New York State Court of Claims

New York State Court of Claims
STEVENS v. THE STATE OF NEW YORK, # 2005-030-018, Claim No. 106045

Synopsis

Case information

UID: 2005-030-018
Claimant(s): SANDRA STEVENS
Claimant short name: STEVENS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 106045
Motion number(s):
Cross-motion number(s):
Judge: THOMAS H. SCUCCIMARRA
Claimant's attorney: HERBERT WILLIAM FISCHMAN, P.C.
Defendant's attorney: HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERAL
BY: DIAN KERR McCULLOUGH, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:
Signature date: July 8, 2005
City: White Plains
Comments:
Official citation:
Appellate results: Reversed 47 AD3d 624
See also (multicaptioned case)

Decision

Sandra Stevens alleges in Claim Number 106045 that on September 18, 2001, she fell in a pothole on Yonkers Avenue, in the City of Yonkers, New York, resulting in her personal injury, because of the Defendant's failure to maintain the roadway. Trial of the matter was held on January 26 and 27, 2005. This decision relates solely to the issue of liability.

Findings of Fact

Claimant testified that on September 18, 2001 at approximately 5:00 p.m. she parked her car at a meter in front of 783 Yonkers Avenue in Yonkers, New York. Her daughter MaryAnne sat in the front passenger seat of the Jeep, and her granddaughter Victoria sat in a car seat behind MaryAnne on the passenger side. It was a dry and clear day. After parking the Jeep, Claimant got out on the driver's side, walked in front of the car, looking at the street pavement below as well as ahead, and then stepped up the curb to walk back to the passenger side of the car in order to take her granddaughter out of the car seat. Claimant had a shoulder bag on her shoulder. Picking up her granddaughter in her arms, she headed to the back of the car to retrieve the stroller. Victoria weighed between 20 - 25 pounds and her head reached Claimant's chin as Claimant held her. She was not wriggling or squirming, and did not obstruct Claimant's view as she walked.

The car was parked so that the front of it was at a meter on the sidewalk, and the back of the car was adjacent to a telephone pole on the sidewalk. [See Exhibits 1, 2 and 9]. In order to access the trunk of the car, Claimant had to walk past the telephone pole. As she stepped off the curb, the heel of her " . . . foot got stuck . . . [it] was jammed . . . [she] just fell forward."(1) She was wearing thick rubber soled, leather sneakers. She said that she couldn't get her balance as she started to fall forward, Victoria "flew" out of her arms, and Claimant started to "twist" in order to regain her balance. Her "whole body turned and . . . [she] fell on her back." As Claimant lifted herself by her elbows, she saw a pothole in front of her feet, indeed, her "feet were practically still in it." [T-53]. She could not say how big it was, but it was "wide" and "deep." [id.]. She could not say whether it was the same depth all the way, or deeper or shallower in one spot, but "it was wide and it tapered off at the end of it." [T-53-54]. She said she " . . . was really kind of in shock." [T-54].

When a police officer arrived she was still in the same position, and had not moved away from the pothole. After he called an ambulance, the officer spoke with Claimant, and she pointed out the pothole. She saw the officer go look at the pothole.

At trial, she identified two close-up photographs as " . . . the pothole that caused the accident." [T-56; Exhibits 3 and 4]. Viewing these photographs, Claimant was able to explain that the heel of her left foot "got wedged" in a portion of the hole of some indeterminate length, width, and depth, immediately adjacent to the curb, with a depth sufficient to hold water as shown in the photographs. [T-59]. The photographs were taken by family members who had not been present on the day of her accident, but who had been told that Claimant had fallen at the meter in front of the beauty parlor. The photographs are taken so close to the pothole, that there are no identifying features that the Court could discern, and no frame of reference - such as a store front, telephone pole, or parking meter - or testimony by the person who took the photograph, to place the pothole in context. The Claimant did not measure the pothole. The only indication of scale would be by reference to the height of the curb, or the length of the curb block itself which in the photograph shows only one indentation, but no measurements were taken or testified to by Claimant.

On cross-examination, Claimant confirmed that her granddaughter weighed approximately 20-25 pounds, and that Claimant held her in both arms. There was a lot of activity around her, with people crossing the street and passing behind her, as well as vehicular traffic. She said she could see her feet as she walked around the car, and looked around and ahead and down as she walked. She said she never saw the pothole as she stepped down off the curb.

