ROSENTHAL v. THE STATE OF NEW YORK, #2005-019-018, Claim No. 105222
The court apportioned liability 75% to the State and 25% to claimant for
injuries, if any, resulting from claimant's slip and fall on missing and broken
BERT ROSENTHAL and HONEY S. ROSENTHAL
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
NAPOLI, KAISER & BERN, LLPBY: Peter L. Benza, Esq., of counsel
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
August 23, 2005
See also (multicaptioned
Bert Rosenthal, alleges he slipped and fell when he stepped onto a missing and
broken curb approximately one foot in length while exiting from a shuttle van at
Binghamton University in Vestal, New York on August 23, 2001. The trial of this
claim was held in the Binghamton District on March 7, 2005. The parties
requested and were granted additional time to submit post-trial memoranda. This
Decision addresses the issue of liability only.
On August 22, 2001, claimant who was 55 years old at the time had traveled from
Brooklyn, New York with his wife, Honey S. Rosenthal, and his two daughters, the
oldest of which, Whitney, was starting her freshman year at Binghamton
University. On August 23, 2001, the family went to the campus to help the
daughter move into her dormitory in the Chenango area in the Newing Dormitory.
Claimant testified that the University had previously mailed a packet of
information regarding the check-in procedure, including parking instructions.
Claimant stated that there was a high volume of traffic with students,
accompanied by their families and friends, checking into the dormitories that
day. Claimant explained that he was allowed to pull up to an unloading location
near the dormitory, but was instructed to stay with his car at all times while
the car was unloaded. Claimant and his youngest daughter left his wife and
oldest daughter at the dormitory while he went to pick up a computer and then
returned to campus and again drove up the unloading location near the dormitory
to unload the computer. Thereafter, claimant was instructed to move his car to
a specific parking area, some distance away, and was told that a van would
return him to the dormitory. Thereafter, claimant drove his vehicle to the
designated parking lot some distance away from the dormitory.
Claimant continued to follow prior instructions by boarding a
University-provided shuttle van to return to the dormitory. Claimant described
the van as a Dodge 12-passenger van with a running board. Claimant testified
that the driver of the van announced the various stops to his passengers asking
at each stop along the way if anyone was getting off. When the van stopped at a
point located across from his daughter's dormitory, claimant told the driver
that he would be getting off the van. The driver pulled up parallel to a
sidewalk with a curb, approximately six inches from the curb itself. (Trial
Transcript, pp 54-55).
Claimant testified that he opened the side door to exit the van and "[s]tepped
on the running board, and I stepped down onto what I thought would be the curb,
and there was - - I just kept going down and I went into this tremendous
crevice. My leg - - my ankle buckled, turned, I fell over and heard a snap."
(TT, pp 15-16). On cross-examination, claimant testified that he stepped onto
the running board with his left foot and stepped onto the missing curb with his
right foot. Claimant fell and broke his right ankle and tore ligaments as a
result of his fall. Claimant testified that the van driver did not come to his
aid, but he ultimately managed to ambulate to his daughter's dormitory at which
point an ambulance was called for assistance.
Claimant next called Michael Kravitz, a licensed engineer in New York, New
Jersey and New Hampshire, as an expert in the field of engineering. Mr. Kravitz
testified that the portion of the curb that was missing was "[a]pproximately
three inches deep by about at least 12 to 14 inches across at its widest point."
(TT, p 79). Mr. Kravitz also testified that he was able to determine that the
curb had been in this condition for approximately a year and a half since there
was asphalt laid in that time frame "[e]ncroaching over the edge of the
depression which means that this depression was already there when this asphalt
(TT, pp 80-81 & 83). Finally, Mr. Kravitz testified that "[t]here may have
be some perception problems looking straight down" at the curb while exiting
from a van, as compared to walking along the street surface. (TT, p
Claimant's next witness was the driver of the van, Vernon M. Tyrell. Mr.
