New York State Court of Claims

New York State Court of Claims

PAGE v. THE STATE OF NEW YORK, #2005-028-002, Claim No. 105793


Case Information

MARGO PAGE The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Gwendolyn HatcherAssistant Attorney General
Third-party defendant's attorney:

Signature date:
February 2, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings this claim alleging the negligence of the State of New York in the maintenance of a sidewalk/plaza area outside of one of its office buildings, which negligence

caused Claimant to fall and sustain injury on February 21, 2001. This decision follows the trial on the issue of liability.

At all times relevant, Margo Page (Claimant), was a thirty-seven-year-old student enrolled in the State University of New York (SUNY) Educational Opportunity Center (EOC) Graduate Equivalency Diploma (GED) program. That program required Claimant to attend classes at the Adam Clayton Powell, Jr., State Office Building located at 163 West 125th Street, New York, New York. For approximately six months prior to the accident, Claimant was attending classes five days a week from 9 a.m. to 1 p.m. Claimant testified that given her daily class schedule she was familiar with the State Office Building and the surrounding exterior sidewalk and plaza area. She stated that there was an entrance/exit on Seventh Avenue, also known as Adam Clayton Powell, Jr., Blvd., as well as an entrance/exit on 125th Street. She described the exterior building as having a sidewalk and plaza area immediately outside of the Seventh Avenue exit. Along the front of the building, there was a metal grating with which she was familiar having traversed this area several times before this accident.

On February 21, 2001, the day of the accident, Claimant testified that following her final class she expected to meet her husband who was to drive her home that day. After classes, Claimant exited at the Seventh Avenue side of the building at the direction of the building security officers. She exited from the door at the far right as she moved from the lobby to go outside. She walked from the building across the sidewalk over and beyond the metal grating, at which time she heard her child call to her and looked to the right where she saw her husband and child waiting for her. She then turned to the right and began to walk toward her husband and in so doing walked upon the metal grate. After taking approximately six or seven steps upon the grating, she felt her right foot press downward and the grate tilted upward causing her foot to fall into the hole or trench which was covered by the metal grating. She lost her balance, fell backwards striking her lower back on the ground and her head against the marble wall of the State Office Building. She remained on the scene approximately one-half hour after which time she was removed from the scene by an ambulance. She testified that she had no difficulty traversing the area and specifically the metal grate prior to this date. She also testified that there were no warning signs or any cones or barriers or other safety devices around the grating area where she fell. She provided several photographs of the scene of the accident. The dates on which the photographs were taken were never divulged by any witnesses. However, the photographs clearly depict a number of bright orange traffic cones.[1]

Claimant's next witness was Will Brown, Jr., an employee of the New York State Office of General Services and the Building and Facility Manager (BFM) of the Adam Clayton Powell, Jr., State Office Building. Brown testified that the building is owned by the State of New York. Brown's duties as BFM included the care, custody, control, management of the facilities, including the maintenance of the building and surrounding property. He described the Adam Clayton Powell, Jr., State Office Building as a nineteen-story building with 378,000 square feet of office space with a large open plaza area with plantings contiguous to the entrance on the southern side of the building located on 125th Street, and on the western side of the building located on Adam Clayton Powell, Jr., Blvd, also known as Seventh Avenue. He acknowledged that SUNY is a tenant in the building with offices on the upper floors.

Brown described in detail the subject metal grate. First, he described that around the entire perimeter of the building the grate is flush with the sidewalk. The grate, made of iron and approximately 12 to 14 inches wide and three fourths of an inch in thickness, covers a drainage trench which he estimated to be 10 inches in depth and 12 to 14 inches in width. The purpose of the trench is to prevent water from entering the building lobby. The grate is seated upon a frame that is lower than the surface of the concrete sidewalk which permits the grate to be flush with the sidewalk surface. Finally, Brown testified that the grate on each side of the building meets at right angles with the corresponding side.

