New York State Court of Claims

New York State Court of Claims

MUSSO v. STATE OF NEW YORK, #2002-005-528, Claim No. 101515, Motion No. M-64795


Defendant's motion for summary judgment dismissing the claim is granted.

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:
Ziller, Marsh & Lang, LLP
By: Craig Z. Small, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney General
By: Reynolds E. Hahn, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 20, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On March 13, 2002, the following papers, numbered 1 to 4, were read on motion by Defendant for summary judgment dismissing the claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing Papers
3, 4 Filed Papers: Claim, Answer

Upon the foregoing papers, this motion is granted.

The claim herein was served and filed on December 6, 1999, with issue being joined with the service of the Answer on January 4, 2000. Discovery was completed. At Claimant's request, because of her age (she was 80 years old in May 2001; see CPLR 3403[a][4]), an expedited trial date was scheduled for February 5, 2002. The bifurcated trial was then rescheduled at Claimant's request, and eventually set as a day certain for April 9, 2002. Regardless, no Note of Issue was ever filed in this matter, and thus the Defendant's motion for summary judgment is not untimely. Claimant has presented no opposition to the motion, obviously not raising any factual disputes.

The cause of action herein may be characterized as a "slip and fall" at an area at Letchworth State Park, specifically alleging that on September 8, 1999, "the respondents did fail to maintain and keep in proper condition a certain portion of premises under their direct control at the aforesaid location. The claimant herein was a pedestrian at or near a walkway adjacent to the ‘Glen Iris Inn' when she was caused to trip and fall on a raised surface which did then exist at that time and place."

In response to Defendant's demand for the exact location of the alleged occurrence, in her Bill of Particulars, Claimant stated that the accident took place "on the stone patio by the overlook in front of the Glen Iris Inn, Letchworth State Park, Genesee Falls, New York" (Exhibit D).

In response to Claimant's omnibus demands, the Defendant supplied photographs (photocopies thereof are appended as Exhibit E, with a descriptive index appended as Exhibit F, as utilized in the deposition of District Safety and Training Officer Dale Worden, Exhibit H). The photographs, index and deposition noted above, reflect a flagstone patio area with some difference of stone height ranging between approximately three-quarters of an inch and one and one-quarter inch. The accident scene is described, without refutation, as a rustic flagstone walkway and patio area situated between the Glen Iris Inn and the Middle Falls of the Genesee River located within Letchworth State Park. At the time of the accident, Claimant is described as a 78 year-old woman who had been wearing a left leg prosthesis since the age of 15, and who had been using a cane since 1998 when away from her home.

Claimant acknowledged in her deposition testimony that it was a good day, and testified that the sun was shining,[1] that she had an unobstructed view of the walkway and patio at all times, and that she was aware that the stones were "rough" but that they were "all the same" (Exhibit G).

Defendant seeks summary judgment on numerous grounds. Claimant could only identify the general area of her fall, describing the area as "mostly to the left of the tree" (Exhibit G, p 23, line 22 to p 24, line 4), and not "too far from the wall" (p 26, lines 12 to 19, referring to Exhibit K herein). Yet, at her deposition when she reviewed photographic Exhibit L herein, Claimant circled an area (Exhibit G, p 30, line 25 to p 31, line 11), characterized without dispute by Defendant as not near the wall. Defendant argues, again without any dispute or opposition whatsoever, that Claimant cannot identify the location of the accident with any specificity, and thus cannot identify the supposed defect which purportedly caused the fall. Moreover, the record is devoid of any prior accidents, and indeed there is testimony to the contrary from Worden and Officer Walker, somewhat telling given their testimony that the patio had existed in its current configuration since the 1950's. Thus, Claimant, since she filed no opposition to the instant motion, does not come forward with any facts to support the contention that the Defendant was on actual or constructive knowledge of a dangerous condition.

Moreover, Defendant alleges, again without any dispute or opposition, that the mechanics of Claimant's fall remain unidentified. Claimant acknowledged wearing a flat bottomed shoe, and that her "feet must have gotten caught in the stone" (p 34, lines 4 to 6). However, Claimant was unable to state whether she lost her footing with her right leg or her prosthetic left leg, or whether her foot "stubbed against a stone or if it rocked because of unevenness" (p34, line 14 through p 35, line 2). This testamentary deficiency is more significant as this apparently was an unwitnessed accident.

