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
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Susan Phillips Read
Joseph A. Romano, Esq.
By: Sacks and Sacks, Esqs.Scott N. Singer, Esq., and Sanford Konstadt, Esq., Of Counsel
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Grace A. Brannigan, Esq., Assistant Attorney General, Of Counsel
June 18, 2001
(corrected version of decision)
See also (multicaptioned
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).
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
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
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
[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
(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
[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.
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
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
Assanah, now the power plant's supervisor, testified that he has been employed
there for 12 years (T-II 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
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
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
, T-II 23).
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,
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
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]?
Q And did he also have to identify himself in order to gain admission?
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
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).
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.
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.
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
[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"
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
Finally, Lynch was asked and answered the following questions:
Q In your experience, have you ever known a situation where the gratings
A Yes, sir.
Q What were those occasions?
Q In what way did carelessness–
A Gratings not being put back properly. If they were removed and just not
Q What would happen?
A Well, they could shift.
Q And if they shifted, would that affect their stability?
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
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.
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
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,
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
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
HON. SUSAN PHILLIPS READ
Judge of the Court of Claims
"T-I" followed by a number(s) refers to the
corresponding page(s) in the first volume of the transcript from the trial on
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.
"T-II" followed by a number(s) refers to the
corresponding page(s) in the second volume of the transcript from the trial on
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.
"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).
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.).
Claimant's counsel appears to have
misidentified the date of the work request as 9/3/96 (compare
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.
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
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.