New York State Court of Claims

New York State Court of Claims

SCELZA v. THE STATE OF NEW YORK, #2003-016-039, Claim No. 102242


Case Information

ANTHONY SCELZA AND JOAN SCELZA The caption has been amended sua sponte to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Tartamella, Tartamella & FresoloneBy: Leonard Tartamella, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John Shields, AAG
Third-party defendant's attorney:

Signature date:
June 11, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the liability trial of the claim arising from the fall of Anthony Scelza on snow and ice at Sunken Meadow State Park in Suffolk County. Mr. Scelza's wife, Joan, is also a claimant, but inasmuch as Mrs. Scelza's cause of action is derivative of her husband's, references herein to "Scelza" and to "claimant" will mean Anthony Scelza.

Mr. Scelza's accident occurred
on March 16, 1999, which was a Tuesday. It had snowed from about 10 or 11 p.m. Sunday night, March 14, until some time between 1 and 2 o'clock on Monday afternoon. The total snowfall was 4.5 inches, with half an inch recorded on Sunday and four inches on Monday. (Cl exh 2).
Claimant testified that he went to Sunken Meadow every day, seven days a week, for twenty years, and did so year round, "weather permitting."
He described the morning of March 16 as cold, but beautiful and sunny. Scelza drove to the park, entering Parking Field Number 1 through a toll booth that had a green light on. Claimant said that when the park was completely closed, there was no access through the toll booths: the light would be red and vehicles would be positioned so as to block the entrance.
Scelza described Field 1 as
"the main pavilion parking field which leads up to the pavilion...probably three steps in the front into the archway, across the - - I guess they call it the atrium to the next set of steps that would lead up to the boardwalk." Claimant said that the boardwalk was used on a twelve-month basis by walkers and joggers, describing the winter level of such activity as moderate.
Scelza recalled passing through the toll booth at 8:35 or 8:40 a.m. He parked in the first row of parking places before "crossing over the road to go into the pavilion" (cl exhs 3I & 3J). Claimant walked across a brick-paved area, which he said had a lane plowed; the steps leading to the pavilion "looked like they had been shoveled, but they still had substantial snow on them" (cl exh 3M).
The pavilion is covered (see cl exhs 3I, 3J, 3K and 3M). Claimant emerged from under the pavilion onto a cement walkway or patio, leading to a set of five steps that go up to the boardwalk. To the left of the staircase, facing the boardwalk, is a handicapped ramp. Cl exh 3F.

As to the snow on the patio
, Scelza testified that " the patio itself had some clearing, but it wasn't a very good clearing. It had some shoveled snow for a pathway." Claimant said he then proceeded to the steps that lead to the boardwalk. He described the condition of such steps, which were wide enough to have three railings, as follows: "[t]hey had been shoveled, but [were] still very much covered with ice and snow...It was a ... heavy type of snow and ice that was on those steps." Claimant did say that the stairs had a pathway shoveled on the right portion, where he had climbed them.
Scelza then
"walked up to the top step. I was observing the boardwalk itself and I had seen what a treacherous condition it was in and I made an about-face ... I was going to return to the car and go home." Claimant testified that he did not see any warning signs or barriers blocking off any portions of the park.
Claimant recalled that he came down the left side of the stairs near the handicapped ramp.
"The steps were snow and ice and a very large patch of ice down on the bottom step, on the pavement...about twelve [inches] by eight." Scelza recalled that he had placed his left foot on a patch of ice covered by snow and then "I went down onto my right side and my left ankle rotated halfway around my foot."
Scelza testified that he did not feel any salt, sand or ash underfoot on the steps, nor did he s
ee any of these substances in the area. After falling, he was unable to get up, and he recalled trying to crawl toward the park office, advancing about ten feet when two men, who he did not believe were park employees, saw him and helped until park personnel arrived.
Three other witnesses testified at trial, all of whom were employees of Sunken Meadow - - Eric Broecker, the assistant superintendent; William Amatucci, a park maintenance worker; and Richard Garland, who was employed in computer support.

