New York State Court of Claims

New York State Court of Claims



Case Information

LISA M. PUSTELL Lisa M. Pustell was 18 years old at the time of trial and the caption is accordingly amended sua sponte. In Motion No. M-66534, on February 23, 2004, I dismissed the claim against the State of New York, and the only remaining Defendants are the New York State Thruway Authority and the New York State Canal Corporation. The caption has been amended accordingly.
Claimant short name:
Footnote (claimant name) :
Lisa M. Pustell was 18 years old at the time of trial and the caption is accordingly amended sua sponte.
Footnote (defendant name) :
In Motion No. M-66534, on February 23, 2004, I dismissed the claim against the State of New York, and the only remaining Defendants are the New York State Thruway Authority and the New York State Canal Corporation. The caption has been amended accordingly.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December , 2005

Official citation:

Appellate results:

See also (multicaptioned case)


At approximately 8:00 p.m. on June 30, 1996, Claimant Lisa Pustell was walking along the Erie Canal path in the Village of Pittsford (Village) near the State Street Bridge at Schoen Place when she allegedly stepped into a hole left by a missing bollard, sustaining injuries to her right leg. The bollard in question may be characterized as a removable post, which when in place would seemingly block vehicular (but not pedestrian) traffic, and when removed would presumably permit service or emergency vehicles to pass. At the time of the accident she was nine years old and was in the company of her mother, father and siblings, but was last in line as the family was proceeding down the canal path to walk under the State Street Bridge. The family had just purchased ice cream and was eating either from a cone or from a cup, as Lisa was doing.

Lisa's father, David Pustell, who was in front with his wife, stated that he suddenly heard Lisa cry out in apparent pain and, when he turned toward her, he saw that her right leg was caught in a square steel-lined opening, what may be referred to as a bollard socket, in the middle of the walkway. He and his wife then freed her leg from the hole. He observed that there were two other bollards in place on either side of the empty center bollard socket and later noticed the apparently missing bollard lying on the bank on the ground between the path and the canal. He returned either the next day or the day after that and took a series of photographs (Exhibits 3 to 9) and then, a little over two years later,[1]
took additional photographs (Exhibits 1 and 2). These photographs show the hole created by the missing bollard, as well as the scene with the bollard back in place.
Lisa, testified that she was following her mother, father and siblings and, as any nine-year-old would, enjoying her ice cream. It was a pleasant evening and still light outside when she suddenly stepped into a hole. She then experienced severe pain and began to scream. She stated that the hole was in the center of the walkway and that she had not noticed it before she stepped into it since she was just placing a spoonful of ice cream into her mouth. She recalled that her father was five or so feet in front of her, and that he immediately turned and attended to her.

The primary issue before me centers on which municipal entity, the State Defendants or the Village of Pittsford, had jurisdiction over maintaining the portion of the walkway where the empty bollard socket hole was located. In a parallel Supreme Court action, summary judgment was granted in favor of the defendants named therein. In dismissing the complaint, the Supreme Court affirmatively found that the Village of Pittsford was not a responsible party, noting in part that: "The VanElst [sic] affidavit establishes that New York State is responsible for the area where the plaintiff's fall occurred, and the proof fails to establish that the Village assumed this responsibility or had any duty to the plaintiff." It is apparent that this finding relied in great part on the affidavit of William VanAlst, an engineer retained by the Village as an engineering consultant, who based his opinion on the " Jurisdiction of Maintenance Table" (Exhibits 11 and 12; Exhibit E, Sheet 10). Set forth on that Table is a reference to Trailway, which is located between stations BW 47+60 and 15+71, covers a distance of .294 miles and designates the State of New York as the agency responsible for maintenance. It further describes the features to be maintained as "Asphalt Pavement, Shoulder, Slopes, Drainage Systems, Landscape."

The work permit (Exhibit 13), dated April 17, 1995, identifies Cl station 2215+00 to Cl station 2228+00 as the work area for the installation of a transient dock and "a 12' x 295' bulkhead/retaining wall as per plans received in conjunction with project # 94003." The Use and Occupancy Permit (Exhibit H), on the other hand, describes the area covered in yet two other ways. The first refers to Cl St 2223+00 to Cl St 2227+00±, and, in the body of the permit, under the title Property Location, the area is described as "North side of Canal between Main St. and State St. (Schoen Place)." If one were to accept the permit's first description, the accident occurred on lands that the State Defendants had a duty to maintain; the second description places the accident scene in the area under the Village's duty to maintain.

