New York State Court of Claims

New York State Court of Claims

OUGHTON v. THE STATE OF NEW YORK, #2005-016-040, Claim No. 94168


Case Information

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):

Alan C. Marin
Claimant's attorney:
Pokorny, Schrenzel & Pokorny, PCBy: Kenneth I. Beal, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Leslie A. Stroth, AAG
Third-party defendant's attorney:

Signature date:
May 25, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the trial on liability of the claim of Millicent Oughton, which alleges that because of the State's negligence, she tripped over a piece of metal on a sidewalk in front of 657 East 98
th Street in Brooklyn.
The State, like any other property owner, is under a duty to maintain its property in a reasonably safe condition.
Clairmont v State of New York, 277 AD2d 767, 716 NYS2d 760 (3d Dept 2000), lv denied 96 NY2d 704, 723 NYS2d 131 (2001). But the State is not an insurer (Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977)); negligence must be proven, namely, that defendant created the dangerous condition or, if not, that it had notice, actual or constructive, for a sufficient period of time to discover and remedy the condition. 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).
Claimant contends that a contractor of the defendant was involved here. It is not at issue that the State's duty to maintain its property in good order is a non-delegable one with respect to a sidewalk or any place where the public is invited.
Rothstein v State of New York, 284 AD2d 130, 726 NYS2d 636 (1st Dept 2001); Thomassen v J & K Diner, 152 AD2d 421, 549 NYS2d 416 (2d Dept 1989).
In any event, the evidence presented was too scant, undocumented and uncorroborated for Ms. Oughton to prove her case by a fair preponderance of the credible evidence (
PJI 1:23). Claimant's case consisted of her own testimony and three photographs that were admitted into evidence (cl exhs 1-3). No eyewitnesses, notice witnesses, maintenance employees from the State or the alleged contractor were heard from, and while Ms. Oughton testified that she gave a " cop . . . a statement," no document containing such was offered at trial.
The Testimony of Millicent Oughton
This portion of the Decision sets out what is essentially the totality of Oughton's testimony and, including the photographs, the totality of claimant's case.

At about noon on Friday, September 25, 1995, Oughton, a dietary technician or aide at Brookdale Hospital in Kings County, went out to cash her paycheck at a Chase Bank as she did every two weeks. At the time, claimant had been employed at Brookdale for nearly 15 years, and had banked at that Chase branch for years. The early fall weather was clear that day, she was wearing "nurse's shoes" and did not require eyeglasses. The accident happened on her way back to the hospital from Chase, which Oughton said was a different route than her walk to the bank:
. . . I remember I walk[ed] on 98th Street coming back . . . [because] I always took an easier way to go down. I go on Rockaway, Linden Boulevard, and part of another street because it's easier where I'm going there.
I was walking . . .[on] [t]he sidewalk . . . [s]omething, a piece of metal, came up between my legs, and it pick me up in the air, and [I] went down.

Claimant testified that at the time she fell, there was also sheetrock in the area. She conceded that none of this is visible in any of the three photographs (cl exhs 1-3). A question on her direct testimony used the descriptive term "construction materials," but claimant did not use it in her testimony. Oughton recalled that she had not been in that particular place for two weeks and had not seen a metal pole or sheetrock on the sidewalk then and did not notice any construction activity at that time or on the day of her accident.

When claimant got up after she fell, "I went back into that . . . the building there that I showed. I saw that a lady was there, and . . . I told her what's wrong with me, what was wrong. I asked her for the phone to call a cop . . ." The police arrived; claimant was vague as to whether it was one or more officers, and as noted above, indicated that a statement was taken by the police. The aforementioned "lady" was never directly described as a security guard by the witness, although she was described as such in the questions posed to Oughton on direct testimony. Claimant contended that the police officer or officers saw "the thing was laying there"; no officer was called to the witness stand.

At trial, Oughton said that she had called her husband, who also worked at Brookdale Hospital, to tell him what happened, and that he went out the next day to photograph the accident scene, but in claimant's deposition, she stated that her husband had gone to the site on the afternoon of her accident. In any event, Oughton testified that the piece of metal and sheetrock were gone when her husband did the photographing; she did not know who may have removed the materials. It is unclear whether claimant accompanied her husband. The photographs her husband took were not offered into evidence.

In addition, claimant described the piece of metal as about five feet long, but could not describe or even approximate its width, nor for that matter, whether it was flat or cylindrical. Claimant's exhibit 3 is a photograph of a three-story building that looks like a small apartment building, apparently taken from across the street. It has two small signs bearing the number "657" and no other indication as to what kind of a building it might have been. The other two photographs are each taken from a vantage parallel to the building with a view down the sidewalk (cl exhs 1 and 2).
Even accepting Ms. Oughton's imprecise and often inconsistent testimony nine years after the incident, there was no showing of how the offending piece of metal came to be on or near the sidewalk, what its connection was to 657 East 98
th Street, what the State's connection was to 657 East 98th Street, how long the metal was there, whether there was actual or constructive notice, and if so, whether there was sufficient time to discover and remedy the situation. In view of the foregoing, the claim of Millicent Oughton (claim no. 94168) is dismissed. LET JUDGMENT BE ENTERED ACCORDINGLY

May 25, 2005
New York, New York

Judge of the Court of Claims