New York State Court of Claims

New York State Court of Claims

CERVINI v. THE STATE OF NEW YORK , #2003-016-042 , Claim No. 102273


Protruding metal piece on sidewalk was deemed responsibility of State DOT, which was found 2/3 liable.

Case Information

GIOVANNI CERVINI, an Infant by his mother and natural guardian ANTOINETTE CERVINI, and ANTOINETTE CERVINI, Individually
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:
Waxman & Wincott, P.C.By: Kenneth R. Shapiro, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Denis J. McElligott, AAG
Third-party defendant's attorney:

Signature date:
June 13, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the trial on liability of the claim arising from Giovanni Cervini's trip and fall on January 14, 2000. As of such date, Cervini, who was born on October 7, 1986, was thirteen years old. By the time of the trial, he was age sixteen. As an infant, Giovanni's claim is of course brought on his behalf; in this case by his mother, Antoinette, who also has a claim, albeit derivative. Unless the context indicates otherwise, references herein to "Cervini" or to "claimant" in the singular will mean Giovanni Cervini.

That Friday evening, Cervini and a group of his friends intended to go to the movies in Franklin Square (Nassau County). When they went inside the theater, the youths realized they were too late for the movie they had wanted to see. Claimant then called his mother and asked her to pick him up.
According to Cervini, his mother said she would be there in five or ten minutes and instructed him to wait by the corner.
Such location was in front of a restaurant, which had a 1007 Hempstead Turnpike address; the movie theater was only two stores away in the middle of the block. In early 2000, the name of the restaurant was
El Gelato (cl exh 6). What happened next is described by claimant:
We left the movie theater and then we were jogging to the corner, and then my toe ... my right big toe ...just got caught on this metal piece and I fell forward ... it put a hole through the sneaker (Claimants' exh 4 is the torn sneaker).
Cervini recalled that after the accident he observed what had caused him to trip.
He testified that what he saw that day of the metal piece is accurately depicted in a number of photographs that were introduced into evidence at trial, as did his mother when she briefly took the stand (cl exhs 1, 3, and 5-7) - - testimony that went unchallenged. What the photos show is a piece of metal bent at something less than a 45-degree angle from the ground. A number of everyday objects in the photos demonstrate that it is a fairly sizable piece, on the order of a half a foot long. Moreover it looks to be fairly securely anchored in the concrete sidewalk; this was not a loose fragment that would have simply given way on contact.
The evidence is clear that the metal piece is a dangerous or defective condition within the comprehension of, for example,
Trincere v County of Suffolk, 90 NY2d 976, 665 NYS2d 615 (1997) and Poirier v City of Schenectady, 85 NY2d 310, 624 NYS2d 555 (1995). It is basic however, that to find defendant negligent, it must also be shown that defendant created the condition, or if not, that it had notice or should have had notice of such condition for a sufficient period of time to discover and remedy same. Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996).
There is no direct documentary or photographic evidence as to what this metal piece was originally a part of.
To that end, claimants introduced into evidence the July 30, 2002 deposition testimony of Carlos Antonio Garcia (cl exh 2) and called Michael McGuire to the stand.
Garcia was subpoenaed for the day of the trial, January 10, 2003 (court exh 1), and a translator was secured for him. Representations were made that other efforts were undertaken to secure the witness' trial attendance, but at the last minute Garcia relayed to claimants' counsel that he would not appear. For these reasons, the deposition was admitted under CPLR 3117.3

In his deposition, Mr. Garcia testified that he had lived in Nassau County, either Mineola or Albertson, for some four or five years and had worked at the El Gelato restaurant since 1998, working six days a week. His testimony was that he recalled a "no parking" sign in front of the restaurant, which was affixed to a pole. He stated that he had seen a number of workers remove the sign and load it onto their truck. As to when it was removed, Garcia said, "I don't remember very well, but I would say it was removed around 1999 (cl exh 2, p 6).
Garcia was vague or uncertain as to whether anything was left in the ground; when shown one of the photographs of the protrusion at issue, he responded, "I hardly remember it very well, sir" (
id., p 8). Further, he conceded that he had never previously seen any other sign erected or taken down along this stretch of roadway.
Mr. McGuire, an employee of the State Department of Transportation (DOT), headed a four-employee unit that is responsible for signage with a jurisdiction including Nassau County. He testified that 1007 Hempstead Turnpike in Franklin Square, "curb to curb,"
was the responsibility of the State of New York.
McGuire agreed that were there a no-parking sign in front of 1007 Hempstead Turnpike, it would have been the responsibility of the State. With regard to responsibility for an incomplete removal:
Q. And, sir, if a sign was removed from that location and a small piece ... remained, whose responsibility would it be upon notification to the State of New York to fix that?