Defendant argues that neither the claim nor the Bill of Particulars adequately locates the place of Claimant's fall, another issue exacerbated by the fact that the fall was unwitnessed. The location on one photograph (Exhibit N), was marked by Officer Walker after photographs were purportedly taken on September 14, 1999, some six days after the fall, and who marked an area which the Claimant allegedly told a Glen Iris Inn assistant innkeeper named Beverly was the area in which she fell.

Defendant notes that this is a rustic, open and obvious setting; there was clear and unobstructed visibility of the flagstone walkway and patio, and that the unevenness of the flag stones was uniform and essentially trivial in that setting. The elevations or differences between the flagstones were minimal, obvious and notorious. Nothing was hidden from view, and there was no trap.

In sum, Defendant seeks summary judgment on the grounds that (1) there was no actionable, measurable, or identifiable defect, and the elevation differentials between the stones were so trivial that liability cannot attach, and (2) that the description of the place where the claim arose is jurisdictionally vague preventing the State from conducting a meaningful investigation (Court of Claims Act §11[b]).

The instant claim can be distinguished from the recent decision in Mc Kenzie v Crossroads Arena, 2002 NY App Div LEXIS 957 (February 1, 2002) , where the Fourth Department found that the trial court erred in granting defendant's motion for summary judgment dismissing the complaint on the ground that the alleged defect in the sidewalk was too trivial to be actionable. The Appellate Division found that liability does not turn upon the dimensions of the alleged defect, but rather "whether a particular height difference between sidewalk slabs constitutes a dangerous or defective condition depends upon the peculiar facts and circumstances of each case, including the width, depth, elevation, irregularity, and appearance of the defect as well as the time, place, and circumstances of the injury (citations omitted)" and declined to conclude that the defect was trivial as a matter of law. Unlike the Mc Kenzie court, here there is no deposition testimony that the difference in height was abrupt or posed a tripping hazard and this was not a dimly lit area on a misty night, rendering the alleged defect difficult to detect, rather this was a clear, dry day, with uncompromised visibility. This distinction is heightened by the lack of actual or constructive notice of any defect.

Indeed, the instant claim bears a closer resemblance to another recent decision by the Fourth Department in Squires v County of Orleans, 284 AD2d 990 (filed June 8, 2001), where the Appellate Division found that the trial court erred in denying defendant's motion seeking summary judgment dismissing the complaint. There the court held that "A property owner may not be held liable for damages caused by trivial defects on a walkway that do not constitute a trap or nuisance that could cause a pedestrian to stumble, stub his or her toes, or trip (see, Marinaccio v LeChambord Rest., 246 AD2d 514, 515, [other citations omitted]). . . ." noting that "‘[s]crutiny of the photographs identified by the plaintiff as accurately reflecting the condition of the [curb] at the time of [her] fall supports [defendant's contention] that, as a matter of law, the alleged defect, which did not have any of the characteristics of a trap or snare, was too trivial to be actionable' (Riser v New York City Hous. Auth., 260 AD2d 564, [other citations omitted])."

The uncontroverted factual assertions, buttressed by a review of the photographs in question, support a finding that the defects here, better described as de minimus height differentials between stones, are so trivial as to be non-actionable and cannot support a negligence claim. Similarly, there is no evidence of a dangerous condition (see, Van Beek v The State of New York,[2] December 31, 2001, Claim No. 101822, Read, P.J., where, inter alia, the court, albeit after trial, also examined photographs of the accident site, and concluded that "any hazard was open and obvious and claimant's own culpable conduct was the sole cause of any injuries that she sustained when she fell").

The Defendant also relies on the purported vagueness of the location in the claim and bill of particulars. While the measure of degree of precision of the description of location is subjective and not subject to neat mathematical formulae (see, Grande v State of New York, 160 Misc 2d 383, and its progeny), and without reaching a determination whether Claimant has to "name that stone", it is adequate for the purposes of this motion to find that the description is too vague and imprecise to meet the requirements of Court of Claims Act §11(b), buttressed by Claimant's inability to describe how she happened to fall or which foot "slipped."

Accordingly, given the undisputed facts and the unopposed arguments set forth by Defendant, the "defects' too trivial to be actionable, and the vagueness of the description of the location and manner of the cause of the fall, the motion is granted and the claim is dismissed.

March 20, 2002
Rochester, New York

Judge of the Court of Claims

[1] While there was another suggestion that it was cloudy, it is undisputed there was unfettered visibility.
[2] See UID #2001-001-532 at the Court of Claims website,