New York State Court of Claims

New York State Court of Claims

MILANO v. THE STATE OF NEW YORK, #2001-001-523, Claim No. 95184


The Court grants defendant's motion to dismiss the claim, which was made at the close of claimant's proof, for failure to establish a prima facie case of negligence.

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:
Joseph A. Romano, Esq.
By: Sacks and Sacks, Esqs.Scott N. Singer, Esq., and Sanford Konstadt, Esq., Of Counsel
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Grace A. Brannigan, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
June 18, 2001
(corrected version of decision)
Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Robert Milano ("claimant"), a Senior Electrical Technician for the Consolidated Edison Company ("Con Ed"), brought his claim against defendant State of New York ("defendant" or "the State") to seek damages for injuries that he allegedly sustained on August 29, 1996 at the premises of the Bronx Psychiatric Center ("the Center"), which he was visiting in order to read the meters and inspect the computers in a so-called "Con Ed meter room" or "Con Ed computer room" located in the basement of the Center's power plant (Court exh. 1, the claim; T-I 9-11).[1]

I. Testimony

A. Claimant's direct testimony and cross-examination at trial

After claimant became responsible for the Center's account in late 1993 or early 1994, he visited the power plant roughly monthly; and on August 29, 1996, he made his regularly scheduled monthly visit accompanied by Richard Varricchio ("Varricchio"), his partner for the day (T-I 11-12). Claimant and Varricchio parked their vehicle at the rear of the power plant (T-I 13), and proceeded directly to the engineer's office on the first floor to signal their arrival before walking downstairs to the Con Ed meter room in the basement (T-I 13).

Only one stairway in the power plant leads from the first floor to the basement (T-I 14). Claimant described this stairway as having two flights of open metal-work treads or steps affixed to a stringer, separated by a landing composed of sections or plates of metal grating (T-I 14-17; exhs. 1-A through 1-G, 2-B and 3). Claimant's exhibit 3 shows this stairway to be comprised of 15 steps leading from the first floor to a landing measuring four feet by five and one-half feet, and six steps leading in the opposite direction from the landing to the basement. Claimant described the stairway as well lit and unremarkable (T-I 21).

Claimant testified that he and Varricchio went down the stairway without incident and without his noticing anything untoward (T-I 18, 19, 33), and proceeded to the Con Ed meter room where they worked for about 20 minutes (T-I 20). Claimant and Varricchio then returned to the stairway to ascend to the first floor and exit the power plant (id.). Varricchio, who was carrying a clipboard and a radio in his pocket, led the way up the stairway; and claimant, whose hands were free, followed (T-I 21).

Claimant climbed up the six steps to the landing without incident; however, he testified that
[a]s I stepped on to [the landing to] make the turn [to the next flight of stairs], I would say like it's a 90-degree angle to proceed up the next staircase, I was holding onto the handrail as I made the turn, and when I got to the one, two--the third grating, it--it opened like a trap door. It like sprung on me. My leg went down the trap between the two of them, it went straight down. I had my right foot on the--on the solid ground of the first landing--the first step above it. And basically, I almost went to a kneeling position where my--my left leg free floated in the hole. It was just a quick pop. It went down. I went through it still holding on very tight to the railing. I, you know, it happened so quick. I was nervous that I was going to fall completely through. I yelled very loudly. Richard [Varricchio] was only about maybe three or four steps in front of me. He was going up first. I yelled very loudly. Richard turned around instantly as I fell and I yelled, and he come [sic] down and he stopped just at that first step and he grabbed me with two of his --his arms and he pulled me straight up. And there was a loud clanking and the grating came up with me and just like a--the door closing behind me and it just-- that's it. He just helped up to the first solid step after that happened.
(T-I 22-23; see also, T-I 45-47).

