MASTROIANNA v. THE STATE OF NEW YORK, #2005-016-053, Claim No. 101566
Claim for trip and fall on crosswalk State had installed one year
earlier was dismissed where there was no proof of notice of the alleged surface
defect to the State and no probative evidence of the specifics of the
Footnote (claimant name)
THE STATE OF NEW YORK
1The caption has been amended to reflect that the State of New York is the only proper defendant.
Footnote (defendant name)
Alan C. Marin
Schwartzapfel, Novick, Truhowsky & Marcus, P.C.By: Lawrence A. Wilson, II, Esq.
Eliot Spitzer, Attorney GeneralBy: John Shields, Esq.
August 3, 2005
AFFIRMED 35 AD3D 674 2D DEPT 2006
See also (multicaptioned
This is the decision following the liability trial of the claim of Anthony
Mastroianni arising from his trip and fall August 30, 1998 in a pedestrian
crosswalk in the Village of Huntington, Suffolk County. That day was a Sunday
and Mr. Mastroianni, as he regularly did, attended St. Patrick’s Church,
which is located on the southeast parcel of the intersection of State Route 25A
and a town
road, Anderson Place. In the area, Route 25A is highly developed and is known
as Main Street.
Claimant parked his car in the church’s lot at about
9:45 a.m., in time for 10 o’clock Mass. The day was sunny and clear; the
streets and sidewalks were dry. Following the service, Mastroianni and a friend
of his walked to a nearby diner for a late breakfast. On the way back to his
car, “[a]s I was crossing the crosswalk, my foot hit a hole and I
fell.” Claimant testified that he had fallen forward and was knocked
unconscious. When Mastroianni regained consciousness, he walked 20 to 30 feet
and sat on a low stone wall bounding the church’s property (cl exh 17).
Main Street runs east-west; Anderson Place intersects it from the south, but
only in a “T-intersection” - - it does not cross Main Street.
Claimant fell on the Anderson Place crosswalk that was a few feet from Main
In early 1997, the State had entered into a contract (D257135) to
perform certain traffic signal and related work at dozens of intersections on
Long Island, including the intersection at Anderson Place. The latter
intersection had previously not had a traffic light; vehicles traveling north on
Anderson Place had been controlled by a stop sign at Main Street. As part of
the State project, the subject crosswalk was put down. It is unclear whether
there had been a crosswalk when the stop sign was in place.
The first day of
actual work on the contract was April 10, 1997; the last day of work was January
27, 1999, some five months after claimant’s accident. The State formally
accepted the project on March 26, 1999. The Record Plans from the Office of
Engineering of the State Department of Transportation (DOT) for the contract are
entitled “Installation of Traffic Signals at Various Locations.” It
covers 26 specified intersections involving State routes (cl exh 7). The map
and the list on the front page indicate the geographic scope of the project - -
from intersections in western Nassau County to those in Greenport and East
Hampton on the east end of Long Island.
The first page of Exhibit 15 is a
Letter of Transmittal from DOT to Commander Electric, Inc. dated January 15,
1998, but the checklist on page 2 of the Exhibit is dated November 24, 1997 and
the DOT memorandum relating to approval, on page 11, is dated December 2, 1997.
These documents include the cleaning and preparation of the road surface for the
Anderson Place crosswalk and its installation, which work was thus completed at
the latest by November 24, 1997. Given that the documents in claimant’s
exhibit 15 cover a broad area and the testimony that the traffic signal was
turned on August 25, 1997, the crosswalk work may have been finished earlier
than November 24.
For the period from late summer/fall of 1997 until
claimant’s accident in the late summer of the following year:
There were no reported accidents caused by the condition of the pavement
surface of the Anderson Place crosswalk.
- - There were no reported
complaints about such road surface.
The hole was filled, according to
claimant, the day following the accident (cl exh 27). In any event, there were
no photographs offered of the pavement surface as it existed on or before August
30, 1998, nor was there presented a description of the defect in any document,
and no accident report was submitted. Save claimant, we did not hear from any
witness who observed the defect that caused claimant’s fall. According to
Mr. Mastroianni, a crossing guard saw his fall and came to assist him, and an
ambulance was called by a passerby who saw claimant when he was sitting on the
stone wall and realized that he was injured. Claimant had lived in the
community his whole life and knew people there. On that note he mentioned John
Cody, a Town of Huntington employee or former employee, whom he knew well enough
to have a discussion with after the accident.
Mastroianni apparently did not
return from the diner by the same route, which change was somehow related to the
location where he had parked his car. Absent from Mastroianni’s
narrative was why his friend from breakfast was not there to witness the
accident: did he live a few blocks away and walk home; or was his car parked
in a different lot from claimant’s?
testimony as to what the hole looked like was uncertain. As noted earlier, he
initially described the defect simply as part of the phrase, “my foot hit
a hole . . .” After marking an X on a photograph which shows an asphalt
patch, not a hole (cl exh 22),
claimant was asked how he knew that was where he fell:
[T]here was a crossing guard who witnessed me falling and I became
unconscious, and she either revived me or was with me when I woke up, and when I
woke up she told me what happened. This is the hole that you - - your foot got
Subsequently, claimant was asked the dimensions of the hole
and he responded, “it was big enough for my full foot to fit in and then
deep enough to catch my shoe in the front . . . with the depth, I could feel my
- - my left side going down and . . . the front of my shoe was being held
back.” Claimant appears to have moved off his original narrative.