Mr. Broecker, whose official title was Park Manager II, functioned as the park's assistant superintendent, and had done so for over ten years. He described his responsibilities as
"deal[ing] with everything and anything that has to do with the park ... [m]aintenance, course operations, all of it." Broecker explained that in the winter months only the one toll booth was open at which a light, "just like a stop light," shows either red or green to indicate whether the park is open or closed.
The assistant superintendent explained that while a sign displays the park opening as 6:30 a.m.,
"most of the time we open it earlier." Broecker testified that in March of 1999, his work schedule was Wednesday through Sunday, with Monday and Tuesday off, and his starting time was 8:30 a.m. But he stated that on the day in question, he was at work, a recollection supported by his March 16-dated signature on the Patron Accident Report (cl exh 4).
In the case of snow, Broecker explained that a decision would be made to open Sunken Meadow when certain areas were cleared. The park is closed by preventing access at the toll booth, where in addition to the stop light, there is a barricade on a swing hinge that is moved into position when the park is closed. See also cl exh 5, pp 17- 20. It is not uncommon, according to Broecker, for members of the public to gain access to the park when it is closed by taking the service road around the back of the toll building. Broecker added that when the park is open, it is completely open (with limited exceptions for
certain activities unrelated to inclement weather).
According to Broecker, the unwritten protocol is that
"they wouldn't open the park with that kind of snow unless the roadways, parking lots, stairs going to the bathrooms and the handicapped ramps were cleaned." After these areas were cleared, "they would open up the park and then continue to work beyond the ramp areas out to the boardwalk and on the boardwalk... We would make a path going up the steps wide enough for two people to have access to holding on a railing, go[ing] up the stairs. The handicapped ramp would be completely shoveled from right side to left side, but we would not clear fifty feet of steps." Sand, salt or an artificial substance would be used as needed, according to the assistant superintendent. If there was an area after shoveling that was "ice or extremely packed snow, we would treat it with ... sand, salt or a combination of both."
One or two employees would be on duty by 6 a.m., another by seven and perhaps two or three more by 8 a.m. In addition, persons working under the auspices of a youth program (YCC) were assigned to the park, but they did not usually arrive until about 10 a.m. The daily log for Monday, March 15 provides that two YCC's shoveled snow (cl exh 1).

The same log page lists seven employees on duty for that Monday. Next to five of the seven names is a notation for a snow-removal assignment, either "plow," "plow assistant," or "shovel." Another employee, N. Santamessina, had maintenance activities that may have been related to the snow equipment. For Tuesday,
the diary log lists two employees as plowing snow.
While Broecker did not have any specific recollection of whether the sander was used, he explained a log entry "mount snow removal equipmt" on Sunday, March 14 (cl exh 1) as follows: " I would say they put the plow on the dump truck and the plow on a smaller rack truck, along with a salting and sanding machine."
When asked about the notation "Plow, load sander" alongside the name T. Toscano for Monday, Broecker allowed as to how
"you would take let's say a small bucket loader and pick up salt, sand, whatever - - or a combination of the both and pour it into this hopper." There was an exchange suggesting that this was done in preparation for the next day; however, in view of the somewhat confusing context of the question and the undisputed testimony that snow fell from late Sunday night into early Monday afternoon, I conclude that this loading and use was done prior to Mr. Scelza's fall. On the issue, Mr. Garland was very definite and conveyed same in a credible manner:
Q. And you don't have any idea whether any salt or sand was applied in that area as well?

