New York State Court of Claims

New York State Court of Claims

COTTER v. THE STATE OF NEW YORK, #2001-001-511, Claim No. 99844


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):

Susan Phillips Read
Claimant's attorney:
Siben and Siben, LLPBy: Andrew Schaber, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: John Shields, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
April 12, 2001

Official citation:

Appellate results:

See also (multicaptioned case)

On Sunday, October 5, 1997, claimant John Cotter ("claimant") and his girlfriend, Terri Franklin ("Franklin"), bicycled to Belmont Lake State Park on Long Island, arriving in the early afternoon for an excursion in the park. After enjoying the "full sun" of this "beautiful afternoon,"[1]
they decided to leave through the park's main entrance, a route leading them down a two-lane concrete road extending under an overpass carrying the east and west-bound traffic lanes of the Southern State Parkway.
Claimant and Franklin were bicycling under the overpass, traveling single file against the traffic and at a "nice slow" or "leisurely" pace of perhaps eight miles per hour with claimant anywhere from 20 to 100 feet ahead of Franklin, when both spotted a drainage grate in the road ahead. Claimant realized that he was headed straight for a "very, very long, dark section" of this grate, but not soon enough to avoid it: within a "split second" after apprehending this "dark spot," the front wheel of his bicycle "dropped down" into a "big hole" in the grate and he hurtled over the handlebars and fell to the pavement, landing on his face.

Claimant, an experienced bicyclist, had bicycled in the park "hundreds of times" and had bicycled under other overpasses in the park, although he had never before "used this entrance." Claimant testified at trial that he was aware that roads were unlit beneath the park's overpasses; at his deposition, he testified that "coming into the tunnel [i.e., the road under the overpass] from sunlight it's pitch black at first until [your eyes] adjust, which really doesn't get to occur if you're biking through or driving through, I guess." Claimant was wearing nothing on his head at the time of his accident and neither he nor Franklin recalls whether he was wearing sunglasses.

Claimant subsequently filed this claim seeking damages from defendant State of New York ("defendant" or "the State"), arguing that the defect in the grate constituted a dangerous condition, which was the proximate cause of his injuries; and that this defect resulted from deterioration and rotting of metal over such an extended period of time that defendant had constructive notice of it. The State counters that claimant's own culpable conduct caused or, at least, contributed to his accident; claimant's injuries are attributable to the inherent risks of engaging in recreational bicycling, an athletic pursuit in which he voluntarily participated and for which the State has no liability so long as conditions were as safe as they appeared to be; and claimant has failed to establish the State's notice of any dangerous condition.

I. Discussion
In general, a bicyclist riding upon a State roadway is subject to the same duties applicable to a motorist and, like a motorist, "has a right to find the roadway in a reasonably safe condition, free of debris or defects, and may cast the [State] in damages for any injuries he suffers as a result of a failure so to maintain provided, of course, the other elements of the cause of action are established" (
Viggiano v State of New York, 47 Misc 2d 205; see also, Vehicle and Traffic Law, §§ 1231, 1232, 1234). Those other elements include the existence of a dangerous or defective condition proximately causing the accident and injuries, and defendant's creation or actual or constructive notice of this condition (see, Rinaldi v State of New York, 49 AD2d 361). Moreover, "[t]o 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;" a general awareness that a dangerous condition may exist is legally insufficient to create constructive notice (Gordon v American Museum of Natural History, 67 NY2d 836, 837).[2]
Claimant and Franklin characterized the grate as "rotted" and "eroded" respectively; claimant estimated the dimensions of the "hole" that trapped his bicycle's front wheel as 1-1½ inches wide and 18 inches long. New York State Park Ranger Christopher Letz ("Letz"), who responded to the accident, prepared a "New York State Incident Report" (claimant's exh. 3) in which he described the grate as "defective [because] missing pieces in grate (apparently due to weathering and prolonged deterioration over time) created a long narrow hole (approx. 24" long) in grate which was wide enough to trap a bicycle tire." Sal Buonomo ("Buonomo"), the park manager responsible for Belmont Lake State Park, also responded to the accident and prepared a "Patron Accident Report" (claimant's exh. 5) in which he stated that claimant "alleges that while riding his bike, his front tire. . . . got caught in the grate and the rear of the bike came up, throwing [him] from his bike," which "result[ed] in a 1"-1½" laceration over his [right] eye. . . . also complained of pain in his [right] shoulder. . . . upon inspection . . . the grate was noted to be rotted."

The photographs taken by Franklin when she returned to the park at about 6:00 p.m. in the evening of the day of the accident (claimant's exh. 1 [photograph of grate] and exh. 2 [a photographic enlargement of exh. 1]) depict a reticulated metal grate, approximately three feet long and two feet wide, set into and flush with the surface of the road and adjacent to the curb. The grate consists of eight or nine evenly spaced metal bars running parallel with the centerline of the road and transecting rows of diamond-shaped metal lattice the diagonal ribs of which fill the narrow spaces separating the bars. The diagonal ribs are missing from about half of the interstice separating the lengthwise edge of the grate farthest from the curb and the adjacent, parallel metal bar, forming a gap approximately 18 inches long and 1½ inches wide. The grate appears otherwise intact; it does not appear generally deteriorated.

