New York State Court of Claims

New York State Court of Claims

GURNIAK v. THE STATE OF NEW YORK, #2002-009-102, Claim No. 98624


This claim seeking to recover damages resulting from a trip and fall by claimant on the SUNY Oswego campus was dismissed upon failure of the claimant to establish either constructive or actual notice of the defective condition of the sidewalk.

Case Information

ELIZABETH GURNIAK The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant's attorney:
BY: Benjamin C. Rabin, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 14, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

In this claim, claimant seeks to recover for personal injuries allegedly sustained by her when she tripped and fell on the campus of the State University of New York at Oswego (SUNY Oswego). The trial of this claim was bifurcated and this decision addresses the issue of liability only.

Claimant alleges that the State is liable for the injuries sustained by her resulting from a fall that occurred on April 6, 1998, on a sidewalk located on the SUNY Oswego campus. On that date, claimant was visiting the school for an open house with her son who was considering the possibility of enrolling in that institution for his college education. Claimant fell on a sidewalk in front of a dormitory known as Seneca Hall, which is located directly across a roadway from Lake Ontario.

Claimant testified that at the time of her fall, she was walking with her son and three other acquaintances as they approached Seneca Hall. The weather conditions were clear, and although somewhat overcast, there was no rain or snow at the time of the accident. Claimant testified that it was a "nice spring day".[1]

Claimant testified that she was walking towards Seneca Hall when "the next thing I knew I was on the ground and in considerable pain". She had no other recollection as to what she was doing prior to the time of the fall, but did remember that she had stepped on a crack which caused her to fall. No one else in her group fell or tripped on this crack. Claimant further testified that she did not see the crack prior to her fall.

Following the accident, a report (Exhibit 12) was prepared by a security officer for SUNY Oswego, which described this crack as "significant". Testimony from all witnesses, as well as photographs of the accident site (Exhibits 1 through 11, inclusive) confirm that this crack created an elevation differential between concrete slabs of approximately one inch.

George Stooks, Director of Facilities Operations at SUNY Oswego at the time of the accident, testified that he considered the condition of the sidewalk to be a "minimal" defect. He testified that conditions at the campus which require repairs are classified on a priority system, and those with a high priority are addressed before those with a low or "routine" priority, such as the one in question in this claim.

Mr. Stooks also testified that he personally reviewed the repair and maintenance records at SUNY Oswego and found no indication that SUNY Oswego had received any notice of this sidewalk crack prior to the date of claimant's fall. Mr. Stooks further testified that he personally was not aware of this crack in the sidewalk prior to the accident.

Irving Paris, an architect who practices in the Albany area, qualified as an expert and testified on behalf of claimant. Although he had never viewed the accident site, he examined the photographs of the sidewalk crack (Exhibits 1 through 11, inclusive) and concluded that the crack had existed for two to three years. He essentially based his conclusion on the fact that there were no concrete chips or materials in the space, and the absence of such materials indicated that the crack was not of recent vintage. He testified that he would have assessed the condition of this sidewalk as a high priority with regard to the timing of repairs.

Douglas Barlow, a local architect, testified as an expert for the defendant. He stated that it was not possible to precisely determine the age of the crack in the sidewalk, but that the "heaving" of the sidewalk, attributable to the freeze-thaw cycle common in central New York winters, could have occurred in the previous winter.

He did not attach the same significance to the absence of concrete chips or materials in the crack as was made by Mr. Paris, claimant's expert. He mentioned several possible explanations for the absence of such debris other than the passage of time, such as wind, snow removal operations, rain and/or water flow.

Like any landowner, the State has a duty to the public to maintain its property in a reasonably safe condition (Preston v State of New York, 59 NY2d 997; Gramm v State of New York, 28 AD2d 787, affd 21 NY2d 1025; Basso v Miller, 40 NY2d 233). The State, however, is not the insurer of the safety of all those coming onto its premises, and negligence is not to be inferred solely from the occurrence of an accident (Mochen v State of New York, 57 AD2d 719).
In order to establish a
prima facie claim of negligence, a claimant must prove, by a preponderance of the evidence, the existence of a foreseeably dangerous condition, that the State had notice (actual or constructive) of the condition and failed to remedy it, and that the dangerous condition was a proximate cause of the injury (Gordon v American Museum of Natural History, 67 NY2d 836).
The Court will first address the threshold issue of notice.

Although claimant has inferred that the State had actual notice of this condition, there was no testimony or documentary evidence introduced to establish that such notice did exist. In fact, as previously mentioned herein, defendant's witness, Mr. Stooks, stated categorically that in his capacity as the Director of Facilities Operations at SUNY Oswego he made a personal review of the repair and maintenance records of the campus and did not find any record that the facility had notice of the sidewalk crack prior to claimant's fall. He also testified that he had no personal knowledge of the sidewalk crack prior to this incident. Accordingly, the Court must find that actual notice has not been established.

In order to establish constructive notice, the defect in question must be visible and apparent, and must have existed for a sufficient length of time so that the defendant would have had an opportunity both to discover and remedy the condition (
Gordon v American Museum of Natural History, supra).
Claimant attempted to establish such constructive notice through the testimony of her expert, Irving Paris. As noted previously, Mr. Paris did not make a personal visit to examine the area in question and based his opinion on photographs admitted into evidence (Exhibits 1 through 11, inclusive). Based on his examination of the photographs, and the absence of concrete chips within the crack, Mr. Paris concluded that the sidewalk crack had existed for several years prior to claimant's fall. In addition to his analysis of the photographs, Mr. Paris also testified about the weather conditions which existed in the Oswego area. Mr. Paris, however, testified that he had never done any architectural work in the Syracuse area, and in the Court's opinion, evidenced minimal knowledge of weather conditions in the Oswego area. In particular, the rather harsh weather conditions common to the Oswego region, and the location of the SUNY campus immediately adjacent to Lake Ontario, did not appear to be acknowledged by this witness.

The Court finds that the testimony of Mr. Paris, when considered against the testimony of defendant's expert witness, Mr. Barlow, has failed to establish, by a preponderance of the evidence, that the State should be charged with constructive notice of the condition of the sidewalk.

After careful consideration of all the testimony and documentary evidence that was presented, the Court must and does conclude that the threshold issue of constructive or actual notice, a prerequisite to any possible finding of liability, has not been met by claimant. Accordingly, this claim must of necessity fail.

Since claimant has failed to establish the existence of either constructive or actual notice, all other issues, such as proximate cause and whether the crack in the sidewalk was dangerous or defective, have been rendered moot.

Accordingly, the claimant's claim against the defendant State of New York is hereby DISMISSED.

Any motions not heretofore ruled upon are hereby denied.


June 14, 2002
Syracuse, New York

Judge of the Court of Claims

[1]Unless otherwise indicated, all references and quotations are taken either from the Court's audiotapes of the trial, or the Court's trial notes.