A. There was salt and sand in the atrium.
One of the employees working on snow removal on Monday was Mr. Amatucci. When shown the log page for Monday, March 15
th, it refreshed his recollection that he shoveled snow on that day. When asked whether he had shoveled the two sets of stairs and the handicapped ramps, Amatucci responded, "Yes... I was told to remove all the snow and ice." The witness said he started shoveling a little after 7 a.m. and was finished in a couple of hours. Note that the low temperature on Monday was 32 and the high 41 degrees. The low for Tuesday was 32 and the high 50 (cl exh 2).
The State is not an insurer
. Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977). That an accident occurred does not necessarily establish liability on the part of the defendant; claimant is required to connect his injury to a breach of duty owed by defendant and to show that defendant's acts or omissions were a substantial cause of the events which produced the injury. Russell v Hepburn Hospital, 173 AD2d 985, 569 NYS2d 826, 828 (3d Dept 1991).
The State, like any owner of real property, is under a duty to exercise reasonable care given the circumstances.
Basso v Miller, 40 NY 2d 233, 386 NYS2d 564 (1976). "This standard must be applied with an awareness of the realities of the problems caused by winter weather..." Marcellus v Littauer Hospital Assn., 145 AD2d 680, 681, 535 NYS2d 224, 225 (3d Dept 1988) (citations omitted). Moreover, a failure to remove all the ice and snow from the subject area is not negligence. Bricca v New York Telephone Company, 37 AD2d 564, 322 NYS2d 585 (2d Dept 1971).
In the instant case, the staff of Sunken Meadow State Park took reasonable care to clear ice and snow given the circumstances. Paths were cleared in some areas like the staircase leading to the boardwalk that was fifty feet wide, leaving snow and perhaps ice on most of the stairs. Mr. Scelza was extremely familiar with the park, utilizing its facilities virtually every day for some 20 years. While in the non-winter months there were other access points to the park, it is clear from claimant's testimony, that on hundreds of occasions before his accident, he took the same route into the park that he did on March 16, 1999.

Claimant testified that in 20 years, he recalled only two occasions
when the park was closed. Surely then, there must have been times when Scelza was in the park on the day following a snowfall of some 4 to 6 inches. Not only had he been in the park before, but the conditions of the park that Tuesday morning were readily apparent; he agreed that "there was still obviously snow and ice on the ground..." That the tollbooth light was set at green and the swing gate up was consistent with park policy. The credible testimony of Broecker and Amatucci, supported by the daily log (cl exh 1), indicate that the protocol was followed in clearing essential areas, which the two had said were necessary before opening the park, and that such protocol is consistent with Marcellus, supra, among others.
Furthermore, claimant said he was caused to fall by a patch of ice at the bottom of the stairs, but claimant himself put its visibility at issue: "...when I put my foot down, I felt the crunchy, hard ice under the snow... Didn't exactly see it. I felt it when I put my foot down onto the pavement."
See Murphy v 136 Northern Boulevard Associates, 757 NYS2d 582 (2d Dept 2003), in which the appellate court reversed the court below and dismissed the case because plaintiff, in her deposition testimony, said that she slipped on "black ice," which she had not seen before her fall. The Second Department ruled that plaintiff failed to demonstrate that the hazardous condition was visible and apparent, and existed for a sufficient length of time for the property owner to discover and remedy it before Ms. Murphy fell.
Mr. Scelza's testimony had a number of weaknesses in it which raise questions as to just what happened. When claimant on cross-examination was asked whether he told people in the emergency room that he injured his ankle when he slipped on ice while jogging, the following exchange ensued:

A. I can't recall.

Q Is it possible you told them that?

A. It's possible.

On direct,
claimant initially said that he used the boardwalk for "jogging and walking," then a few minutes later said, "I was going to go to the boardwalk to do walking." On cross-examination, he agreed that his routine was to jog four and a half to five miles a day. These days, sneakers and jogging suits are worn for a wide range of activities, some of them quite sedentary. That claimant was so dressed does not necessarily imply that he was jogging, but he was certainly prepared to do what he testified he had done every day for years.
On the stand, Scelza maintained that he fell when walking down steps on the left side,
but the Patron Accident Report[1] and the testimony of Garland indicate otherwise - - that he fell on the handicapped ramp. (See the "X" Garland made on cl exh 3F). In addition, Scelza testified that when he got to the top of the steps near the boardwalk, he turned around and "came down those set of steps again," suggesting he came down the same way he went up. On cross-examination, claimant conceded that in fact he walked across the top of the stairs and came down the opposite side. ***
In conclusion, claimant Anthony Scelza has failed to show by a fair preponderance of the evidence that the defendant breached a duty to him and that such breach was the proximate cause of his fall of March 16, 1999; therefore, his claim and that of his wife, Joan Scelza, are
dismissed. All motions not previously ruled upon are hereby denied.


June 11, 2003
New York, New York

Judge of the Court of Claims

[1] Claimant's exhibit 4. No evidence was adduced to suggest that the information contained in the accident report was from the two men that claimant said first came upon him - - an argument that such information is inadmissible is therefore not viable (even assuming the two were not employees).