Claimant's daughter MaryAnne Stevens, a passenger in the Jeep that day, also testified, essentially confirming the sequence of events described by Claimant. She said after parking in front of the hair salon near Morley's, the fruit and vegetable store that was their destination, she exited the car first, and saw her mother exit the vehicle after her. She saw Claimant walk around the car as described, and although she did not see Claimant step into the pothole, she saw her foot in it immediately afterwards, and saw that it was stuck. Ms. Stevens observed her mother falling on her back, saw her niece falling out of her mother's arms, heard her mother's " . . . bones cracking" [T-77], and saw Claimant on her back on the street pavement with her head pointing toward the street. [T-78]. Ms. Stevens also identified the close-up photographs of a pothole [Exhibits 3 and 4] as being the pothole in which she saw her mother's foot although she, too, was not present when the photographs were taken. [T-79]. She recalled that the dimensions of the pothole were " . . . approximately a foot and a half [wide and] . . . approximately one foot [from the curb to the edge of the hole in the street]." [T-105]. She estimated that the hole was "about five inches" deep. [id.].

On cross-examination she conceded that she did not measure the pothole with a ruler but rather based her estimates upon using her eyes.

Joseph S. Champagne, who described himself as a "consulting engineer in the transportation, traffic engineering, pedestrian planning and design field" [T-108], testified as Claimant's expert. He was retained by Claimant's attorney in January, 2002 and did an on-site investigation on April 24, 2002. [T-114]. The area in front of 783 Yonkers Avenue had been paved prior to Mr. Champagne's inspection, thus he did not locate the pothole described as being approximately twenty inches wide and four inches deep, and identified as the pothole causing claimant's fall, in a contemporaneous police report rendered by the Yonkers Police Department [Exhibit 10]. He described the surface of the road generally as concrete with reinforcement bars - a rigid pavement - that can last 40 to 50 years, with an overlay of asphalt concrete that lasts approximately 20 years. Used as a surface because of its flexibility and the provision of friction for a driving surface, the asphalt nonetheless starts to dry out and deteriorates more rapidly on those portions of a road over which not as much traffic passes, such as a parking lane. He observed a great deal of "breaking up of the asphalt overlay . . . all the way down to the cement concrete base . . . .and . . . a separation between the granite curb and the cement concrete pavement. And, it was probably done that way because the curb is put in . . . separately from the cement concrete pavement." [T-124]. He explained that the "reveal" is the vertical face of a curb, from the top of the curb to the street pavement. He noted a space on the surface of the street between the reveal and the asphalt pavement of approximately 4 to 5 inches, caused by, he surmised, the use of mechanical sweepers, water seepage, and snowplows. Mr. Champagne testified that the apparent pothole area was "filled in" at the time of his inspection, although, again, he did not know the precise pothole that caused Claimant's fall.

Exhibits 1, 2, 7, 9 and 20 are photographs taken by Mr. Champagne on April 24, 2002. Exhibits 18 and 19 are blowups of photographs taken by the witness on the same day. Mr. Champagne observed that the pavement area directly in front of the meter, where Mrs. Stevens would presumably have walked in front of her car after she exited, was "flush with the curb" [T-150] when he took a photograph of the entire parking spot on April 24, 2002. [Exhibit 6]. He stated that in his own experience, as part of the "human factors," of design in traffic engineering, a person who had walked over a smooth pavement when passing in front of her parked car would expect that the same condition would exist in the curb and pavement area to the back of the car. [T-152-153]. Absent some warning, the pedestrian would expect the surface seen when she stepped down to have been the same as it had been when she stepped up. [T-154].

Based upon the witness's review of deposition testimony describing inspection procedures, Mr. Champagne said that although there were routine inspections of Yonkers Avenue by City and State officials, they were accomplished through what he termed "windshield survey." The inspectors would drive in cars or trucks and visually observe conditions, but Mr. Champagne opined that they would not be able to see the curb line portion because most of the time there were cars parked along the curb. [T-155]. He opined that the condition of the pavement near the area along the curb shown in the photographs taken by Claimant's family was a defective condition that had been in existence for "four or five years." [T-157]. This opinion was based upon " . . . the shape of the holes, the fact that the edges were no longer sharp but rolled over. A lot of debris in the holes and around." [T-157]. He said that another hazard was the 3-inch space between the curb and the cement concrete pavement and the depth of that space he measured as "about 3 inches." [T-158]. Either a hot or a cold patch - depending on the time of year - would have readily repaired the defect he opined. These would be temporary measures, however, and would require follow-up for more permanent repair. Without proper adhesion, a single layer of asphalt concrete - depending on weather and traffic conditions - would not last very long. As the witness understood it, the inspection of Yonkers Avenue was inadequate because it was not conducted from curb to curb but rather concentrated from the visible area from the travel lanes to perhaps part of the parking lanes. [T-160].

The witness reviewed inspection reports jointly prepared by the City of Yonkers and the New York State Department of Transportation. [Exhibit 14]. From a report dated April 17, 1997 concerning the category of "pavement" containing the notation that "utility repairs" along Yonkers Avenue were "poorly constructed" he concluded that " . . . you have potholes or utility cuts [that] are not holding up . . . they're cracking off along the edges." [T-163; Exhibit 14]. This same notation, the witness stated, is continued on reports dated June 1998 through November 1998; and December 1998 to May 1999. [T-166, Exhibit 14].