With reference to the photographs depicting two sections of grating set perpendicular to the first step of the flight of stairs leading from the landing to the first floor (claimant's exhs. 1-D through 1-G), claimant similarly testified that
[a]s I got to the first landing, which is the only landing on the staircase where you basically have time to shift and turn to go up the next flight, just as I put my foot on that grating, I had already--had turned the turn and grabbed the handrail to make the complete turn. I had one foot on the first solid small step and my other foot was on the large grating. At that point, as I shifted, that's when the grating gave way from under me and it opened up on an angle and I went down. I slid with my left leg right through both of those gratings and down. . . . My right hand grasped the handrail very firm. . . . My right foot was just on the first stair that you could see in the picture that ascends up to the next level.
(T-I 27-28).

When asked to identify the section or plate of grating that moved, claimant replied "the first one [of the two gratings set perpendicular to the step] as I'm staring at the photos, 1-D through G"; when asked in what direction it moved, he testified that "[i]t moved down. The grating tipped completely down almost as if it dipped like a trap door, like it sprung open on me, and it tipped all the way down with my leg going through between both of them [the two gratings depicted in the photographs]" (T-I 28).

After this accident, claimant and Varricchio made their way to the power plant engineer's office on the first floor where they reported what had just happened to Ulric Assanah ("Assanah"), whom claimant described as the engineer on duty at the time (T-I 29, 32-33). Claimant, who described himself as "very visibly shaken," sat at a desk in the engineer's office for a short time; then Varricchio and he proceeded to their vehicle, and claimant sat in the passenger seat with the door open for a few minutes (T-I 29). According to claimant, the power plant engineer on duty (i.e., Assanah) came out to the truck "to see how I was doing. And we sat there and we talked" (id.).

On cross-examination, claimant acknowledged that he had taken the same route from the first floor to the basement on each of his approximately 20 to 21 visits to the power plant prior to August 29, 1996, and had never before experienced difficulty navigating the stairway or landing (T-I 40-41); the grating had not moved when he stepped on the landing on these previous occasions (T-I 50-51), nor had the grating moved, shifted or opened when he stepped on it on his way from the first floor to the basement on August 29, 1996 (T-I 42, 50); he had not made any complaints to defendant or to Con Ed with respect to the condition of the stairway's steps and landing before August 29, 1996 (T-I 41); and Varricchio did not voice any complaints about the condition of the stairway's steps or landing as he descended with claimant (T-I 42), and did not appear to experience any problem on the landing when he ascended the stairway just ahead of claimant (T-I 44-45). After claimant notified Assanah of his accident, Assanah offered him medical attention, which he turned down (T-I 47).

B. Varricchio's direct testimony at trial

Varricchio testified that he was with claimant at the Center's power plant when claimant was injured; that he and claimant walked down the stairway in the power plant from the first floor to the basement without incident on their way to the Con Ed meter room; that claimant was injured as they were climbing up the stairway to the first floor when his leg fell through the metal grating of the landing; that since he was a few steps in front of claimant, he did not see what happened, but he heard claimant cry out, turned around and saw that claimant's leg had fallen through separated sections of the landing's grating (T-I 53-55). Varricchio "went down the stairs to make sure I was on a--the first step and then I lifted [claimant] out of the--the position he was in," and "escort[ed]--I had him on my shoulder and I got him up the stairs. We went to the office of the Bronx Psych--you know, the State, and we told the gentleman there what happened and he apparently went to the scene and I brought [claimant] back to the truck" (T-I 55-56). Varricchio had never visited the Center's power plant before August 29, 1996 and has not been back since (T-I 56).

C. Assanah's direct testimony and cross-examination at trial[2]

Assanah, now the power plant's supervisor, testified that he has been employed there for 12 years (T-II 3).[3] On August 29, 1996, he worked as a stationary engineer (T-II 24-25) on the day shift from 7:00 a.m. to 3:00 p.m.; he supervised two other employees "as well as looking after the plant" by "taking care of the utilities and the boilers and the auxiliaries" (T-II 4). The engineer's office, from which the boilers are monitored, is located in the center of the power plant's first floor (T-II 4-5).

Assanah testified that as part of his daily routine, he inspected the entire power plant at the start of his shift on August 29, 1996, including the basement where the Con Ed meter room is located (T-II 7-8). When descending and ascending the stairway leading from the first floor to the basement, Assanah did not experience "any difficulty" on the stairway or landing, and did not observe anything out of the ordinary in regard to the stairway's condition (T-II 8).