Tyrell testified that he had been employed by Binghamton University for 19 years
in maintenance doing primarily masonry and painting work. Mr. Tyrell stated
that on the day of this accident he was asked to drive a shuttle van which he
had done once or twice before, although he received no training on the same.
Mr. Tyrell testified that his supervisor, John Masi, told him to drive a van on
this day, but the route was given to him by the University grounds supervisor,
Stephen Gowe. Further, Mr. Tyrell indicated that he dropped people off at two
predetermined spots, as well as at undesignated stops if it was more convenient.
(TT, p 123). The witness indicated that the Newing area dormitories were not
one of his designated stops, but that there was a parking lot nearby that he
used when requested to do so. Contrary to claimant's testimony, Mr. Tyrell
testified that claimant requested to be dropped off at this particular location
and that he did not announce this stop. (TT, p 135).
Finally, claimant called Stephen Gowe as a witness, the grounds supervisor at
Binghamton University for the past four years whose duties included maintaining
the grounds. Mr. Gowe testified that the asphalt overhanging this curb was
present for at least a year and a half prior to this accident. (TT, pp
On its case, the State called Danielle Besso, an engineer employed by the
State's Department of Transportation. Ms. Besso testified that this curb was
not designed as a step or located within any designated walkway system and, as
such, opined that the depression in the curb did not constitute a dangerous
condition. On cross-examination, Ms. Besso conceded that this curb presented
more of a tripping hazard to someone left off at the curb from a van than to
someone walking along the area. (TT, p 206).
Finally, a brief review of the prior procedural and motion history of this case
is warranted. Claimant filed an Amended Claim with the Clerk of the Court on
November 19, 2001. The State filed an Amended Answer with the Clerk of the
Court on December 17, 2001. Claimant then moved for a change of venue which was
denied by this court. (
Rosenthal v State of New York
, Ct Cl, March 14, 2002, Lebous, J., Claim
No. 105222, Motion No. M-64518 [UID No.
A trial of this matter was
originally scheduled for June 26, 2003. Due to claimant's failure to appear and
be ready to proceed on said date, this court dismissed Claim No. 105222.
(Rosenthal v State of New York
, Ct Cl, July 14, 2003, Lebous, J., Claim
No. 105222). Thereafter, claimant moved for an order to vacate said Decision
and to restore this case to the trial calendar pursuant to 22 NYCRR 206.15. For
reasons not pertinent here, this court determined that the dismissal should be
vacated and the case restored to the court's calendar, but directed that
claimant's counsel's conduct warranted the scheduling of a hearing pursuant to
22 NYCRR Part 130 in order to determine whether the imposition of sanctions
and/or costs were appropriate. (Rosenthal v State of New York
, Ct Cl,
March 2, 2004, Lebous, J., Claim No. 105222, Motion No. M-67867 [UID No.
2004-019-515]). A hearing relative to sanctions and/or costs was never
scheduled. On January 20, 2004, claimant filed an identical claim to the
instant claim which was designated as Claim No. 108794 by the Clerk of the
Finally, the trial of Claim No. 105222
proceeded as scheduled on March 7, 2005 which is the subject of this
It is well-settled that the State has a nondelegable duty to adequately design,
construct and maintain its roadways in a reasonably safe condition. (
Weiss v Fote
, 7 NY2d 579, 584; Friedman v State of New York
NY2d 271). This duty extends to conditions adjacent to the roadway. (Stiuso
v City of New York
, 87 NY2d 889). The State, however, is not an insurer of
the safety of its roadways and the mere happening of an accident on State
property does not render the State liable. (Tomassi v Town of Union
NY2d 91, 97; Brooks v New York State Thruway Auth
., 73 AD2d 767,
51 NY2d 892).
In order to establish liability in a slip and fall case, the burden is on
claimant to establish by a preponderance of the credible evidence that a
dangerous condition existed; that the State either created said dangerous
condition or had actual or constructive notice thereof and failed to correct or
warn within a reasonable time; and that said dangerous condition was a proximate
cause of the accident. (
Gordon v American Museum of Natural History
, 67 NY2d 836; Dapp v
, 240 AD2d 918).
