New York State Court of Claims

New York State Court of Claims

CABRERA v. THE STATE OF NEW YORK, #2001-016-012, Claim No. 101784


Case Information

JEORDY CABRERA The caption is as amended per the agreement made on the record at trial.
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):

Alan C. Marin
Claimant's attorney:
Fotopoulos, Rosenblatt & Green, Esqs.By: Dimitrios C. Fotopoulos, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Michele M. Walls, AAG
Third-party defendant's attorney:

Signature date:
February 23, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the liability trial of the claim of Jeordy Cabrera, which arose from his injury at Riverbank State Park in upper Manhattan overlooking the Hudson River.

On January 31, 1997, claimant, who was then sixteen years old and lived a few blocks from Riverbank, went to the park at about noon with his friend Jackson Marizan and the two played basketball and football all afternoon. Claimant recalls what happened next:
Around five-thirty...I was on my way out of the park, with my friend. He was in front of me; we [were] walking. And then I was walking out, and my toe got caught in the crack in the track and I fell, and [injured] my ankle.
The running track encircles the football field. According to the park's maintenance supervisor, Prince Stanley, the track is a thin, rubberized surface laid on top of twelve to eighteen inches of concrete. A number of expansion joints were part of the original construction and as thick as the underlying concrete; however, Stanley testified that the surface of the track was subject to buckling. In January of 1995, a perpendicular cut was made across the surface of the track, which became the spot where claimant alleges he fell. See the photograph that is claimant's exhibit one. This cut was right over one of the track's three expansion joints; there would be a total of six cuts. Stanley explained that cuts were made to combat the buckling, which he viewed as dangerous and about which verbal complaints had been received. This remedy was not based on any formal study.
When this cut was made, a "backing rod," a foam rubber strip about one- half inch in diameter, was placed in it by Stanley. The
cut is affected by the seasonal variations in temperature, becoming wider in the cold weather. At its widest, Stanley described the cut as a one- inch incision in the surface of the track. Cabrera, for his part, testified the cut was wider than one inch, but less than two inches. Marizan stated it was between one and one-half and two inches. Claimant's mother took a photograph one week after the accident in early February (cl exh 1), but supplied no measurements. What the photo does show is that the cut is narrower than the white lines separating the running lanes.
That an injury occurred on its premises does not necessarily make the defendant liable; the State is not an insurer.
Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977). The issue in a trip and fall injury due, for example, to a pavement defect or the presence of debris, typically turns on whether actual or constructive notice obtains, and if the latter, just what kind of notice is sufficient. Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996). But at the threshold, the condition must be an unsafe or dangerous one. Madrid v City of New York, 42 NY2d 1039, 399 NYS2d 205 (1977); PJI 2:90.
The cut intended to eliminate the buckling did not constitute a dangerous condition. This is so with or without a backing rod, although with that said, no credible evidence was adduced as to its absence. Claimant never mentioned it, and Marizan's responses on direct examination were too pat and programmed to be credible. Furthermore, Stanley observed that three or four million people annually use Riverbank State Park, and he had never heard of another injury occurring in the way Cabrera alleges his did.

Nor did we receive any evidence that the use, arrangement or size of the cut(s) across the track surface was a departure from good and proper design or engineering maintenance standards. Claimant did not call an expert to the witness stand. See,
e.g., Warech v Trustees of Columbia University, 203 AD2d 53, 610 NYS2d 480 (1st Dept 1994) on the necessity of expert testimony in order to prove that a sports facility is unsafe.
Even were such track surface to be determined an unsafe condition, claimant has at least one and possibly two additional problems in proving his case.
The cut was open and obvious and could be readily observed by the reasonable use of claimant's senses. Sammis v Nassau/Suffolk Football League, 264 AD2d 413, 693 NYS2d 237 (2d Dept 1999); Green v City of New York, 263 AD2d 385, 693 NYS2d 43 (1st Dept 1999). In that regard, Cabrera testified that he had "seen it many times... a lot more than ten probably."
At trial, claimant raised the issue of poor lighting, but no credible evidence was submitted on this issue.
Tower lights directly encircling the track were only used for sanctioned events so as to minimize the effect on the neighborhood, inasmuch as Riverbank State Park was open until 11 p.m. Nonetheless, Stanley pointed out that a light was within ten feet of the place in question, and there was a nearby "pedestrian walkway...[with] lights all along the walkway." His own office was close to the track and faced it so that he could have seen if any bulb was burned out. The lights were on timers. In view of the foregoing, it is unnecessary to consider claimant's submission of a document to show that the sun set at 5:12 p.m. on January 31, 1997. It might be noted that this document was first presented in his post-trial brief, assumed no period of twilight, and accepted the time of the fall as given by claimant and his witness.
Secondly, doubt exists that the accident happened the way Mr. Cabrera contended it did. After all,
claimant spent five or six hours playing basketball and football that day. He was vague on the specifics of how he tripped on a crevice narrower than the lines dividing the running lanes of a track while wearing sneakers with a flat rubber sole. In fact, Cabrera did not personally file an accident report that day. When one was finally submitted, a month had passed and it was filled out by his friend Marizan. Even then, the report was sketchy and made no mention of the cut across the running track: "When we finished playing we were about to go home. We [were] walking on the track and he fell. I grabbed him and I pulled him up and took him home" (def exh A).

In view of the foregoing, Jeordy Cabrera has failed to prove his case by a fair preponderance of the credible evidence, and his claim is
dismissed. All motions not previously ruled upon are deemed denied.


February 23, 2001
New York, New York

Judge of the Court of Claims