Assanah testified that at "around [a] quarter to eight" a Con Ed employee arrived at the power plant "to take the monthly readings;" and descended the stairway from the first floor to the basement. This Con Ed employee then returned to relate these readings to Assanah before leaving the premises (T-II 9).

Later during the shift, claimant--"another Con Ed guy who normally comes and takes the readings also"--arrived at the power plant. He was alone, and he arrived in "a dark Jeep" devoid of any Con Ed insignia (T-II 10, 37-38). Assanah observed claimant, unaccompanied, disappear down the stairway from the first floor to the basement (T-II 10-11).

Claimant spent "a little time" in the basement and, "[w]hen he came back up, he came into the control room [on the first floor] where I was, and he told me that he had an incident on [the] stairs" (T-II 11). Specifically, claimant told Assanah, who was alone in his office at the time (T-II 36), that "he had slipped on the--on the landing" (T-II 11) and that he had "fall[en] down on the--on the landing and he was yelling help, help, but nobody responded" (T-II 17; see also, T-II 23).[4] Claimant declined Assanah's offer to call an ambulance for him (T-II 11, 17, 20). Assanah testified that claimant, who was still unaccompanied, asked to use his telephone to make a call, which he gave him permission to do (T-II 12, 42). Assanah watched claimant walk out the front entrance of the power plant, enter his vehicle and drive away; he saw no one else in the vehicle with him (T-II 13, 43-44).

Immediately after claimant left the power plant, Assanah inspected the stairway and found it to be in the same condition as always (T-II 17-18). He experienced no difficulty or anything out of the ordinary when he walked on the landing (T-II 18).

Assanah estimated that the three rectangular sections of grating or grating plates comprising the landing weigh about 50 pounds apiece and measure roughly two or three feet by two feet (T-II 15, 26, 35). These plates slide into and sit on the two or two and one-half-inch metal lip of a steel frame, which defines the perimeter of the landing approximately 52 inches above the basement floor; a plate abutted on either side by another plate rests on the metal lip on its other two sides, whereas the plate abutting the stairwell on two sides and the plate forming the verge of the landing are supported by the metal lip on three sides (id.; see also, T-II 28-30, 45-46). Assanah knew of no complaints about the condition of the stairway, or claims of injuries related to the stairway prior to August 29, 1996 (T-II 13-14). Assanah walked up and down this stairway without incident each and every day during the course of his employment at the Center; he had never stepped on the landing only to have one of the plates pop up or down (T-II 45-46).

The day after claimant's accident, Assanah's supervisor, Christopher Heaphy ("Heaphy"), asked him what had happened (see, n 4, supra), and he replied that claimant told him that he had slipped on the landing (T-II 23-24). Assanah never had any conversation with anyone from Con Ed about claimant's accident; specifically, he never met a "Mr. Wiersneck of Con Edison" (T-II 24; see also, T-II 42).

Assanah and other power plant personnel were aware that the sections of grating in the landing were removable: the plates had been removed on occasion to clean dirt and debris from the metal lip in order to forestall corrosion (T-II 22, 30). Assanah also testified to the presence of a "dent" or a one-half-inch "raised grating" in the landing near the first step of the flight of stairs leading from the landing to the first floor (T-II 25-26). He testified that this dent or one-half-inch unevenness had existed ever since he started to work at the power plant (i.e., approximately eight years before claimant's accident); and speculated that it had been caused by "[s]omething that had hit it or something, I don't know" (T-II 31).

Assanah was relieved by Mr. Aiello at about 2:30 on August 29, 1996 and shortly thereafter left the power plant for the train station (T-II 24, 41-43). He normally exits the power plant from the back entrance; the power plant's parking lot is located outside the front entrance, and claimant left the power plant through the front entrance after reporting his accident to Assanah (T-II 43-44).