Claimant called to the stand engineer Nicholas Bellizzi, who is highly
experienced in highway and traffic engineering, including the safe movement of
pedestrians. Mr. Bellizzi worked from photographs
to deduce the condition of the road surface
prior to claimant’s
fall. He concluded that there were defects in the pavement at the time the
crosswalk was put down, because there was paint in the cracks: “If the
paint had been painted and then it cracked, you’d have very dark lines
where you’d see the asphalt, but the paint has actually gone into the
valleys . . . or the cracks.”
Bellizzi pointed to
“alligator” cracks on the photographs as indicative of an earlier
stage of pavement deterioration. His inference that the alligator cracks were
there when the crosswalk was installed and that the road surface should have
been smoothed out at the time is speculative, particularly in view of the
project records contained in claimant’s exhibit 15 that the cleaning and
preparation of the pavement surface met the required specifications (see below).
In addition, the alligator cracks in the photographs did not create a height
differential on the pavement.
The testimony of Trevor Williams, a civil
engineer employed by DOT, who was an engineer-in-charge on contract D257135, was
presented via his deposition taken July 17, 2003 (cl exh 26). Mr. Williams
explained that his primary responsibility was to ensure that the contractor
perform the work according to the contract plans (cl exh 26, p.23). He
testified that he, or a State inspector, would “look and see if the road
condition, the state of the road, is smooth enough to put” down the
crosswalk. Records from the project for the Anderson Place intersection
indicate that the “cleaning and preparation of pavement surface
lines” was done in accordance with contract plan and specifications. The
same records also provide that 1,200 linear feet of white preformed
reflectorized pavement stripes were installed in accordance with the plans and
specifications. (Cl exh 15, pp. 6 & 16 of DOT’s memo to Commander
I conclude therefore that when the crosswalk was put
down, the pavement surface was sufficiently smooth. At the latest, as noted,
this was November 24, 1997 and possibly earlier. Mr. Mastroianni fell on August
30 of the following year. A winter had intervened; the following exchange
occurred on Mr. Bellizzi’s cross-examination:
Q . . . [A]fter the
winter season . . . isn’t it common that there are substantial potholes or
problems following [the] winter season?
A. Yes, sure.
Q . . . basic
wear and tear coupled with water, salt, sand, snow, ice, plowing, freezing and
thawing cycles that’s something that would affect asphalt or pavement,
A. It would affect it, yes.
To recover in negligence, an individual who trips on a pavement
defect must prove that such was a dangerous condition and that (if defendant did
not create it) defendant knew or should have known of it and had sufficient time
to discover and remedy the condition. Gordon v American Museum of
, 67 NY2d 836, 501 NYS2d 646 (1986); Bernard v Waldbaum,
, 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996).
Here there were no
reports of prior similar accidents in that area, no complaints about the road
surface and no documentation thereof - - in sum, there was no actual notice.
Constructive notice in this matter must be evaluated in view of the unusual
circumstance that we do not know what the offending defect was prior to the date
of claimant’s accident.
The duty to maintain premises is a
non-delegable one with respect to areas 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 that regard, it is assumed for our purposes that any acts or
omissions of a contractor working under Contract D257135 are to be imputed to
the defendant State of New York.
With that said, insufficient evidence has
been supplied to implicate constructive notice.
For example, claimant did not submit a project log or daily report to show that
after the traffic light and crosswalk were put in place in 1997, any employee of
the State or its contractor was at the Anderson Place site between then and the
date of the accident.
As to the relationship between the State and the
Town of Huntington, claimant contends that irrespective of the existence of any
ongoing State construction project, the State bears responsibility for any
crosswalk adjacent to an intersection with a state highway. Vehicle and Traffic
Law §1621(a) provides that the State, by order, rule or regulation,
“may” within 100 feet of a state highway establish certain traffic
regulations, including regulating “the crossing of any roadway by
pedestrians” (¶5 of §1621(a)). Even had the State assumed such
Mr. Mastroianni has not satisfied his burden that the defendant was thereby on
constructive notice. Among other things, we have seen that Contract D257135
covered 26 intersections in two counties: the State’s duty to inspect and
if necessary, repave or repair under such circumstances was not developed by
claimant in his case.
In view of the foregoing, the claim of
Anthony Mastroianni (no. 101566) is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.
August 3, 2005
HON. ALAN C. MARIN
Judge of the Court of Claims
The Town of Huntington.
Mr. Bellizzi testified that he had
visited the site, but the date was unclear. Claimant in his post-trial brief
stated that the testimony of his expert engineer was based on “his review
of photographs . . . documents . . . tax maps and property surveys and
deposition testimony” [of Messrs. Lechner and Williams].
Claimant’s exhibit 8 does not
alter my conclusion. Dated December 1, 1998, this exhibit is a memo stating
that “punch list” work has been completed on nine traffic signals at
“various intersections throughout Nassau and Suffolk counties,”
including the one at Anderson Place. The memo does not indicate when any
employee was at such intersection, and if so, what was done.
Claimant so contends; see his exhibit 25
and consider the testimony of surveyor Paul Werler and the deposition of Mr.