A. It would be my [State DOT] responsibility to fix it.
Note that the foregoing exchange is cast, perhaps not by design, in language that could include a third party ("upon notification").
McGuire explained that his crew would not leave a piece of metal sticking up:
I am the supervisor and under me are ...Riley, Dave and Glen...When we go out ... to either erect a sign or remove a's our job to insure that ...whatever metal's sticking out of the ground, whatever we remove, we burn it off or we jackhammer it down into the ground ... [that's] standard operational procedures. We would never leave anything in the sidewalk area or any area for someone to trip.
With that said, Mr. McGuire was unable to shed much light on which entity was the operative actor in this instance or even what kind of sign was once on that pole. As to the latter, the supervisor remarked that he had no information as to whether the pole was for a no parking sign or a stanchion from the phone company or electric utility
. "I cannot identify it as a post that I use, a Franklin Square post. There's no indication to me by looking at it." McGuire said that he did not have the surveys thereon available to him, implying that they were to be found at the Department's Hauppauge office in Suffolk County.
The witness was unable to rule out that it could have been a no-parking sign:
Q. ..all I'm asking you is the location where that protrusion is with respect to the curb, is that a location that would be consistent where a no parking sign would be if there would be such... sign?

A. It's possible.
McGuire noted that were the original structure a sign post and not a utility pole, it could have been removed only by DOT
or a contractor retained by the State. McGuire searched his own records in Nassau and found no work orders to indicate that his people had any involvement with this structure, although he conceded that there are circumstances when a sign post could be removed by DOT without a work order. A search of records which might have included the Hauppauge office (the witness was unclear) turned up no reports of prior similar accidents at the location or complaints of the protruding condition.
The protruding metal piece, as noted above, is unquestionably a dangerous condition. Further, I find that Giovanni Cervini and Antoinette Cervini were credible witnesses as to how the accident happened - - Giovanni tripped and fell on the protrusion which, on the day of the accident, looked the way they said it did, that is to say as it appeared in the photographs introduced at trial.

However, a significantly closer call is what was originally there, who removed it, and if appropriate, who knew of same. If the original structure was a no parking sign, then it was either taken down by the Department of Transportation or an outside contractor engaged by DOT. If the former, the defendant would have created the dangerous condition and is negligent per
Gordon, supra. If a contractor performed the job of removal, then claimants have met their burden inasmuch as: i) defendant is either directly responsible per the authority of Rothstein v State of New York, 284 AD2d 130, 726 NYS2d 636 (1st Dept 2001)[1]; or ii) defendant surely had notice because it would have or should have reviewed the work of its contractor.
The burden the claimants are required to meet here is the fair preponderance of the credible evidence (
PJI 1:23 and 1:60). Carlos Garcia worked six days a week beginning in 1998 in a restaurant only a few feet from the offending condition (cl exh 6). He testified that the structure had originally been a no parking sign. As indicated above, Garcia was at some places very tentative in his deposition. He did not have a driver's license; we might expect a nondriver to be less attentive to such a sign. Nonetheless, Garcia's testimony is legally sufficient, together with McGuire's testimony that it was possible the structure had been such a sign, to conclude such fact per the requisite burden of proof, and I so find (see PJI 1:94). Moreover, information to overcome such conclusion with the signage survey that McGuire had mentioned may have been available to defendant at its DOT Hauppauge office, but it did not elect to expend the resources to track down such information.
In sum, I conclude that defendant is responsible in negligence to the claimants for the trip and fall of Giovanni Cervini. It is therefore unnecessary to consider the weaker argument, from claimants' vantage, that even were the structure erected and incompletely removed by a utility company, the State, which was in control of the property, would have been constructively on notice.

The defendant was negligent; what about Cervini? Claimant testified he could not see the protrusion because it was dark; at best there was some light from the store fronts:
Q. It was dark and you ran, you jogged anyway.

A. Yes.
Thirteen years of age is old enough to appreciate the dangers in jogging on a dark sidewalk (
Feisthamel v State of New York, 89 AD2d 756, 453 NYS2d 904 [3d Dept 1982], PJI 2:23), and I find that Giovanni Cervini was negligent and must bear one-third of the responsibility for his trip and fall.
In view of the foregoing, I find the defendant to be
sixty-six and two/thirds (66 2/3)% liable for the trip and fall of Giovanni Cervini on January 14, 2000 and any injuries resulting therefrom to the claimants. All motions not previously ruled upon are hereby denied. A trial on the matter of damages will be scheduled by the Court.

June 13, 2003
New York, New York

Judge of the Court of Claims

[1]The slip and fall by Ms. Rothstein occurred in the midst of construction performed by the contractor.