. He prepared a
topographical map showing the elevations in the area involved in the accident.
The surveyor transposed marks from claimant's photograph of the site (Clt's.
Ex. 25) to his map (Clt's. Ex. 44) in order to show the elevation of the area.
He stated that the hole or depressed area, designated as the area within the
smaller circle, was about 6 or 7 feet from the road (TR Vol I, p. 81). He
opined that the area in the small circle was in a downgrade area. He admitted
on cross examination that there was no indication of a hole on his exhibit (TR
Vol I, p. 90).
An engineer, Mr. Levine, also testified on behalf of claimant. He stated that
in his opinion the claimant's mower wheel had fallen into what in essence was a
hole caused by erosion. He opined that "severe erosion" had been caused by
multiple acts of commission and omission on the part of the State. He stated
that the erosion resulted from poor design and construction error in removing
the top section of the culvert. He noted that it was exacerbated by the lack of
maintenance, signage and inspection (TR Vol II, p. 333). On cross examination,
Mr. Levine admitted that he first visited the area approximately 4 years after
the accident. He also agreed that the survey (Clt's. Ex. 44) did not depict a
hole at the location where he stated that he had found one (TR Vol II, p. 387).
He also agreed that the pictures taken after the accident, and which claimant
stated accurately represented the area at the time of his accident, did not
show any hole, but at most had an area that appeared matted down. He further
agreed that no erosion existed in the area as seen in Claimant's Exhibits 1-9,
though he had described the erosion as being "severe" (TR Vol II, p. 368). In
fact he admitted that he altered the area by pushing down the grass and breaking
it off in an attempt to show the hole or depression (TR Vol II, pp. 381-382).
It is well settled that the State has a nondelegable duty to adequately design,
construct and maintain its roadways in a reasonably safe condition (
, Gomez v New York State Thruway Auth.
, 73 NY 2d 724;
Friedman v State of New York
, 67 NY 2d 271; Weiss v Fote
, 7 NY
2d 579; Zalewski v State of New York
, 53 AD 2d 781). Defendant,
however, is not an insurer of the safety of its roadways and the mere happening
of an accident on State property does not render the defendant liable
, Tomassi v Town of Union
, 46 NY 2d 91; Brooks v New York
State Thruway Auth.
, 73 AD 2d 767, affd
51 NY 2d 892). Claimant has
the burden of establishing that defendant was negligent and that such
negligence was a proximate cause of the accident (see
, Bernstein v
City of New York
, 69 NY 2d 1020, 1021-1022; Marchetto v State of New
, 179 AD 2d 947; Demesmin v Town of Islip
, 147 AD 2d 519).
Liability will not attach unless defendant had actual or constructive notice of
a dangerous condition and then failed to take reasonable measures to correct the
, Rinaldi v State of New York
, 49 AD 2d 361).
After reviewing all of the credible evidence, the Court finds that the State
exercised reasonable care in its maintenance and design and construction of the
culverts and its surrounding area. Even if there had been a breach, the sole
proximate cause of the accident was the action of the claimant in failing to
see what should have been seen. On the issue of the claimant's credibility,
which the attorney for the State raised on cross examination, there are
numerous factors that militate against resolving this issue in his favor.
First, the Court finds it difficult to accept his testimony that he never
noticed the wooded area, despite the fact that he mowed the area almost 20 times
and lived in the area for almost a year and a half. It would be difficult for
any reasonable person, even without a background in real estate, to have ignored
an area which his neighbor described as "obvious". However, when one considers
Mr. Curanaj's background in real estate, it is inconceivable that he did not
inspect the area adjacent to the property where he and his family lived. It
also appears too convenient that he misunderstood all of the damning questions
asked him at his examination before trial (see TR Vol II, pp. 214-218 for
changes in the claimant's oral examination before trial). He had taken at
least one course in English, spoken it for approximately 30 years and passed his
real estate license test in that language. Finally, the witness called by him
failed to substantiate his version of the events leading up to the accident.
His surveyor, Mr. Dalbo, while noting a decline in the grade as the land moved
from the road and wooded area, was unable to find a hole. Similarly, Mr.
Levine, was unable to find a hole-like depression or illustrate it without
manufacturing it himself. Assuming arguendo that there was a depression on the
grass strip, it is hard to see how the claimant's mower could have fallen into
it or that the State was responsible for its creation. Mr. Dalbo, the
surveyor, testified that the "hole" was between 6 and 7 feet from the road's
shoulder. The mower in question, according to the exhibit in evidence appears
to be no greater than 30" in width (Clt's. Ex. 54). Accordingly, two passes of
the mower, which was the number of passes the claimant testified he always
made, (TR Vol I, pp. 143, 147) would still put the right wheel of the mower 1
to 2 feet from the "hole". In fact the front wheels appear to be a few inches
narrower than the blade area, which at most would be 30 inches (Clt's. Ex. 54,
p. 4, Fig. 2). Similarly, the claimant's expert Mr. Levine, argued that the
"serious erosion" took place over a period of time, starting when the culvert
modification was completed in 1984. If the claimant mowed the strip using the
same procedure and same line every time (TR Vol I, pp. 143, 147), he should
have encountered the "hole" earlier in the year when he mowed the strip.
Either that or the erosion occurred since the last time the claimant mowed the
strip. The facts indicate that the sole proximate cause of the accident was the
claimant's mowing too close to the wooded area. The arguments proffered by
claimant's counsel that more inspections or putting up signs would have
prevented this accident appears to be made of whole cloth. Accordingly the
motion made at the end of all evidence to dismiss the claim is now GRANTED and
the Clerk of the Court is hereby directed to enter judgement in favor of the
defendant, the State of New York. In view of the Court's finding that there was
no duty or breach thereof, the Court need not discuss the issue of