Brown testified that routine inspections of the plaza area, including the at-issue grating, are conducted by his staff and that reports are prepared[2]. Brown testified that a decision was made prior to February 21, 2001 to replace the subject grate after an inspection had been completed. While he could not specifically recall why the decision had been made, he acknowledged that he made the decision, "due to a perceived need to replace the grate" or as "preventative maintenance". Over objection[3], Claimant, through Brown, introduced three business records which reflected the purchase process, beginning in October, 2000, for 102 feet of replacement grating for the 125th Street (south side) of the State Office Building (see Exhibit 4 [purchase requisition]), a December 26, 2000 purchase order (Exhibit 5) and a January 16, 2001 change order (Exhibit 6). Brown testified the purchase requisition (Exhibit 4) was sent to the finance department requesting approval of funds to purchase 102 feet of iron grate to replace the subject grating and the purchase order (Exhibit 5) provided authority to purchase the subject replacement grating.

Brown testified that the several cones which are depicted in the photographic evidence were present at the time of the accident. He stated that these cones were placed at the site at or about the time of the submission of the purchase requisition which was in October of 2000. While he had no independent recollection, he believed that these cones remained placed at the site until the replacement grates were installed sometime after the accident.[4] Brown testified that while he couldn't be sure, he believes that the "cones" were placed to prevent pedestrians from walking on the iron grate to prevent an accident. He did recall inspecting the area shortly after the cones were placed. At that time, he noticed that some of the concrete near the grate was in disrepair. Also, the "flushness" of the grate and sidewalk was questionable. He acknowledged that inspection of the grate must have been made prior to the submission of the purchase requisition (Claimant's Exhibit No. 4). Finally, he was asked to review the incident report (Claimant's Exhibit No. 2) and the accident/investigation report (Claimant's Exhibit No. 3). Both of these exhibits were completed by State employees and were dated February 21, 2001. He acknowledged that both were detailed recitations of facts gleaned from an investigation conducted after the accident. He further acknowledged that neither of these investigation reports made any mention of the orange cones which were depicted in the several photographs of the scene of the accident admitted into evidence.

Claimant also called Karen Berry to testify on her behalf. Berry was employed by SUNY /Manhattan Community College as the registrar for the EOC for over eight years prior to the happening of this accident. Berry worked at the Adam Clayton Powell, Jr., Building

and testified she was very familiar with the facility and surrounding environs. Her duties as registrar included maintaining student records, supervising the registration process, interviewing students and providing education for students among other matters. Berry acknowledged that she recognized the Claimant and that on the day of the accident she saw her twice. Berry last saw the Claimant prior to the accident as Claimant entered the elevator on the 15th floor between 12 noon and 1 p.m. Berry took a separate elevator car to the lobby shortly thereafter. She testified that as she walked through the lobby toward the Seventh Avenue doors she saw a crowd outside the building and heard someone call for help. From her vantage point inside the lobby and looking through the glass paneled doors, Berry saw Claimant lying on her side "her foot was down, sort of in the grating"[5]. Although Claimant's foot was out of sight, Berry stated that she was able to see her leg which was in a downward foot position. Using a photograph of the accident scene (Exhibit 1A), Berry pointed to the same location as did the Claimant to indicate where Claimant's foot was in the grating. Berry stated that there were no cones placed at the scene on the day of the accident or any other day prior thereto. Berry testified that for a period of approximately two to three years prior to the date of the accident the grating located at the scene of the accident was "deteriorated and shaky". When asked by the Court to describe what she meant, Berry said the grating moved when you walked upon it.

Defendant called no witnesses and produced no evidence upon its direct case.