D. Claimant's and Varricchio's rebuttal testimony

Claimant testified that on August 29, 1996, he and Varricchio used a radio to report his accident directly to their supervisor, Richard Wiersneck ("Wiersneck"), at Con Ed's emergency control center at about 1:50 p.m. (T-II 51); and that Wiersneck was dispatched immediately to the Center's power plant (T-II 47-48; see also, T-I 12). According to claimant, at about 2:10 or 2:15 p.m. (T-II 51) Wiersneck met him at his vehicle--"a large blue Con Edison truck, emergency lights, Con Edison decals all over it" (T-II 48)--which was parked in a service area behind the power plant (T-II 48-50; see also, T-I 13). Wiersneck "reported to my vehicle first because he parked right next to me. He came over to ask how I was and asked what happened;" and then Wiersneck and Varricchio "proceeded to the engineer's office because my supervisor wanted to see exactly what happened" (T-II 50), while claimant remained behind in the truck (T-II 51).

With respect to Varricchio's constant presence with him during the events of August 29, 1996, claimant testified as follows:
Q Now, the person who was with you, when you first came to the power plant [referring to Varricchio], was he with you at that time [i.e, at claimant's vehicle parked behind the power plant after Varricchio had radioed Con Ed to report claimant's accident]?

A Yes.

Q And did he also have to identify himself in order to gain admission?

A Yes.

Q And was he with you all the time you were at the power plant?

A Yes, he was.

Q And he is--he was the one who assisted you out from the collapsed grating?

A Yes.
(T-II 50).

According to Varricchio, he met someone whose name he believes to have been "Jianquinto" when he arrived at the power plant on August 29, 1996, not Assanah, to whom he never spoke (T-II 52-54). When asked if he had met anyone in the engineer's office after escorting claimant there in the aftermath of the accident, he replied, "[i]t would be--if I met anyone, it would be that . . . fellow I described. And I'm--I don't know his name, but I would think--I think it would be Dick Jianquinto" (T-II 53-54).

When asked, "Was Mr. Assanah in the plant utility room when you reported the incident?" Varricchio responded "I don't recollect that" and "I didn't see him" (T-II 54). He testified that he did not use the power plant's telephone to contact Con Ed, but rather called from the Con Ed truck, using a walkie-talkie (T-II 54). After Wiersneck arrived, Varricchio escorted him to the engineer's office in the power plant and then went back to the truck; he recalls that someone was in the office, but does not remember who; however, he doesn't "recollect" that Assanah was present (T-II 55-56).

E. Lynch's deposition testimony

Michael Lynch ("Lynch"), the Center's plant superintendent, is "responsible for the infrastructure of the facility, all maintenance, interior and exterior, utility services, utility management programs, health and safety programs" (D-T L 5, 18).[5] He testified that the Center's power plant is a 24-hour operation (DT-L 19), and power plant personnel take a tour of duty to inspect the power plant's basement every two hours (DT-L 24). From reviewing the power plant's log for August 29, 1996 (claimant's exh. 4),[6] Lynch identified Assanah as the engineer in charge for the day shift and Mr. Giaquinta as his assistant (DT-L 22-23).

From reviewing a work request dated September 30, 1996 (claimant's exh. 5),[7] Lynch confirmed that Heaphy, who was the supervisor of the power plant at the time (DT-L 30), had asked for plant personnel to "weld grating down to switch gear room." When asked if he knew why this work was requested or accomplished, Lynch responded, "It's a tough question. Why was it done? There was an accident reported by Con Ed. and Mr. Heaphy responded, I guess, by welding the deck plates down" (DT-L 31). Lynch explained that
[t]he deck plates are removable because we have to get equipment in and out of certain areas throughout the power plant. No deck plates are ever welded in any power plant that I have ever worked in.

The reason is when we had to bring large equipment back and forth, we would haul up whatever we have to haul up, restore the deck plates. It goes on so constantly that you just don't weld the plates in place.
(DT-L 32) (emphasis added).

Lynch did not know where the spot welds requested by the work order were made: "To my knowledge, they just tacked these grates in place in here somewhere; I don't even know where the tacks are exactly" (DT-L 41). Lynch explained that the function of spot welds is "[j]ust to hold something in place. In this case, just to hold the deck plates in place, keep them from moving" (id.), and that these welds could be readily cut with a torch or chiseled out whenever the plates needed to be removed (DT-L 41-44).

