New York State Court of Claims

New York State Court of Claims

ROBERTS v. THE STATE OF NEW YORK, #2001-015-538, Claim No. 100790


Court dismissed claim after trial for failure to make prima facie showing of State's liability for alleged defective condition of floor at Empire State Plaza. Claimant's trial testimony as to cause of her fall differed significantly from accident report she completed on day of accident thus raising issue of her credibility with regard to the cause of the fall itself and prevented Court from finding the State liable for claimant's injuries.

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):

Claimant's attorney:
John T. Dall Vechia, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michele M. Walls, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 3, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)

The trial of this claim was bifurcated and only the liability of the defendant will be addressed in this decision.

The claim seeks to recover for personal injuries sustained by the claimant on March 24, 1999 when she fell upon a terrazzo floor on the concourse level of the Empire State Plaza near the Governor Nelson A. Rockefeller Empire State Plaza Performing Arts Center, also known and referred to hereinafter as "the Egg". The claim alleges that the floor area was improperly maintained resulting in a dangerous and defective condition at or near the location of a metal expansion joint. The claim further alleges that the defendant failed to post signs or otherwise warn claimant and others of the dangerous condition and failed to place barricades, tape or other devices to prevent the use of said area by pedestrians. The claim also alleges improper installation of the floor surface and that the State improperly allowed the existence of a tripping hazard caused by cracks, holes, uneven surfaces and irregularities. Claimant sustained injuries to her left arm and shoulder for which she seeks $1,000,000.00 in damages.

At trial claimant offered into evidence transcripts of the examinations before trial of the following individuals which were received without objection: Richard D. Stevens, Office of General Services (OGS) Maintenance Supervisor I; Donald R. Tubbs, OGS, Public Building Manager II (retired); Leon Eliot Dener, Member of the Board of Directors of the Egg; Alan Edward Weeks, former member of Board of Directors of the Egg; Andrew N. Papale, OGS, Maintenance Supervisor II. Claimant was the sole witness called to testify at trial and provided the following relevant testimony[1]
On the date of her accident claimant was employed as Executive Director of the Empire State Plaza Performing Arts Center Corporation. She left her office which was located on the concourse level of the Empire State Plaza and was proceeding along with Alan Weeks and Leon Dener toward elevator #2. She testified that as she traversed the concourse she tripped on "something," lost her balance and fell forward. She testified that the trip seemed to happen in the area around an expansion joint and described the incident as feeling like something grabbed her foot. The area was slippery and she was unable to regain her balance and fell forward. Claimant testified that she was wearing short stacked heel shoes one of which was offered and received in evidence as Exhibit 27. Claimant further testified that she landed first on her hands and right knee but knew rather immediately that her left shoulder was dislocated. She alleged that immediately after the fall she sat up with the help of one of her companions, then stood up and at that time felt her shoulder pop back into its socket. Claimant testified that she proceeded to a scheduled Board of Directors meeting during which she took three aspirin for pain. After the meeting she used elevator #2 to return to the concourse, viewed the area where she fell and noticed a hole near an expansion joint. She then proceeded to her office. Claimant referred to a photograph marked and received in evidence as Exhibit 8 and described the hole as the discolored area shown in Exhibits 6, 7 and 8. She further indicated that the hole which allegedly caused her fall was on the side of the expansion joint encountered after one crossed over the joint while en route to elevator #2.

Claimant testified that she later sought medical attention and was out of work for several weeks following the accident. On April 1, 1999, upon her first return visit to the Egg following her accident, claimant took certain photographs copies of which were received in evidence as Exhibits 1, 2, 3, 4, 5, 10, 11, 12 and 13. She testified that the photographs show the hole in the same condition as she observed it on the date of the accident. Claimant offered testimony regarding the physical characteristics of the hole itself which she described as triangular in shape, approximately an inch-and-a-half in width and one-half inch in depth. This triangular hole was located within a larger triangular shaped discolored area of the floor adjacent to the expansion joint. The condition depicted was referred to as spalling. Claimant speculated that the front portion of the heel of her shoe came into contact with a metal strip which ran generally perpendicular to the expansion joint and through the terrazzo floor causing her to fall.

