New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2003-016-070, Claim No. 100597


Case Information

ZUNILDA LOPEZ The claim of Cesar Marte was withdrawn on the record at trial.
Claimant short name:
Footnote (claimant name) :
The claim of Cesar Marte was withdrawn on the record at trial.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Eppinger, Reingold & Korder, Esqs.By: Mitchell Korder, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Albert E. Masry, AAG
Third-party defendant's attorney:

Signature date:
September 9, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision from the liability trial of the claim of Zunilda Lopez, which arose from her fall at Riverbank State Park on June 23, 1997. The park is located in upper Manhattan overlooking the Hudson River between 138
th and 145th Street. Opened in 1993, Riverbank State Park has extensive facilities including basketball and tennis courts, two children's playgrounds, a softball field, a running track encircling a football/soccer field, a gymnasium, indoor and outdoor swimming pools, a skating rink and an amphitheater (def exh C).
In June of 1997, Ms. Lopez lived with her three children and Cesar Marte, who was the father of her youngest child. On the day in question, claimant and her two oldest children together with Mr. Marte set out for Riverbank intending to play with the children. Lopez' recollection that
"it was still light out" suggests that it was fairly late in the day, but claimant did not get more specific, and no accident report was received into evidence.
Since claimant and her family lived only a few blocks from the south end of the park on West 136
th Street, they walked, starting out by crossing the bridge that spans the Henry Hudson Parkway. The group then walked on a service road that runs the length of Riverbank State Park on its east edge along the Parkway, intending to do so for only a short distance. The service road is bounded by two narrow sidewalks, no wider than two feet (cl exhs 2 and 5). According to the trial testimony of Oscar Smith, the deputy director of Riverbank, not only park vehicles used this road, but so did pedestrians.
Because of the narrowness of the sidewalks, claimant and her family were walking in the road. The first 35 or 40 yards of the road is made of concrete, but beyond that, in the area where claimant fell,
there is a section of the road or ramp that is asphalt on top of concrete. A significant amount of the black asphalt has peeled or chipped off, exposing patches of the gray concrete below. See the photographs that are claimant's exhibits 1, 2 and 5.
On direct examination when asked
, "what happened to you on that evening," claimant responded as follows:
We were walking down the - - down through the other path of the bridge. And as we were walking, we were talking like we usually do, and that day I fell down.
Lopez testified that when the asphalt became uncovered, it in fact chipped off in small pieces like "black little pebbles." On cross-examination, the following exchange ensued:
Q. [W]hat caused you to fall?
A. What caused me to fall?

Q. Yes. Why did you fall?
A. I believe it was the pebbles. The black pebbles on the floor.
According to Ms. Lopez, Mr. Marte and her two children were walking in front of her on their way to the ball field.
Thus Marte testified that he did not see her fall; when he heard Lopez scream, he turned around, but by that time she was already on the ground. As to whether he may have seen what caused her mishap:
Q... [W]ere you able to see what if anything was under Ms. Lopez' feet when she hit the ground?
A. It was asphalt that was there.

Q. Okay. Anything else?
A. Pebbles and little chips and stuff.

Marte estimated that these asphalt chips or pebbles were "[a]bout the size of a pea," then added that "it could be a little bigger."
The State of New York, as with any property owner, is under a duty to maintain its premises in a reasonably safe condition.
Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976). That Ms. Lopez fell at Riverbank Park on June 23, 1997 is not at issue, but that an accident occurred does not necessarily implicate negligence on behalf of the defendant. Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977).
Irrespective of who created a particular condition and whether there was notice thereof, Lopez must show that a dangerous condition or defect was the proximate cause of her fall. Madrid v City of New York, 42 NY2d 1039, 399 NYS2d 205 (1977); PJI 2:90 and 2:91. To this trier of fact, it is unclear just how these pebbles or chips caused Lopez to fall; in fact it does not seem all that clear to Lopez herself: "I believe it was the pebbles." Claimant's testimony makes no connection between the pebbles and her fall. There was no testimony, for example, that the pebbles were slippery like ball bearings, or that they accumulated in a place to effectively create an uneven surface.
In her deposition, claimant was similarly vague, but included a reference to possibly twisting her ankle:
We were just walking to the park, and the same way that we always walk, and I just twisted my - - I don't recall if it was that I twisted my ankle or was it - - the only thing I know is that I fell, and I just heard like a pop ...
Q. You said you fell. What caused your fall?
A. I don't remember. [It's] been so long. I know that the floor was messed up...all chipped up

[Def exh B, pp 13 and 16].

Beyond its sketchy substance, claimant's testimony came across as inconsistent and defensive, although such could have been the result of Lopez' unfamiliarity with, and discomfort in, the courtroom setting. Claimant was reluctant to admit the frequency that she went to the park, to estimate the time of the accident; or even to identify a map of Riverbank State Park (def exh C).

As to the surface peeling away, photographs were submitted to show the effects thereof -- the ramp looks two-tone with large swatches of gray concrete showing (cl exhs 1 and 2), but we have no photos of the road containing loose pebbles or chips. It is undisputed that the chips or pebbles were the result of the wearing away of the surface layer. Given testimony that the pebbles were cleaned up every day, which included using an electric sweeping machine, there could not have been much of an accumulation at any one time.[1]

Whether the pebble-like fragments are estimated as generally pea-sized (Marte) or smaller than a quarter-inch (Smith), no
per se rule on dimensions obtains in these matters. Rather, "whether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case and is generally a question of fact for the [trier of fact]..." Trincere v County of Suffolk, 90 NY2d 976, 977, 665 NYS2d 615, 616 (1997) (citations and interior quotation marks omitted). In any event, it is not clear there were many pebbles, if any, at the accident situs. Nor is it clear how they caused the fall; after all, Marte testified that he was bouncing a basketball on the pebbles.
Claimant who in her 2002 deposition said she went to the park nearly every day, had never before fallen, or even stumbled because of these chips or pebbles, and had never seen anyone else do so; nor could claimant point to any such accident at Riverbank before June 23, 1997. Riverbank State Park is a facility which in spring and summer averages several thousand visitors a day, with 17,000
attending special events like concerts. Madhu Goradia (see footnote 2) explained that the black surface was applied over the concrete as waterproofing, a use or purpose not implicated in this matter (cl exh 4, pp 24-25).
To this trier of fact, Ms. Lopez has failed to meet her burden;
she has failed to show both that a dangerous condition existed and that the extant condition was the proximate cause of her fall and any resulting injuries (PJI 2:70; 2:90 and 2:91). Such conclusion is not affected by the testimony of Oscar Smith that a plan to resurface the roadway was on a capital project list (the date of which he could not fix as pre-June 23, 1997).
In view of the foregoing, the claim of Zunilda Lopez (no 100597) is
dismissed. It is therefore unnecessary to reach defendant's motion arguing that claimant's pleadings (cl exh 6) were jurisdictionally flawed for lack of specificity per §11.b of the Court of Claims Act; all other motions which have not been ruled upon are hereby denied.

September 9, 2003
New York, New York

Judge of the Court of Claims

[1] Smith provided the details on the machinery; the daily cleaning was confirmed in the February 4, 2003 deposition testimony of Madhu Goradia (cl exh 4, p 26), who was the manager of Riverbank's physical plant, a position he indicated that he had held since June 5, 1997 (id., p 6).