Buonomo testified that between roughly 1993 and 1995, drainage grates with longitudinal openings wide enough to entrap a narrow bicycle tire were phased out at Belmont Lake State Park and replaced with these bicycle safe grates featuring diagonal ribs in the openings. He also testified that in the spring of 1996 and the spring of 1997, all of the grates in the park were checked and cleaned and an outside firm was hired to "shot vacuum" the dead leaves. He also testified that when the grates were inspected after the rough winter of 1996, cracks were found in the pavement near some of them (although not in the pavement near the grate where claimant's accident occurred). These cracks had been caused by deteriorating mortar in the blocks holding up the grates, and repairs were made. After claimant's accident, Buonomo covered the defective grate with plywood and marked it with a traffic cone; as was also his practice whenever anything needing to be fixed was brought to his attention, he promptly made out a work order to replace this grate, which work was completed on October 16, 1997 (claimant's exh. 6).

Claimant does not contend and no evidence suggests that defendant created or had actual notice of the 1½-inch wide and 18-inch long gap in the grate. Claimant instead argues that this defect constituted a dangerous condition resulting from deterioration and rotting of metal over such an extended period of time that defendant perforce had constructive notice of the danger. In the Court's view, however, this defect was so slight that danger was not reasonably to be anticipated from it and, as a corollary matter, defendant could have no constructive notice of any danger posed by it. In reaching this conclusion, the Court considers not only the minor nature of the defect, but also other facts and circumstances bearing on whether its presence rendered the road dangerous for a bicyclist.