Claimant acknowledged that she had walked through the area many times prior to the accident and, although she had previously noticed the discolored area (spalling), she had never noticed the hole. She asserted that her office had been located in the area of the concourse where her fall occurred since 1993 and that the discolored area of the floor had existed for as long as she could remember.

On cross-examination the claimant indicated that she worked at the Egg five days per week and that she crossed the accident site six or seven times per day. She admitted that she did not see her shoe catch on anything prior to her fall and that she did not examine the area immediately afterward. She asserted that following the Board of Directors meeting she went to her office and filled out an accident report identified as a C-2 form[2]
. Claimant acknowledged that defendant's Exhibit A, which was marked for identification and received in evidence without objection, is a copy of the accident report form and that the handwriting depicted thereon is hers. She further acknowledged that she completed and signed the original of this form on the day of the accident and that in answer to item #18 which reads "[h]ow did the accident or exposure occur?" she wrote "[m]oisture on the floor caused me to slip and fall injuring left shoulder and right leg." Claimant admitted that the form does not indicate that the heel of her shoe caught in a hole.
On redirect examination claimant testified that she was in "enormous pain" when she completed Exhibit A and that she did not examine the hole in the floor until her visit to the Egg on April 1, 1999. On recross examination claimant, in an attempt to explain the inconsistency between her trial testimony and the statement contained in Exhibit A, testified that her reference to moisture on the floor referred to her inability to regain her balance after tripping.

Upon the conclusion of the recross examination claimant rested and the defendant's attorney moved to dismiss the claim for failure to establish a prima facie case. The defendant argued that the defect complained of was trivial and that claimant offered no proof of actual or constructive notice of the allegedly dangerous condition or defect. The defendant also referenced the inconsistency between claimant's trial testimony and the description of the accident provided in Exhibit A. After making the motion to dismiss the defendant rested without calling any witnesses. The defendant's motion to dismiss the claim will now be considered.

Like any landowner, the State has a duty to maintain its property in a reasonably safe condition (
Mesick v State of New York, 118 AD2d 214, appeal denied 68 NY2d 611). Ordinarily, the State must have notice of the alleged defective condition before liability will attach (De Luke v State of New York, 169 AD2d 916) unless the defendant or one of its contractors affirmatively created the dangerous condition (Malossi v State of New York, 255 AD2d 807). It is claimant's burden to establish his or her prima facie case, including proximate causation. As stated by the Appellate Division, First Department in Lynn v Lynn, 216 AD2d 194, 195:
". . .'Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury' (Ingersoll v Liberty Bank, 278 NY 1, 7; see, Feblot v New York Times Co., 32 NY2d, at 495, supra, citing Digelormo v Weil, 260 NY 192, 199-200, supra; see also, Schneider v Kings Highway Hosp. Center, 67 NY2d 743, 745). If 'there are several possible causes of injury, for one or more of which the defendant is not responsible, plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which the defendant was responsible' (Digelormo v Weil, 260 NY, at 200, supra)." (Bernstein v City of New York, 69 NY2d 1020, 1021-1022).
One of the primary functions of the trier of fact is to assess and determine the credibility of witnesses. In this case the claimant's testimony as to the condition which purportedly caused her fall is contradicted by Exhibit A, an accident report which she completed on the day of the accident. While at trial claimant asserted that her fall was caused by a hole in the terrazzo floor near an expansion joint, the accident report indicated that moisture on the floor precipitated her fall. This contradiction as to the cause of her fall was further highlighted by claimant's testimony on cross-examination in which she asserted that she noticed the hole upon her return from the board meeting on the date of the accident within approximately one hour after it occurred. Yet her only explanation for identifying moisture rather than a surface defect in the floor as the causative factor of her fall on the accident report was that she was in tremendous pain at the time she completed the form. While the Court does not question the witness' veracity regarding the pain resulting from her alleged shoulder separation it is highly unlikely that such would have caused her to mischaracterize what she believed to be the cause of her fall when completing the accident report form. This is especially true in light of claimant's testimony that she viewed the hole in the flooring prior to completing the report.