The State as landowner is subject to the same rules governing private landowners (Preston v State of New York, 59 NY2d 997). In that role, the State has a duty to use reasonable care in maintaining its property in a reasonably safe condition in view of all the circumstances (Basso v Miller, 40 NY2d 233; Preston v State of New York, supra). Such a duty, however, is not without limit. The State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850; Clairmont v State of New York, 277 AD2d 767; Condon v State of New York, 193 AD2d 874). The State also has a duty to warn the public of any latent dangers that are not readily apparent (see Walter v State of New York, 185 AD2d 536). If a hazard or dangerous condition is open and obvious, the owner of the property has no duty to warn a visitor of the danger (see Tagle v Jakob, 97 NY2d 165; Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69). However, the duty to maintain premises in a reasonably safe condition is distinct from the duty to warn, and liability may be premised on a breach of the duty to maintain reasonably safe conditions even where the obviousness of the risk negates any duty to warn (see Cohen v Shopwell,Inc., 309 AD2d 560, 562). This reaffirmation of the distinction between these legal theories is premised upon the realization that to hold otherwise would "permit a landowner to persistently ignore an extremely hazardous condition -- regardless of how foreseeable it might be that injuries will result from such condition -- simply by virtue of the fact that it is obvious and apparent to onlookers"

(Westbrook v WR Activities-Cabrera Mkts., supra, 5 AD3d at 73)[6].

Negligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of Claimant to establish by competent evidence that the injury complained of was caused by reason of some breach of duty by the State (see Mochen v State of New York, 57 AD2d 719). In order to prevail, Claimant must establish: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of Claimant's accident; and that Claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955).

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that Claimant has established by a preponderance of the credible evidence that she was caused to fall solely as a result of the negligence of the Defendant. The Court finds the condition of the subject grate was a foreseeably dangerous condition and that the Defendant had actual notice of the defect as early as October 2000 when it undertook the process to repair the grate. This finding is also supported by the testimony of State employee Karen Berry, who testified that the grate was deteriorated and "shaky" prior to the happening of the accident. This is not a trivial defect case (see Trincere v County of Suffolk, 90 NY2d 976). Claimant's fall did not occur because of a height differential between the sidewalk and the grate. Rather, the fall occurred when the Claimant's foot came in contact with a metal grating which was in disrepair and which moved when stepped upon, causing her to lose her balance and to fall to the ground and injure herself. The nature of this defect was not readily observable by the Claimant. The Court does not credit BFM Brown's testimony that adequate warning cones were present at the accident site on the day of the accident and for many months prior thereto. Thus, the Court finds Defendant failed both in its duty to maintain the premises in a reasonably safe condition and its duty to warn of a dangerous condition of which it was aware.

Accordingly, the Court finds the Defendant was negligent and 100% liable for the injuries sustained by the Claimant on February 21, 2001.

All motions made at the time of trial, not heretofore determined, are deemed denied. The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for a trial on the issue of damages as soon as practicable.

The parties are directed to appear at a conference on March 9, 2005 at 10:00 a.m., in Chambers, 26 Broadway, New York, New York.
Let interlocutory judgment be entered accordingly.

February 2, 2005
Albany, New York

Judge of the Court of Claims

  1. [1]Over objection the Court admitted certain photographs of the scene which included these orange cones. These photographs were included upon the condition that the Court would not consider the cones to reflect any post-accident alteration made by the Defendant State of New York.
  2. [2]There were no reports offered regarding any inspection of the subject grate.
  3. [3]Defense counsel objected to the introduction of the three business records pertaining to the requisition and purchase of the replacement grating. The basis of the objection was that each of these business orders referred to post-accident alteration. The objection was overruled since clearly these records reflected prior notice of the Defendant of a need to replace the subject grating. In view of State employee Brown's failure to recall why the grating was to be replaced other than it was part of a preventative maintenance program, it fair comment by the Claimant to ask the Court to infer that the replacement was to rectify the very condition which caused the subject accident.
  4. [4]His testimony would appear to be contrary to the prior objections made by defense counsel concerning the traffic cones depicted in the photographs. According to State employee, Brown, the cones do not represent post-accident alteration, rather the cones represent prior accident warning.
[5] Unless otherwise indicated, all quotations are from the Court's notes of the proceedings.
[6] Each Department of the Appellate Division has reaffirmed the distinct existence of a duty to maintain (see Cohen v Shopwell, Inc., 309 AD2d 560 [First Department]; Cupo v Karfunkel, 1 AD3d 48 [Second Department]; MacDonald v City of Schenectady, 308 AD2d 125 [Third Department] and Pelow v Tri-Main Dev., 303 AD2d 940 [Fourth Department]).