New York State Court of Claims

New York State Court of Claims

NOURAEE v. THE STATE OF NEW YORK , #2003-016-073, Claim No. 103737


Synopsis



Case Information

UID:
2003-016-073
Claimant(s):
YVONNE NOURAEE and NADER NOURAEE
Claimant short name:
NOURAEE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103737
Motion number(s):

Cross-motion number(s):

Judge:
ALAN C. MARIN
Claimant's attorney:
Robert A. Flaster, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Victor J. D'Angelo, AAG
Third-party defendant's attorney:

Signature date:
September 29, 2003
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is the decision following the liability trial of the claim arising from the fall of Yvonne Nouraee on the campus of the Maritime College of the State University of New York on December 7, 2000. Inasmuch as the claim of Nader Nouraee is derivative of his wife's, references herein to "claimant" and "Nouraee" will mean Ms. Nouraee.

SUNY Maritime College is
in Bronx County on a peninsula stretching into Long Island Sound in the shadow of the Throgs Neck Bridge, which connects the Bronx to Queens County. The Nouraees reside on City Island, which is also part of Bronx County. On that December day, Ms. Nouraee and three other adults were taking a group of about 15 youths on a tour of the college, most of whom were cub scouts about age 10, [1] some were older siblings.
At about 10 a.m., the group assembled at a dormitory building where they were met by Rebecca McCaffrey, the assistant director of university advancement. Ms. McCaffrey's duties, which covered government relations, fund raising and alumni relations, included the coordination of visits to the college.

That morning, McCaffrey functioned as tour leader, and she proceeded to lead the group out of the dormitory across McGowan Street
onto a walkway, intending to take the scouts and their supervisors over a grassy area to a fort, which contained a museum as well as classrooms. The path, known as the First Class Walkway, is blacktopped and about four feet wide. McCaffrey indicated she chose this route to the fort so as not to encounter any vehicular traffic. Claimant testified that McCaffrey had described such route as a shortcut.
The First Class Walkway runs perpendicular to McGowan Street, beginning at a sidewalk that runs along the street. The walkway goes past a fire call box, a small tree and then perhaps 50 feet from the street, a large tree near which claimant maintains that she fell. On each side of the path are residential quarters and beyond them, the concrete and steel ramp of the Throgs Neck Bridge looms. (See cl exh 11).