The Court is not satisfied with claimant's explanation concerning this significant discrepancy and finds that as a result her testimony as to the cause of her accident is not credible. Since claimant was the sole witness called at trial and since neither of the witnesses to her fall (Alan Weeks or Leon Dener) unequivocally identified the cause of the fall at their respective examinations before trial (
see, Exhibits 23 and 24) it must be found that claimant has failed to prove the cause of her accident by a preponderance of the evidence. The defendant's motion to dismiss the claim must, therefore, be granted.
Even if for the sake of argument the Court were to accept at face value claimant's allegation at trial that the hole in the terrazzo flooring caused her fall the claim would still be dismissed due to claimant's failure to prove that the defect was more than trivial. Claimant's proof consisted of her testimony and photographic evidence which shows that the hole complained of was approximately one-half inch deep. While the Court of Appeals in
Trincere v County of Suffolk, 90 NY2d 976, 977 said that "there is no 'minimal dimension test' or per se rule that a defect must be of a certain minimum height or depth in order to be actionable" it went on to hold that under certain circumstances a court should decide that an alleged defect was of such a trivial nature that as a matter of law it could not give rise to liability. Such a determination "depends upon the peculiar facts and circumstances of the case, including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury" (Denmark v Wal-Mart Stores, 266 AD2d 776). If after considering those factors a court arrives at a determination that the defect is trivial as a matter of law the claim premised thereon should be dismissed (Aguilar v New York City Tr. Auth., 271 AD2d 238; Iadarola v Meadows Plaza Dev. Corp., 271 AD2d 650). The appellate courts have further held that once it is determined that the difference in elevation is trivial, the alleged defect will not be actionable unless the injured party can establish that it has the characteristics of a trap, snare, or nuisance (Leverton v Peters Groceries, 267 AD2d 1014; Tesak v Marine Midland Bank, 254 AD2d 717). A height differential of less than one inch will not be deemed a trap or a nuisance if the condition is open and apparent (Burstein v City of New York, 259 AD2d 579). The appellate courts are not reluctant to determine as a matter of law that a height differential is so trivial as to be non-actionable (Maloid v New York State Elec. & Gas Corp., 257 AD2d 712, claimant's version of the accident coupled with clear color photographs led court to conclude as a matter of law that a one-half inch to three-quarter inch height differential was so trivial as to not be actionable since the condition was open and obvious; Riser v New York City Hous. Auth., 260 AD2d 564, a one inch difference in height between slabs upon which a pedestrian might stub his toe, trip or stumble can be established by photographic evidence to be trivial as a matter of law as long as it does not have the characteristic of a trap or snare; Santiago v United Artists Communications, Inc., 263 AD2d 407, photograph showing defect coupled with expert testimony of a one-half inch depression established as a matter of law that the alleged defect was trivial; Lopez v New York City Hous. Auth., 245 AD2d 273, 274, a three-quarter inch height difference between two segments of pavement is not actionable as a matter of law after "considering the exiguous dimensions of the defect").
Here, the depth of the hole was measured by the claimant herself at one-half inch and it appears from the photographic evidence that the immediate area surrounding the hole exhibited spalling of the terrazzo in such a way that the defect was open and obvious rather than a trap or nuisance. Based upon the trial testimony and the photographic exhibits, if the Court were to reach the issue it would determine as a matter of law that the hole in the terrazzo flooring was so trivial as to not be actionable.

Finally, claimant did not prove by a preponderance of the evidence that the State had actual or constructive notice of this specific defect and that the State unreasonably failed to correct it prior to claimant's accident (
see, Sierra v State of New York, 202 AD2d 491).
For all of the above stated reasons the Court finds that the defendant's motion to dismiss the claim must be granted. The Clerk shall enter judgment in accord with this decision.

August 3, 2001
Saratoga Springs, New York

Judge of the Court of Claims

[1]Neither party supplied the Court with a copy of the trial transcript therefore this synopsis of claimant's testimony is drawn from the Court's trial notes.
[2]An approved form to be used when seeking Workers' Compensation benefits.