In this court's view, the missing part of this curb measuring approximately
three inches deep by at least 12 to 14 inches across at its widest point
constitutes a dangerous condition. The State's argument that this depression
constituted a trivial defect is without merit.
The next question presented is whether the State created this dangerous
condition which would constitute actual notice. (
Lewis v Metropolitan Transp. Auth
., 99 AD2d 246, 249, affd
670). Claimant argues that both experts, as well as the grounds supervisor,
agreed that this chunk of curb was probably removed by a snowplow. (TT, pp 80,
186, & 196). The State offered nothing to contradict this testimony. In
view of the foregoing, the court finds that the State created this dangerous
That having been said, however, even if the court had found the State did not
create this dangerous condition, the court would have found the State had actual
notice through other means, as well as constructive notice of the same. With
respect to actual notice, Mr. Gowe testified that he must have seen the curb
prior to the date of this accident. (TT, p 173). With respect to constructive
notice, any "[d]efect must be visible and apparent and it must exist for a
sufficient length of time prior to the accident to permit...[a defendant] to
discover and remedy it [citations omitted]." (
, 67 NY2d at 837). Based on the testimony set forth hereinabove,
it is undisputed that this condition existed for at least a year and a half
based on the timing of the last asphalt work and, as such, the court finds that
the State had constructive notice of this dangerous
Finally, based upon the credible evidence submitted at trial there can be no
dispute but that this dangerous condition was a proximate cause of claimant's
fall and alleged injuries.
Next, the State argues that a person is bound to see that which by the proper
use of the senses should have been seen and, as such, claimant bears some
responsibility for his own injuries. (
MacDonald v City of Schenectady
, 308 AD2d 125; Avila v Mellen
AD2d 408). However, both experts testified that there would be some perception
problems for claimant in stepping down from the van onto this area. (TT, pp 87
& 206). Based upon the proof at trial, the court finds that claimant had
limited visibility given the nature of the van's running board along the side of
the road in relation to the curb and also finds that claimant had no input into
the discharge point selected by the driver. In short, claimant was put in
direct contact with this defective curb by the State's actions and through no
choice or action of his own. That having been said, however, claimant should
bear some but not equal responsibility for his own injury. Based upon the
foregoing, the court finds liability should be apportioned 75% to the State and
25% to claimant for the injuries, if any, claimant sustained as a result the
accident of August 23, 2001.
Finally, the court notes that the hearing on sanctions previously ordered
pursuant to this court's prior Decision & Order has not been held to date
due to the court's schedule. (
, Ct Cl, March 2, 2004, Lebous, J., Claim No. 105222, Motion No.
M-67867 [UID No. 2004-019-515]). Accordingly, the court directs that the
hearing on sanctions and/or costs be held simultaneously with the hearing on
All motions on which the court previously reserved or which were not previously
determined at trial, are hereby denied.
The court will set this matter down for trial on the issue of damages and a
hearing on sanctions and/or costs as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
Binghamton, New York
HON. FERRIS D. LEBOUS
Judge of the Court
The term "claimant" will refer solely to Bert
Rosenthal since the claim of Honey S. Rosenthal is derivative in nature.
The Trial Transcript is comprised of one
volume only and will hereinafter be referred to as "TT".
Mr. Kravitz conceded that the time estimate is
based on the deposition testimony of Stephen Gowe, the University grounds
supervisor, that the asphalt would have been poured approximately a year and a
half prior to this accident. (TT, pp 83 & 94).
Selected unreported decisions from the Court
of Claims are available via the Internet at
Claim No. 108794 is identical to the instant
claim, Claim No. 105222. Accordingly, the court will dismiss Claim No. 108794
as a duplicative claim.