Lynch estimated that the grating plates weighed anywhere from 40 to 60 pounds apiece and could be lifted up without the use of tools (DT-L 35). He didn't "know for sure," but thought that the landing on the stairway between the power plant's first floor and basement was comprised of four plates (cf., T-II 15, 26, 35), which were held in place by "[s]itt[ing] in an angle iron frame" (id.).

When asked, "Is there any angle iron that runs perpendicular to the perimeter?" Lynch answered, "Not normally. Normally, it's just the plates are strong enough to where they don't need any lateral support" (DT-L 40) (emphasis added).

Finally, Lynch was asked and answered the following questions:
Q In your experience, have you ever known a situation where the gratings moved?

A Yes, sir.

Q What were those occasions?

A Carelessness.

Q In what way did carelessness–

A Gratings not being put back properly. If they were removed and just not replaced properly.

Q What would happen?

A Well, they could shift.

Q And if they shifted, would that affect their stability?

A Certainly.

Q You were present when Mr. Milano testified here earlier?

A Yes, sir.

Q When he said that one of the gratings that he stepped on became depressed, is that something that would happen if the grating shifted?

A It's possible.

Q When he testified that the other grating rose, would that be something that would happen when the grating shifted?

A Depending on weight transfer and how he hit the grate, certainly it's possible.
(DT-L 45-47).

II. Discussion

A landlord is not the insurer of the safety of those coming onto the premises. Rather, a landlord's duty is only to maintain the property in a reasonably safe condition in view of all the circumstances, with foreseeability as a measure of liability (Basso v Miller, 40 NY2d 233). The claimant bears "a very fundamental and necessary burden" to show a dangerous or defective condition because of which defendant should have foreseen the reasonable possibility of injury to users (Allen v Carr, 28 AD2d 155, 157, affd 22 NY2d 924); and the dangerous or defective condition must be a proximate cause of claimant's injury (Boltax v Joy Day Camp, 67 NY2d 617).

Moreover, notice of the dangerous or defective condition is a prerequisite to finding the landowner liable; therefore, in order for the State to be held liable, there must be evidence to show that the State either created the allegedly dangerous or defective condition or had actual or constructive notice of it (Batiancela v Staten Is. Mall, 189 AD2d 743; Browne v Big V Supermarkets, 188 AD2d 798). "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;" 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).

Finally, claimant has the burden of proving his case by a fair preponderance of the credible evidence (see, PJI 1:23). The trial court, in its capacity as trier of the facts, must view the witnesses and consider their statement upon direct and cross-examination in determining whether each witness is credible and the weight, if any, to be given to the evidence (see, PJI 1:8, 1:22, 1:41; see also, Johnson v State of New York, 265 AD2d 652; DeLuke v State of New York, 169 AD2d 916).

In this case, claimant theorizes that the landing was negligently designed and maintained because the plates were removable, which created a dangerous and defective condition exacerbated by the presence of a dent or "raised grating." Defendant responds that claimant has not established the existence of a dangerous condition, assuming the Court finds his testimony credible, and has concomitantly presented no evidence of notice of a dangerous or defective condition or of a failure to remedy any such condition.

A. What happened on August 29, 1996

What happened on August 29, 1996 is something of a puzzlement. Claimant testified first, followed by Varricchio (who was not present in the courtroom when claimant testified) and then, the next day, Assanah. Varricchio corroborated claimant's account of an accident on the landing, while Assanah cast doubt on the accuracy of claimant's version of events when he testified that claimant was alone when he arrived at the power plant, alone when he started down the stairway between the first floor and the basement, alone when he reported an accident to Assanah in the engineer's office and used the telephone and was alone when he left the power plant through the front entrance and drove away.[8] Although claimant and Varricchio subsequently tried to explain why Assanah may not have seen Varricchio, they succeeded mainly in contradicting each other and adding detail of no apparent relevance even if true.

