New York State Court of Claims

New York State Court of Claims

WASSMANN v. THE STATE OF NEW YORK, #2001-007-566, Claim No. 94080


On February 28, 1996, claimant Constance A. Wassmann was injured when she stepped in a hole while walking across State Route 299 (also known as Main Street) at its intersection with Plattekill Avenue in the Village of New Paltz, Ulster County. Claim dismissed

Case Information

Claimant short name:
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Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
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Cross-motion number(s):

John L. Bell
Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
September 12, 2001

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See also (multicaptioned case)

On February 28, 1996, claimant Constance A. Wassmann was injured when she stepped in a hole while walking across State Route 299 (also known as Main Street) at its intersection with Plattekill Avenue in the Village of New Paltz, Ulster County. The hole was ostensibly caused by a missing riser and cap from a recessed pipe used by the Village of New Paltz to gain access to a village water main. Claimants subsequently commenced the current action against the State alleging that it failed to maintain Route 299 in a reasonably safe condition for pedestrians. The trial was bifurcated and thus only the issue of liability will be addressed in this decision.

Claimant Patrick Wassmann testified that he and his family moved to New Paltz in August 1993. He became a member of the New Paltz Volunteer Fire Department and attended weekly meetings at the Fire Station, which was located near the relevant intersection. He related that following the meetings various members of the Fire Department would frequently walk from the Fire Station to a local restaurant and that their path would take them through the intersection of Route 299 and Plattekill Avenue. He recalled observing in 1993 various objects in the intersection, including old trolley tracks, a sewer cover and a hole. He stated that he looked into the hole and noticed a pipe below the surface of the asphalt. He estimated that the pipe was six to eight inches below the level of the road. According to Mr. Wassmann, the hole existed continuously from 1993 to 1996 and during such time the circumference of the hole grew gradually larger.

Mr. Wassmann related that, on February 28, 1996, he and his wife had lunch at the P & G Restaurant, which was located near a corner of the subject intersection. Following lunch, claimants reportedly walked into the intersection intent on crossing the street to their parked car. Mr. Wassmann recalled that the weather was clear and the road was dry. Although crosswalks were provided at the intersection, claimants started across the street diagonally and were not in a crosswalk. Approximately halfway across the street, Mrs. Wassmann's left foot went into a hole and she fell to her knees. Her husband helped her up and across the remaining portion of the street.

The following day, Mr. Wassmann returned to the intersection with a tape measure. He testified that the hole into which his wife had stepped was roughly circular in shape, with a diameter ranging from nine to eleven inches. He measured the depth of the hole, which he reported as six to eight inches. He also took photographs of the subject hole and intersection (
see, Claimants' Exhibits 1-5).
On cross-examination, Mr. Wassmann acknowledged that, although he had purportedly seen the hole on many occasions, he had never reported the presence of the hole prior to the accident to defendant or the Village of New Paltz.

Mrs. Wassmann's testimony was essentially consistent with Mr. Wassmann regarding the manner in which the accident occurred. Although she and Mr. Wassmann were crossing the street diagonally, she denied knowing whether or not they were in a crosswalk. She described the intersection as busy and stated that she was following other pedestrians while crossing the street. Mrs. Wassmann recalled crossing the street in the area on previous occasions "a couple of times."[1]
She believed she had last crossed the intersection a "month or two" before the accident and stated that she had not previously observed the hole.
Defendant called Thomas E. Story, Jr., the Assistant Resident Engineer for the State Department of Transportation in Ulster County. Mr. Story has been an employee of defendant since 1986 and in his current position since May 1995. His duties include, among other things, supervision of maintenance work and reviewing requests by public and private entities for permits. He related that the State's right of way is generally comprised of its highways and adjoining land. In villages, however, the State retains responsibility only from curb to curb. He explained that municipalities frequently have various utilities, such as sewer and water systems, located within the State's right of way. He stated that it was the obligation of the municipality to maintain such utilities.

Mr. Story testified that there are over 700 lane miles of State highway in Ulster County and that, as part of his job duties, he traveled all such highways once every two to three weeks. He stated that he had never observed the subject hole prior to the commencement of the current claim. He further averred that the State had not received a complaint or other notice about the hole before the instant litigation. After the claim was filed and served, Mr. Story inspected the intersection and found the hole that allegedly caused Mrs. Wassmann to fall.