VanAlst offered little insight into the core issue of who had responsibility for maintaining the area of the fall. It was clear from his cross-examination before me that, in his affidavit submitted in the Supreme Court action, he relied on Item 6 as set forth on the Table on Sheet 10 of Exhibit 11 to reach his conclusion that the
Canal Corporation was responsible for maintenance of the area where Claimant fell, but it was also clear that he took no measurements to verify that the stations set out on Exhibit 11 covered the area of the accident. It is apparent that the stations referred to on Item 6 of the Table on Sheet 10 are not accurate, but this witness quite obviously did not attempt to verify the accuracy of these critical locations nor did he go to the site to take essential measurements which would have given factual credence to his opinion. While he stated that he wanted his affidavit to be accurate, it was clear to me that it was not, and therefore even if he had been offered as an expert, I would be compelled to give little probative value to his opinion.
While it is no longer necessary to rule on the Defendants' motion to strike this witness's opinion due to the Claimant's failure to comply with section 3101(d) of the CPLR, I would note parenthetically that I would have granted the motion since the offer complied neither with the spirit nor the letter of the law.

Defendants also entered into evidence the deposition testimony of John Earls, Interim Superintendent of the Village's Public Works Department (Exhibit O, p 6). Earls had held that position before retiring in 1988 but when the Village terminated his successor early in 1996 he was asked to resume his duties in March of that year. While he had never seen any agreement between the Defendants and the Village regarding the maintenance of the subject canal path in the Village, he stated that the Village had assumed responsibility for emptying the waste receptacles and his work crews also cleaned the path. He went on to testify that he never observed any State employee doing maintenance work on the path. While the Defendants supplied signs prohibiting bicycle use on a portion of the Schoen Place walkway in 1996, the installation was done by the Village. It appears this was done at the Village's request as they sought and received permission to regulate bike traffic in the area by local ordinance. Earls was unsure who was responsible for the maintenance of the bollards. He testified that up to 1988 when he retired there were occasions when the Village crews would go onto the path with its vehicles to do sewer maintenance and would have to remove the bollards for access to the sewer. However, while he was there in 1996 that never happened. He stated that the Superintendent of the Public Works Department had a key to the bollard and another key was located in the vehicle used for sewer cleanout. He stated that while he was the Superintendent his crews never repaired the walkway but he was not aware of what the agreement, if any, was after he retired in 1988.

On the night of the accident he received a call from the Sheriff's Department advising him of the accident and the missing bollard. He went to the scene when it was dark, but was unable to locate the bollard, and placed a cone over the hole. The next morning the bollard was found next to the bridge abutment and it was placed back into the empty bollard socket.[2]

Defendants called Frank Langdon, a Canal Corporation employee who at the time was a Canal Maintenance Supervisor 1 stationed in Monroe County.[3]
As such he had six to ten people on his staff and was responsible for scheduling maintenance needs and overseeing and supervising the employees assigned to do the particular work. His crew never did any repair or maintenance work on the canal pathway at Schoen Place between the Main Street and State Street Bridges. He recalled that he had removed a tree in that area but that it was located 20 to 30 feet from the canal pathway and he thought that had taken place after 1996.
Langdon received a report of Claimant's accident and was directed to investigate. When he arrived at the area he discovered that the bollard was missing, and during the course of his investigation he located it in the grass and weeds to the west of the accident scene some eight to ten feet off the path. He was unable to locate the lock however. Since the bollard, which had been supplied by the Defendants, appeared to be undamaged, it was placed back into the bollard socket and secured with another padlock. In Langdon's experience he was aware of only one other occasion where a bollard was reported missing and that was in the area of the Town of Perinton when one of the town's vehicles struck and damaged a bollard. Langdon testified that the daily reports for the period of June 25, 1996 to July 2, 1996 did not show that any work was scheduled or performed in the area which would have required his staff to pass through Schoen Place. He interviewed his employees during his investigation and was advised that no one was in that area during that time frame.