First, the record supports Assanah's testimony that claimant reported an accident to him at about 1:50 p.m. on August 29, 1996: Assanah contemporaneously made and signed an entry in the power plant's log to this effect. In rebuttal, Varricchio suggested that he had met Assanah's assistant on the day shift, "Dick Jianquinto," when he arrived at the power plant, and did not recollect having seen and had not seen Assanah at any time during the course of his visit there; however, it is impossible to square this testimony with claimant's direct testimony that he met Assanah on his way into the power plant and after his accident (the latter, reinforced by Assanah's entry in the power plant's log) and his rebuttal testimony that Varricchio never left his side unless both Assanah and Varricchio are mistaken--Assanah about whether claimant was alone; Varricchio about whether he met Assanah--or someone is not telling the truth.

Claimant and Varricchio also testified on rebuttal that "Mr. Wiersneck" from Con Ed arrived at the power plant at about 2:10 or 2:15 p.m. in response to their radioed report of an accident at about 1:50 p.m., and met them at their truck; and that Varricchio walked with "Mr.Wiersneck" to the power plant, and introduced him to someone other than Assanah in the engineer's office. Claimant presented no documentary evidence (e.g., a Con Ed accident report or a report of Mr. Wiersneck's accident investigation) to corroborate his and Varricchio's testimony about Mr. Wiersneck's visit to the power plant on August 29, 1996; and Assanah does not recall having discussed claimant's reported accident with Mr. Wiersneck or anyone else from Con Ed, and seems to have kept a careful account of goings-on during the shift in the power plant's log, which contains no entry denoting a visit from Mr. Wiersneck or anyone else from Con Ed during the first shift on August 29, 1996. Even if someone from Con Ed met claimant and Varricchio at the power plant at 2:10 or 2:15 p.m. or later, this circumstance is no proof that Varricchio was with claimant on the landing just prior to 1:50 p.m.

Next, claimant testified that one of the landing's plates "opened like a trap door" or "sprung" (T-I 22; see also, T-I 28) or "gave way" and "opened up on an angle" (T-I 27), which created a sufficient opening between two of the plates for his entire left leg to fall through while he kept his right foot firmly in place on the first step of the flight of stairs leading from the landing to the first floor and held onto the handrail tightly; and that this opening snapped shut "just like a door closing behind me" (T-I 23) when Varricchio reached back and pulled him up. This sequence of events is difficult to imagine in light of the pictures and testimony depicting and describing the configuration and condition of the landing: the rectangular plates or gratings comprising the landing weigh roughly 50 pounds and sit on the two to two and one-half-inch metal lip of a steel frame on two or three sides, depending on their location; they are not hinged; the plates appear to fit snugly together within the frame, without any noticeable gaps; although not perfectly level, the plates do not visibly sag either; neither claimant nor Varricchio asserted that the plates were not seated properly in the frame or were somehow out of place prior to claimant's accident.

To the extent that claimant's and Varricchio's testimony differs from Assanah's testimony, the Court considers Assanah the more credible witness based on demeanor and the consistency of his trial testimony with his deposition testimony (see, n 8, supra) and other evidence in the record, such as the log. The Court therefore specifically finds that whatever accident may have befallen claimant on the landing at the power plant on August 29, 1996, he was alone at the time.

B. Whether a dangerous or defective condition existed

Claimant argues that the landing was dangerous or defective because the plates or gratings were removable and were not braced; however, he presented no expert evidence to show that the landing's design was improper or unsafe or failed to meet industry standards or was even the least bit unusual. To the contrary, Lynch testified that landings or decks in the stairways of power plants are built with removable plates in order to facilitate the moving of equipment in and out; that "[n]o deck plates are ever welded in any power plant that I have ever worked in" (DT-L 32); and that deck plates are "not normally" braced because "it's just that the plates are strong enough to where they don't need any lateral support" (DT-L 40).

The sole proof adduced by claimant to support his theory of negligent design and maintenance is Lynch's testimony that he had known of occasions when a deck plate shifted because it was carelessly replaced after having been removed; and that if a grating thus shifted, it was "possible" for a plate to become either depressed or to lift up when someone walked upon it, "[d]epending on weight transfer and how [the individual] hit the grate" (DT-L 45-47). Of course, in this case there is no evidence that the grates were removed and replaced prior to claimant's accident. In addition, Lynch's testimony when read in context makes clear that he was testifying in general, and was not referring to any such incident of shifting as having occurred at this particular landing. In fact, claimant was unable to point to any prior accidents at this landing--which he himself had traversed uneventfully about once a month for the two and one-half years preceding August 29, 1996; and Assanah knew of no accident at the landing during the eight years he had worked at the power plant prior to August 29, 1996.