Mr. Story produced the State's record plans from 1950, ostensibly the date of the last reconstruction project at the intersection (Defendant's Exhibit A-1). Review of the plans reflected that the Village of New Paltz had a six-inch water main running under the intersection and that there were four water valve access ports in various locations in or near the intersection. The water valve access ports were comprised of vertical pipes, which ran from a water valve underneath the highway to near the surface of the highway. A riser and a cap were designed to be located on top of each vertical pipe to provide a relatively smooth surface on the road (
see, Defendant's Exhibits E and F).
Mr. Story's visit to the intersection after the subject accident revealed that the riser and the cap were missing from one of the water valve access ports. He acknowledged that the missing riser and cap resulted in a hole in the highway that he estimated at eight to nine inches in diameter. Mr. Story testified that the Village of New Paltz owned the water line and that it was the responsibility of the village to maintain the riser and cap. He stated that none of the appurtenances that comprised the water valve access port were owned or maintained by the State.

On cross-examination, Mr. Story was asked about the procedure the State would follow if it was notified about a hazard on one of its highways created by a municipal utility. He stated that he would contact the municipality and direct it to correct the problem. When asked what the State would do if the municipality did not address the hypothetical hazard, Mr. Story related that the State would step in and correct the problem. He further explained that cost of the repair would then be charged to the municipality.

The State's duty to keep its roads in a reasonably safe condition in light of the prevailing circumstances extends to foreseeable uses of the roads by pedestrians (
Loughran v City of New York, 298 NY 320; O'Connor v State of New York, 126 AD2d 120, affd 70 NY2d 914). Not every use of a road by a pedestrian, however, falls within the scope of the State's duty (see, Hamilton v State of New York, 277 AD2d 982, lv denied 96 NY2d 704). Moreover, the duty for maintaining utilities and appurtenances in State highways located in villages is statutorily placed with the local municipality (Highway Law § 46; see, Mason v State of New York, 180 AD2d 63). In the event an alleged defect in a highway is determined to be within the realm of the State's duty, it remains incumbent upon the claimant to prove the elements of a negligence cause of action including actual or constructive notice and proximate cause (see, Redcross v State of New York, 241 AD2d 787, lv denied 91 NY2d 801; Sanford v State of New York, 94 AD2d 857).
Pursuant to Highway Law § 46, the State has jurisdiction and is charged with providing maintenance "over the pavement area" of a State highway passing through a village. Such statute further provides, however, that any water mains and appurtenances within the highway continue to be the responsibility of the village. The proof at trial established that the hole into which Mrs. Wassmann stepped was created by a missing riser and cap in a water valve access port. The village was statutorily charged with maintaining the riser and cap and the alleged negligence arising from the absence of such items cannot be properly placed on the State.

Claimants argue, however, that the pavement around the missing riser and cap had deteriorated, resulting in a hole larger than necessary for the riser and cap, and therefore that the State cannot avoid responsibility for the condition. Claimants further note that Mr. Story conceded that if the State was aware of a large hole in a highway created by a municipality and which the municipality neglected to fix, the State would, at some point, step in and repair the condition. Assuming,
arguendo, that such theories are not foreclosed by Highway Law § 46, the court concludes that a significant problem nevertheless remains because liability hinges upon claimants establishing that defendant had notice of the condition. The court was not persuaded by the proof at trial that defendant had such notice.
Claimants attempted to establish notice through the testimony of Mr. Wassmann that he had observed the hole as early as August 1993 and that over the next two-and-a-half years he watched it grow larger. Mr. Wassmann reportedly readily observed the hole, but Mrs. Wassmann, when walking through the same intersection on prior occasions, claims to have never seen the hole. The court is not convinced that Mr. Wassmann and his colleagues, firefighters apparently cognizant of the importance of public safety, would repeatedly pass a hole in the highway for two-and-a-half years and that none of them would make any effort to notify appropriate authorities regarding the condition. Indeed, none of the many firefighters who reportedly accompanied Mr. Wassmann in walking through the relevant intersection were produced at trial to testify regarding the purported condition of the highway.

Mr. Story testified that the State highways in Ulster County were viewed by him at least monthly and that he did not see a hole in the intersection prior to the accident. He further stated the State did not receive notice of a hole from any source prior to the accident. Mr. Story's testimony was credible and is accepted by the court. The lack of convincing proof of actual or constructive notice to defendant of the condition compels the conclusion that claimants have failed to establish liability of defendant for the accident.

The claim is dismissed and the Chief Clerk of the Court of Claims is directed to enter judgment accordingly.

September 12, 2001
Plattsburgh, New York

Judge of the Court of Claims

[1] Unless otherwise indicated, all quotes are from the court's trial notes.