On cross-examination Langdon allowed that his crew would utilize the canal path in areas where they had maintenance responsibilities such as mowing the banks, cutting away tree branches when necessary, landscaping areas along ramps and paths, but again only on those portions of the pathway where the State Defendants had responsibility for these tasks. He never assigned his crew to do any of this work along Schoen Place since he had never been directed to do any maintenance work along that area. He stated that he was unfamiliar with either Exhibit 11 or Item 6 of the Jurisdiction of Maintenance Table set forth on Sheet 10 of Exhibit 11 (
also see Exhibits 12 and E).
Claimant then called Richard Manns, a Canal Corporation engineer who, in 1996, had the title of Permit Engineer and approved the permit in question in this matter. In addressing the location of Claimant's accident he explained how he determined the location where the fall occurred by using wheel measurements and canal stations (Cl St). He advised that he referenced canal stations designated on various exhibits as "Cl St" and testified that they represent known fixed points. He then stated that these designations are usually followed by four numbers: the first two identify the station and the second set of numbers is that station's distance from the next station expressed in 100-foot increments. He further stated that if those numbers are followed by a plus (+) sign, that expresses additional distance in increments of a single foot or unit.[4]
He indicated that he visited the accident site approximately five times and took various measurements, including measurements from the place of the missing bollard as depicted on Exhibits R, Q, 3 and 4. Manns then was able to fix the center line station where the Claimant fell using his measurements, the wheel and the known canal stations. He described how he employed the triangulation method and set Claimant's fall by Cl St 2214+39 (Exhibit G, pages 1 and 2). Based on this he reached the conclusion that the Claimant fell on that portion of canal property over which the Village had maintenance and supervisory responsibility and control, as evidenced by the Use and Occupancy Permit issued to the Village dated June 3, 1996 (Exhibit H).
Manns acknowledged that, while the canal stations set forth on the upper right hand corner of the permit did not cover the area of the fall, such was not determinative of the extent of the area of the permit and that was generally for internal use only. He opined that the actual description of the area encompassed was set forth under the heading "Property Description" and "Property Location" which incorporates the entire area of the walkway from the State Street Bridge to the Main Street Bridge. He further stated that on page two of the permit under the second sentence of paragraph 15, "New Permit", the Village was also given the authority "to enforce the conditions of this permit and applicable village ordinances with appropriate signage and fines, if necessary, within the permit area" (Exhibit H). That language, in his opinion, covered not just the placement and erection of the warning signs in areas where biking was prohibited, but also the maintenance, control and supervision of the area between the State Street and Main Street bridges encompassing Schoen Place and the canal walkway as shown on Exhibit A. Manns added that the Village did erect signs in the area between these two bridges along the canal walkway, and pointed out that the tax map references on the permit encompass an area that is greater than the area where the Village was permitted to erect its transient dock facility. Therefore, according to him, the issued permit encompassed the area between the bridges without limitation to the dock and its appurtenances.
Manns opined that VanAlst's conclusion, that the Defendants had maintenance responsibility for the area where Claimant fell based upon his reliance on the Jurisdiction of Maintenance Table set forth on Sheet 10 in Exhibit E, was flawed since the station limits in Item 6, Trailway, if properly researched, would put its location west of Schoen Place. He also stated that though the stations described on the Jurisdiction of Maintenance Table, Item 6 (see Exhibits E and F, Sheet 10) could not be accurate, and that in his opinion the correct stations should be "BW 47+60 to SP 15 +71, as shown on Sheet 40R1 of Exhibits E and F, the point where the Claimant fell was to the east of that area and therefore not a portion of the area that the Defendants were responsible to maintain.[5]
On cross-examination Manns conceded that, while the signs prohibiting bicycling were in place when he visited the site, he was unable to state when they were actually installed. He also agreed that the improvements to be made under the Canal Work Permit (Exhibit 13) actually extended beyond the orange portion of Exhibit A. Further it was noted that the work permit set the area of work between Cl St 2215+00 to 2800+00 and that Cl St 2215 was a greater area than that set forth in the Use and Occupancy Permit. He acknowledged that the accident location he fixed was further to the east of that location, an area apparently within the Defendants' control, according to Claimant.

Based on the proof before me I now grant the Defendants' motion to dismiss on the basis that Claimant has failed to prove a prima facie case of negligent acts by the Defendants.

For the reasons expressed above, I have given little weight to VanAlst's testimony. As I noted, Claimant's attempt to offer him as an expert without disclosing it pursuant to the Defendants' 3101(d) demand is improper and I would grant the Defendants' motion to strike it on that ground were it necessary to do so.