Claimant further contends that the dangerous or defective condition created by the removable gratings was enhanced by the presence of a dent or one-half-inch "raised grating" created where two plates fit together below and perpendicular to the midpoint of the first step of the flight of stairs leading from the landing to the first floor. Indeed, the plate next to the stairwell appears ever so slightly concave (claimant's exh. 1-F) and not quite level where it borders the adjacent plate; however, imperfection alone does not connote danger. Again, claimant provided no proof of any reported accident on the landing prior to August 29, 1996. Moreover, at no point in his testimony did claimant implicate a dent or "raised grating" as contributing to his accident; he did not testify that he tripped on any unevenness on the landing.

Finally, claimant contends that Lynch's and Assanah's testimony about the subsequent spot welding of the plates is admissible to the extent that defendant contends "that remedial measures were not feasible as the defendant implies by its failure to correct or repair the raised dent of the plate" (claimant's brief, pp. 8-9). This reasoning is a bit hard to follow, but, in any event, this is not a products liability case in which a design defect is alleged (cf., Bolm v Triumph Corp., 71 AD2d 429, the case cited by claimant). Defendant argues that the evidence of subsequent spot welding is inadmissible for any purpose, and the Court agrees that it is inadmissible and does not show negligence, which is always determined with reference to defendant's knowledge at the time an accident happens, not in the light of hindsight.

III. Conclusion

Based on the foregoing, the Court now grants defendant's motion to dismiss the claim for failure to establish a prima facie case of negligence, which was made at the close of claimant's proof and on which she had reserved decision: claimant has failed to present evidence from which a fact-finder may find or infer the existence of an unreasonably dangerous condition, notice to the defendant of such a condition or lack of reasonable care. The Chief Clerk is directed to enter judgment accordingly.

June 18, 2001
Albany, New York

Judge of the Court of Claims

[1]"T-I" followed by a number(s) refers to the corresponding page(s) in the first volume of the transcript from the trial on liability.
[2]The transcript of Assanah's deposition was offered and accepted into evidence as claimant's exhibit 7 on the day before he testified as part of defendant's case.
[3]"T-II" followed by a number(s) refers to the corresponding page(s) in the second volume of the transcript from the trial on liability.
[4]Assanah's contemporaneous log entry reads in its entirety "Con Edison meter reader fell on greading [sic] 1:50 when coming up" (claimant's exh. 4; see also, T-II 19, 41). He testified that he placed a red "x" by the entry to draw his supervisor's attention to it (T-II 22-23). His signature appears after this entry.
[5]"DT-L" followed by a number(s) refers to the corresponding page(s) in the transcript of Lynch's deposition testimony (claimant's exh. 6).
[6]The log is partial, covering all of the first shift (7:00 a.m. to 3:00 p.m.) but only the very beginning of the second shift (3:00 p.m. to 11:00 p.m.).
[7]Claimant's counsel appears to have misidentified the date of the work request as 9/3/96 (compare DT-L 29 with claimant's exh. 5). Defense counsel objected to so much of the Lynch and Assanah depositions (claimant's exhs. 6 and 7 respectively) as referred to the work request and the work accomplished to carry it out. Specifically, the State took the position that such testimony was not relevant or admissible for any purpose, or, specifically, to show the condition of the plate(s) on August 29, 1996 or negligence; claimant offered this testimony as evidence of the feasibility of repairs.
[8]Assanah's trial testimony that claimant was alone was consistent with his deposition testimony, although claimant's counsel indicated otherwise at trial (compare claimant's exh. 7 at pp 42-43 with T-II 60). The deposition transcripts for Lynch and Assanah (claimant's exhs. 6 and 7 respectively) indicate that claimant and Varricchio were present at Lynch's deposition, but not at Assanah's.