New York State Court of Claims

New York State Court of Claims

COVIELLO v. STATE OF NEW YORK, #2002-018-159, Claim No. 98006


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:
Defendant's attorney:
By: TIMOTHY MULVEY, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 28, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages from the State of New York for injuries he received by virtue of the State's alleged negligent maintenance of a roadway/walkway at Mohawk Correctional Facility (hereinafter referred to as "Mohawk"). The trial was bifurcated and this decision is solely on the issue of liability.

Claimant testified that he was an inmate at Mohawk for almost four years. He arrived at the facility on May 30, 1995. On March 19, 1996, at approximately noon, he was leaving the south mess hall to return to his dormitory, 74-D. To do so, he had to walk through the intersection of the facility known as Times Square, called that because it was so busy. The area consisted of two perpendicular roads; one running north-south and the other east-west.

The mess hall was on the northeast side of the intersection and claimant's dorm was past the intersection to the west. An officers' shack was located on the southwest corner.

Inmates were instructed to walk on the roadways only, and they were required to stay on the right side of the road. Claimant left the mess hall with approximately 25 inmates and crossed to the west side of the street, heading south to the intersection where he could continue west along the roadway. The weather had been variable leaving puddles in the roadway. Claimant recalled plowed snow piled on the side of the road including the northwest corner which, in better weather, had dirt and grass abutting the road. Vehicles used these roads and the roads were plowed when needed.

Claimant testified that as he approached the intersection at the northwest corner, he stepped into a puddle which apparently disguised a hole or rut on the edge of the road. His right foot slipped off the edge of the pavement into the hole, and he fell onto his right side. Claimant estimated the hole to be 5-to-6 feet long, 2-to-3 feet wide, and 10-to-12 inches deep. He recalls Correction Officer (hereinafter C.O.) Miller coming from the officers' shack moments later to check on him. Some time later that day he went to the infirmary.

As part of his program in horticulture, claimant recalls assisting the instructor, Steven A. Drake, with filling that particular hole with dirt and gravel. He also recalled some "cold patch" asphalt being used to repair the hole five-to-six months later.

Steven Drake, the horticulture instructor, testified that claimant was his student at Mohawk. Mr. Drake's crew would rake and help with upkeep of the facility grounds including restoring eroded areas on the edge of the road. There would be no written record of these repairs. He did not recall repairing the road edge at Times Square but said it was possible he and his students did so; however, his class would not do any paving or cold patching.

Also called to testify was James Whittaker, currently employed as a Maintenance Supervisor III at Mohawk; however, on March 19, 1996, he was a Grounds Supervisor. Mr. Whittaker testified that the road in Times Square had last been resurfaced in 1991. According to Mr. Whittaker, no patchwork had been done at that intersection before claimant's accident. He testified that the plows would pile snow on the grassy area in the northeast corner of the intersection and the plows and other vehicles would sometimes cut the corner leaving ruts in the dirt. Prior to claimant's accident, Mr. Whittaker had marked hazardous conditions he had noticed around the facility but not at the location of claimant's accident. He explained that any staff member who saw a hazardous condition had the responsibility of blocking or marking it until it could be repaired. He agreed that a 10-inch deep hole would be a hazard.

Mr. Whittaker acknowledged that Mr. Drake and his students would assist the grounds crews on occasion with raking and other types of upkeep. There would be no records to reflect the work done by the horticulture students, but they would not do any road repairs.

On cross-examination, Mr. Whittaker said he had reviewed the work orders for Time Square and there were none for road repair, raking or grading at the location of claimant's accident. He explained that any staff member can notify the maintenance department of a need for repairs and a work order would result. He had done inspections of the Times Square intersection and could not recall any hole on the northwest corner or any broken pavement. Mohawk also has an environmental committee which walks around the facility every month checking for safety and cleanliness problems. They did not report any holes in or near the area where claimant fell.

Although Mr. Whittaker admitted a rut alongside the road caused by a vehicle tire could be a tripping hazard, the tire ruts shown in the photos of the area, in his opinion, were not tripping hazards.[1] Mr. Whittaker acknowledged that a hole, as described by claimant would be a hazard.