The 1½-inch wide and 18-inch long gap was within a grate otherwise intact and flush with the surface of the road. According to the testimony of both claimant and Franklin, the grate was visible to a bicyclist traveling the road under the overpass. In addition, the grate extended only two feet from the curb into a paved travel lane, leaving plenty of room for safe passage for any bicyclist traveling along near the right-hand curb with the flow of the traffic (
see, Vehicle and traffic law § 1234).[3] A bicycle is, of course, less stable than an automobile; defects in a road of no consequence to a motorist (such as this one) may cause accident and injury when encountered by a bicyclist. This circumstance does not, however, require the State in the exercise of reasonable care to maintain its roads in such a state of repair and unmarred smoothness that a bicycle may travel over them with assured safety. In the well-turned and well-worn words of Chief Judge Cooke: "A municipality, of course, is not an insurer of the safety of its roadways" (see, Tomassi v Town of Union, 46 NY2d 91, 97; see also, Sutphen v Town of North Hempstead, 80 Hun 409).
Moreover, even assuming that the 1½-inch wide and 18-inch long gap constituted a dangerous condition, claimant has not proved defendant's constructive notice of it. To establish constructive notice, claimant relies principally on the incident report (claimant's exh. 5), in which Letz attributes the gap to "weathering" and "prolonged deterioration over time;" and the photographs (claimant's exhs. 1 and 2;
see, Batton v Elghanayan, 43 NY2d 898; Karten v City of New York,109 AD2d 126), which, claimant argues, confirm a state of decay that must have come into existence over such a length of time that the State should have acquired knowledge of it in the exercise of reasonable care.
First, as defendant's counsel pointed out and Letz echoed, he is no expert on the structure, properties and behavior of metals exposed to the elements, whatever he may have meant when he attributed the defect in the grate to "prolonged deterioration over time." Next, only a discrete portion (i.e., a gap 1½ inches wide and 18 inches long) of an otherwise intact grate is missing, and the Court is unable to conclude from the photographs or any testimony what may have caused this to happen or whether the gap increased in length over time or was always the same size or when a gap of any size first formed. To infer intelligent answers, the Court would have to have information or expert opinion about, for example, the metal or alloy making up the grate and whether is was coated or treated to prevent or retard deterioration from exposure. For all the Court can tell from the evidence, something may have caused the ribs to bend and break suddenly, and the "rotting" described by the witnesses may betoken nothing more than oxidation of exposed, broken edges.[4]
From Buonomo's testimony, the Court knows that this grate was originally installed sometime between 1992-1993 and 1995, and did not, to Buonomo's knowledge, exhibit any defects when inspected and cleaned in the springtime.
Finally, defendant cites three cases from the Third Department for the proposition that in order to establish constructive notice, claimant
must show "not only that the defect at issue was readily apparent, but also that the municipality had either recently inspected the subject area for the purpose of discovering such defects or had performed work thereon" (Brzytwa-Wojdat v Town of Rockland, 256 AD2d 873 [bicyclist injured when she hit a pot hole in town road]; Eppenstein v Town of Greenburgh, 228 AD2d 771 [bicyclist injured when front wheel of his bicycle became entrapped within 3-inch wide and 3-inch deep gap extending along and separating driving lanes of a town road]; Mitchell v Town of Fowler, 231 AD2d 170 [motorcyclist injured when he hit pot holes in town road]; see also, Giganti v Town of Hempstead, 186 AD2d 627 [pedestrian slipped and fell on village sidewalk replaced at request of town]). Claimant counters that this case law addresses a species of constructive notice relevant only as a narrow exception to a prior written notice law.
Section 65-a (1) of the Town Law requires prior written notice as a condition precedent to suit for injuries sustained on account of physical defects in roadways (i.e., "injuries . . . sustained by reason of any highway . . . being defective or out of repair, unsafe, dangerous or obstructed"); or, in the absence of prior written notice, common-law constructive notice (i.e., that "such defective, unsafe, dangerous or obstructed condition existed for so long a period that the same should have been discovered and remedied in the exercise of reasonable care and diligence"). The Municipal Home Rule Law authorizes local laws relating to a town's property, affairs or government so long as the enactments are not inconsistent with the Constitution or any general law (Municipal Home Rule Law, § 10 [1]), and a town law failing to provide for constructive notice of a defect in a town road is inconsistent with Town Law § 65-a (1); however, an inconsistency between a town and general law is permissible unless the Legislature has expressly forbidden supersession (Municipal Home Rule Law § 10 [1] [ii] [d] [3]), and the Legislature has not prohibited a town from enacting a local law that fails to provide for constructive notice of a defect in the absence of prior written notice (
see, Bacon v Town of Jerusalem, 244 AD2d 940; see also, Kamhi v Town of Yorktown, 141 Ad2d 607, affd 74 NY2d 423 [town seeking to invoke supersession authority must substantially comply with Municipal Home Rule Law § 22 (1), which requires a municipality to express intention to supersede State law with definiteness and explicitness]).
Brzytwa-Wojdat, Eppenstein and Mitchell all appear to recognize an exception from a prior written notice law when a town has or should have had notice of a dangerous condition because it inspected or performed work upon the specific area shortly before an accident occurred there, notwithstanding the town's failure to provide for constructive notice in a local law that is either valid or unchallenged as a legitimate exercise of the town's authority to supersede Town Law § 65-a (1). This state of affairs is consistent with claimant's notion that these cases represent a peculiarly narrow version of constructive notice applicable only in the particular context of a prior written notice law governing defects in a municipal roadway. Moreover, the Court of Appeals decision in Amabile v City of Buffalo (93 NY2d 471) is consistent with claimant's contention that it is permissible for this Court as fact-finder to find constructive notice of a roadway defect on some basis other than a recent inspection for defects or recent road work in the specific area of an accident.
Amabile, the Court of Appeals held that constructive notice of a sidewalk defect does not satisfy a statutory requirement for prior written notice to a municipality. In so doing, the Court distinguished Blake v City of Albany (48 NY2d 875), the putative progenitor of the constructive notice exception in Brzytwa-Wojdat, Eppenstein and Mitchell,[5] by observing that in Blake, the City of Albany had withdrawn any reliance on its prior written notice law on its appeal to the Court of Appeals. This presented the Court of Appeals in Blake with a common-law negligence action and the question of whether the record supported the jury's finding of constructive notice in its general verdict, which the Court found that it did on any of several theories. Those theories included an inference that the condition had come into existence over a sufficiently long period of time for the city to have discovered and corrected it, which the jury might have based on its evaluation of photographs (see, Blake v City of Albany, 48 NY2d at 877-878, supra).
Thus, claimant need not show that the State inspected or performed work in the immediate area of the grate shortly before the accident in order to establish constructive notice. As discussed earlier, however, the Court finds that claimant has not established by a fair preponderance of the credible evidence that a dangerous condition existed; or, even assuming otherwise, that a readily apparent dangerous condition existed for a sufficient length of time prior to claimant's accident to permit defendant's employees to discover and remedy it. In light of this disposition, the Court need not and does not reach the questions of proximate cause and claimant's culpable conduct raised by defendant.

II. Conclusion
Based on the foregoing, the Court finds that claimant has not proved the State's negligence by a fair preponderance of the credible evidence. The claim is dismissed and the Chief Clerk is directed to enter judgment accordingly. Any motions on which the Court previously reserved judgment or which were not previously decided are denied.

April 12, 2001
Albany, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, quotations are from either the Court's trial notes or the audiotapes of the trial on liability.
[2]The Court agrees with claimant that the sports injury cases cited by defendant are not relevant to this claim: defendant's liability, if any, is controlled by the principles applicable to claims for negligent highway maintenance/premises liability.
[3]The Court recognizes that claimant and Franklin were, in fact, traveling near the left-hand curb against the flow of the traffic.
[4]In general, the grate does not appear particularly rusty.
[5]Of course, Amabile has cast doubt on the fate of this exception, whatever its scope (see, Nixdorf v East Islip School District, 276 AD2d 759 [exceptions to town's prior written notice law limited to those situations where town created defect in roadway or there was a special use of the property and a special benefit derived by the municipality, citing Amabile]; but see, Norton v Village of Endicott, 720 NYS2d 412 [where village seeks dismissal of claim for negligent maintenance of roadway, court notes an exception to prior written notice law where municipality has or should have knowledge of a defective or dangerous condition, quoting Klimek v Town of Ghent, 114 AD2d 614]).