The central issue in this accident deals primarily with which public entity had the duty to maintain, control and supervise the area where the accident occurred. In this regard the Claimant's proof is unavailing and as a result she fails to meet her burden. There is no convincing evidence that the Defendants had either actual or constructive notice that the bollard was missing. In the first instance Claimant offered no credible evidence that the Defendants had the duty to maintain or supervise the area. Even the Village's Superintendent of Public Works stated that he had not seen any of Defendants' personnel do such work in the area of the walkway and that his (the Village's) crew did the maintenance work on Schoen Place. Coupled with the testimony of the Defendants' Maintenance Supervisor of this area at the time of the accident that his crews never performed any maintenance activities in the area, there is no evidence which supports Claimant's theory of liability based on notice. While Claimant argues that the Defendants manufactured the bollards and supplied them to the Village, that, by itself, does not give rise to liability. Even if the Defendants installed them along Schoen Place, and it is not clear to me that this was not done by the contractor, and there is no evidence before me to prove that they assumed continuing maintenance or control over the bollards.

It must be recalled that both the Village as well as the Defendants had the key to lock and unlock this bollard. There is also contradictory proof regarding who actually found the missing bollard and placed it back in the empty bollard socket, again failing to convince me that the Defendants had exclusive control over this area. It makes eminently good sense to me that whoever replaced the bollard recognized that this was a dangerous condition and that it needed immediate attention to prevent any further accidents. The record is devoid of any proof whatsoever as to whether the condition complained of existed for a sufficient period of time so that the Defendants should have known of its existence prior to the accident. However, since they had no maintenance responsibilities in the area they could not have been aware of its removal.

I found the Defendants' expert, Manns, to be credible in explaining the scope and purpose of the Use and Occupancy Permit. I note that he immediately took responsibility for the obvious error in setting forth the Canal Stations on that permit (Exhibit H, upper right hand corner). However, I am persuaded by his explanation that what defines the area encompassed by the permit is the description set forth in the body of the permit. In this instance that is the land between the State Street and Main Street Bridges along Schoen Place. Supplementing this with the testimony of the two individuals in charge of maintenance, one for the Village and one for the Canal Corporation, I am compelled to conclude that that was the accepted understanding and practice between Defendants and the Village. This conclusion is buttressed further as the Village did in fact perform some regular maintenance along the pathway including cleaning the pathway periodically of animal debris.

In addition, I am persuaded that prior to the issuance of the Use and Occupancy Permit it was the desire and intention of the Village to exercise control over this area by its request to enact and enforce a "no bicycling" ordinance in the area between the bridges. It received that permission conditioned on its use of Defendants' signs, which they supplied. Further the Defendants granted the Village the right to enforce any subsequent ordinance it might pass affecting the permit area (Exhibits I; J, p. 3; and H, p.3). Manns also described a warning painted on the walkway to the east of the accident site prohibiting bike riding on the path for those proceeding westerly, but it is not clear when it was placed there.

In my pretrial decision denying Defendant
's motion seeking summary judgment (Pustell v State of New York, Ct Cl, UID #2004-013-013 [Claim No. 104974 - Motion No. M-66534], Feb. 23, 2004, Patti, J.).[6] I expressed my concern that, despite her injury, Claimant might suffer the unpalatable result that no liability might be found on the part of these Defendants. It is a well-established legal tenet that the mere happening of an accident does not confer liability upon a named defendant, but rather requires proof by a preponderance of the credible evidence of culpable conduct by the party sued. That principle is so ingrained in our jurisprudence it requires no citation for authority.
I am fully cognizant that this result is of no solace to the Claimant, and frankly leaves me with the distasteful yet unequivocal conclusion that these Defendants did no wrong. That Claimant becomes the proverbial
"Wednesday's child" is a discomforting reality. Nonetheless I am required to put aside personal feelings and base my conclusions solely on the credible evidence, and, after a thorough and painstaking review of all the proof before me, I now grant the Defendants' motion and dismiss the claim herein.
All motions not heretofore ruled upon are now denied.


December , 2005
Rochester, New York

Judge of the Court of Claims

[1] He testified at trial that he took these photographs approximately 2 years after the accident and placed the date that he took the pictures from a printing date on the back of each photograph, September 7, 1997. I accept his trial testimony for ascribing the actual date.
[2] Earls' recollection differs from that of the Defendants' witness Frank Langdon.
[3]At the time of trial he held the same position with the Defendants, but in Erie County.
[4] For example Cl St 2215 is 100 feet from Cl St 2216, and Cl St 2215+25 represents a point 25 feet from Cl St 2215 toward Cl St 2216.
[5] This witness (Manns) determined that if one were to try and locate the stations set forth in Item 6 of the cited exhibits, the pathway would proceed along Main Street in the Village and not along the canal or through Schoen Place. He concluded that the people who drafted these plans intended that the area covered by Item 6 should have stated that the terminus was SP 15+71 in order to cover the intended area.
[6]Selected unpublished decisions and order of the Court of Claims are available via the Internet at