C.O. Robert J. Miller, Jr., also testified. C.O. Miller was assigned to the Times Square station from 1991 or 1992, and was on duty at the station on March 19, 1996. During the lunchtime movement that day, C.O. Miller noted an erratic motion in the crowd of inmates and saw claimant standing in a puddle. He did not recall going over to claimant that day which he would have done if the inmate had fallen to the ground. He estimated the puddle to be approximately 1½- to-2-feet wide and 2-feet long. He saw only standing water that day, no hole, although he agreed that a vehicle could have left a tire imprint that filled with water.

Before claimant's accident, C.O. Miller worked in Times Square four-to-five days per week for three-to-four years, unless he was on vacation. He has no recollection of any broken pavement or repair crews working at the location or requesting any work orders for road repairs at the intersection in question.

The State, as a landowner, has a duty to maintain its property in a reasonably safe condition under all of the circumstances. (Basso v Miller, 40 NY2d 233, 241). To establish liability, claimant must show the existence of a dangerous or defective condition which defendant either created or had actual or constructive notice. (See, Byrd v State of New York, 206 AD2d 449; McMullen v State of New York, 199 AD2d 603 lv denied 83 NY2d 753). Where there is proof that defendant created the dangerous condition, this constitutes actual notice. (Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249-250, affd 64 NY2d 670). Without such proof, actual or constructive notice can be shown typically by evidence of prior or similar incidents or proof that the defective condition existed for a sufficient period of time to permit the State the opportunity to discover and correct the problem. (Gordon v American Museum of Natural History, 67 NY2d 836, 837; Gardner v County of Monroe, 247 AD2d 865).

The Court, in viewing the proof, must observe the witnesses and listen to their testimony in order to assess credibility. (PJI 1:8, 1:22, 1:41; Simon v State of New York, 271 AD2d 381). As fact finder, the Court must determine the weight, if any, to be given to the evidence presented. (PJI 1:23).

After listening to the testimony and reviewing all the documentary evidence the Court finds claimant has failed to establish by a fair preponderance that a dangerous condition existed. By all accounts, the location of claimant's fall was a busy thoroughfare, known for that reason as Times Square. Despite the heavy foot traffic, no prior incidents of falling as a result of a hole or rut in this location was established. Evidence of use of any area by others without accident is "relevant and often persuasive on the question of whether a given condition should be classified as dangerous." (Stein v Trans World Airlines, 25 AD2d 732; Benson v City Univ. of New York, Ct Cl, unpublished decision of Read, Presiding Judge, filed January 10, 2000, claim no. 92231, p. 9). Moreover, none of the witnesses, including claimant himself, saw the hole that claimant described prior to March 19, 1996. Claimant walked through this intersection approximately four times daily for almost ten months before his fall and never noticed a hole or rut. None of the other witnesses, some of whom were in Times Square daily, ever saw any hazardous condition either. The Court cannot believe that a hole or rut as claimant estimated, five-to-six feet long, two to three feet wide, and ten-to-twelve inches deep, would go unnoticed in such a well-traveled location. Although Exhibit A-1 does show a rut, it is nowhere near the size claimant described, and the Court is not persuaded that the rut as reflected in Exhibit A-1 would be a dangerous condition.

Claimant has failed to establish that the State created a hole or rut as he described, and even assuming a hole or rut existed on March 19, 1996 at the location claimant was injured, the Court concludes it was not present for a sufficient period of time to put defendant on notice.

At the close of claimant's case, the defendant moved to dismiss the claim for failure to prove a prima facie case, specifically claimant's failure to prove that the State had notice of a dangerous condition. The Court now GRANTS that motion. The claim is DISMISSED. LET JUDGMENT BE ENTERED ACCORDINGLY.

August 28, 2002
Syracuse, New York

Judge of the Court of Claims

[1]Exhibit A-3, admittedly was taken in preparation for trial and not at the time of the incident.