McCaffrey was at the front of the group. Claimant recalled that she was walking at the very back; McCaffrey testified that she believed that Nouraee was "in the back of the group." While that December day was cold, there was no precipitation that morning and the street and the path were free of any ice or snow.
Nouraee recalled that she was walking at a normal pace; she described what happened next as follows:
Well, we were just walking and my left foot got caught in something ... And then I - - I tripped and I went down ... the front of my foot ... got caught right in that hole there - - in that crack.
Nouraee indicated a crack in the sidewalk visible in the enlarged photograph that is claimant's exhibit 2; in its foreground are a large tree to the left of the path as one walks up from McGowan Street, and opposite the tree, three noticeable cracks in the blacktop. Exhibit 2 is essentially a blow up of this tree and the surrounding area.
In addition to Yvonne
Nouraee, and the three cub scouts who testified (note 1), claimant's case also included the testimony of college police officer Jerry Antos. In addition to McCaffrey, defendant called to the stand nurse Michael Brady and officers Gregory Thompson and Keith Bassolino.
***
The State of New York is under the same duty as any property owner to maintain its premises in a reasonably safe condition
. Preston v State of New York, 59 NY2d 997, 466 NYS2d 952 (1983). There is no question that Ms. Nouraee fell at SUNY-Maritime on the day and at the time in question, but that an accident occurred does not necessarily implicate negligence on the part of the defendant. Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977).
In any event, even assuming notice of this apparently longstanding condition, claimant must show that her fall to the ground was proximately caused by a dangerous condition or defect.
PJI 2:90 and 2:91; Madrid v City of New York , 42 NY2d 1039, 399 NYS2d 205 (1977). As the case unfolded at trial, the actual location of the fall became a central issue. Although the cracks by the large tree may not have represented a dangerous condition in light of the circumstances obtaining in this case (Trincere v County of Suffolk, 90 NY2d 976, 665 NYS2d 615 [1997]), one (or more) of these cracks was what claimant said had caused her fall; she pointed nowhere else on the path.
Cub scout Anthony Grillo testified about the location
of the fall, and he did so in a manner consistent with claimant's testimony, namely that the accident happened "[a]bout a foot and a half away from the tree in front of that crack right there." Anthony said that when "I turned around to ask her a question she was in the process of falling forward and then I saw her on the ground ..." Also consistent with Nouraee as to accident location was the testimony of cub scout Angelo LaBate, who added that he did not see what caused claimant to fall.
Other witnesses - - Antos, Brady, Thompson and Bassolino - - saw Ms. Nouraee a few minutes later, but the timing is not significant inasmuch as claimant said that she did not move after she had fallen.
McCaffrey, who was guiding the visiting group, was obviously already on the scene.
McCaffrey, at the time of trial no longer employed by the defendant, was a very credible witness. To her, there was no question that claimant was some distance from the large tree, because McCaffrey herself, who was in front of the group, had just walked past the large tree, at most perhaps a couple of steps. She recalls hearing someone yell and turning around: "
I went back down - - back down the walk to - - to see what happened and see who had fallen ... I observed Ms. Nouraee sitting on the ground." The witness saw Nouraee unsuccessfully attempt to get to her feet.
McCaffrey headed for the phone in the college bookstore to call the college's police chief, and when she returned, no more than 10 minutes later,
claimant was in the same spot. McCaffrey testified that Nouraee's position was away from the larger tree back toward the direction of the street, "[m]aybe twelve to fifteen feet lower, you know, in the beginning of the first-class walk." The witness marked a photograph at a spot only about a fifth of the way from McGowan Street to the large tree (def exh B, marked with the letter C in black ).
Officer Antos placed the claimant about half-way between the street and the large tree, but still considerably down from the place Nouraee testified to. See the red "X" on defendant's exhibit B. Brady, the college nurse who was "in charge of health care for the campus community" and a highly credible witness, learned of the accident over a campus radio frequency. When he came on the scene, Brady found claimant on the path, much closer to the street than to the large tree. He marked Exhibit B (with a red "Y") just a little further up from McGowan Street than did McCaffrey.
Officer Thompson had just been appointed a probationary police officer one week earlier. He described Nouraee's position as 15 feet from the street; although he did describe that spot as 15 to 20 feet from the large tree. The distance from the street to the large tree would appear to be more than 30 to 35 feet, but in any event, he does not place claimant near one of the cracks by the large tree.

Mr. Bassolino, at the time was a student at the college and a member of its emergency medical unit. He was the attendant on the responding ambulance. Bassolino also described claimant's location as closer to McGowan Street than to the large tree: see the red "X" he wrote on defendant's exhibit A.

Nouraee bears the burden of proof, which means of course that her claim
, or her claim on a particular issue, must be established by a fair preponderance of the credible evidence. The evidence in support of her claim, or on a particular issue, must appeal to the trier of fact as more nearly representing what happened than the evidence in opposition to it. (PJI 1:23; 1:60). To this trier of fact, the evidence as set forth above is insufficient to prove that the particular condition claimant alleges was the proximate cause of her injury: she fails to meet her burden that a crack (or cracks) in the First Class Walkway by the large tree was what caused her to fall. Consequently, she has failed to prove an element necessary to hold defendant liable in negligence.
***
In view of the foregoing, the claim of Yvonne Nouraee and Nader Nouraee (no. 103737) is
dismissed. Any motion which has not heretofore been ruled upon is hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY

September 29, 2003
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] Three of the cub scouts testified at trial; each was born in 1990.