The witness also found it meaningful that the contract specifications for road paving work did not call for tapering downward toward the curb reveal, or tapering for uncompleted work at the end of a day - a different procedure. [Exhibit A]. He said when resurfacing a road with asphalt it is generally resurfaced at a uniform thickness, all the way up to the curb. When this is done numerous times, eventually you lose the curb reveal, unless prior to the resurfacing one or two layers are milled off so that the new layer of asphalt is at the same height vis-à-vis the curb reveal as it was previously. This also avoids having to raise manhole covers or other interruptions in the road surface.

On cross-examination he conceded that he did not know the exact pothole Claimant fell in, had consequently only measured the depth of other potholes, and that he had no actual knowledge concerning how long the pothole in question would have been in existence without patching, except by his presumptions concerning the surrounding areas. He confirmed that in his opinion Claimant had not contributed to her accident at all, and had no duty to observe her path because of the human factor and expectation that having stepped on a smooth surface when she first got out of her car, the road would continue to be smooth when she descended the curb on the other side of the car with her granddaughter held in her arms. [T- 201-202].

Suzanne Gambardella, employed by the City of Yonkers for approximately 15 years, testified concerning her job as a "constituent service representative." She said her job involved hearing - usually by telephone - all complaints from citizens, processing work orders, and referring complaints or work orders to the proper departments. There had been no complaints about the area in front of 783 Yonkers Avenue prior to September 18, 2001.

Douglas Degree, an Environmental Maintenance worker employed by the City of Yonkers for over seven years, also testified. In September 2001 he had been employed in the blacktop division, and was the acting working supervisor. The division had two different approaches to road repairs. For the most part, generally the day before, they would receive work orders, by FAX, to fill potholes, and would go out and fill them. On other occasions, when there were no work orders to complete, " . . . the guys would ride around and I would ride around and anything we saw, we would . . . fix." [T-253]. He said they would take material off the back of the truck with a shovel, fill in the pothole, and tamp it down. The area near 783 Yonkers Avenue was part of the area where his team would fill potholes.

On cross-examination, Mr. Degree confirmed that his work hours were 7:00 a.m. to 3:00 p.m., that he would frequently not be able to see the curb area of Yonkers Avenue because of parked cars, and that sometimes they would not stop to fix potholes if they were on their way to another job. He recalled filling a pothole near 783 Yonkers Avenue on September 26, 2001.

Thomas Mason, an Assistant Resident Engineer for the New York State Department of Transportation, employed by DOT since 1969, also testified. He said that his group was responsible for the operation and maintenance of the New York State highways in the southern half of Westchester County, including Yonkers Avenue. Over 850 "lane miles" of highways are within his purview. [T-263]. Yonkers Avenue is in the category of an arterial highway, set up when New York State took over and rebuilt certain urban streets, turning it into a "major thoroughfare." [T-264; see Exhibit 12]. Initially, the State entered into agreements with the respective cities whereby day-to-day maintenance would be performed by the City. [see Exhibit 13]. The City of Yonkers is still responsible for " . . . the [day-to-day] type of . . . functions, pavement repair, drainage repair, traffic, traffic lines, signs and traffic signals." [T-264]. The DOT is responsible for inspections conducted biannually, as well as communication with the City to relay problems beyond the range of day-to-day maintenance that would require State intervention or a project to correct the condition. The purpose of the biannual inspection, he explained, is as a "generalized overall inspection of the highway. It's a one-sheet inspection. We look at various aspects such as pavement, traffic signs, lines, guide rail if there's any, fencing . . . We rate an entire section . . . we would rate Yonkers Avenue . . . as a whole entity as opposed to . . . a specific site." [T-265].

The witness identified Exhibit 14 as eight pages of inspection reports for Yonkers Avenue. He explained that commentary concerning poorly constructed utility repairs would pertain to the whole of Yonkers Avenue, and would refer to construction that might require the return of the respective utility to correct their error, or work done by the City of Yonkers if the utility involved was a water or sewer line. He said that generally, gas line and telephone repairs are made by the utility company, but sometimes it is easier for the City to simply make the repairs itself.

The inspection reports allow the rater to evaluate the pavement as "excellent", "good", "fair" or "poor", and also allows an overall rating using the same words. [Exhibit 14]. A resurfacing project on Yonkers Avenue from its intersections with Nepperhand and Alida allowed for an excellent rating for that section of the road in the category of pavement in the report covering the period from December 1, 2000 to May 31, 2001. [id.]. The comments concerning the need for repairs around utility cuts and manholes is continued, and there is a notation that "rutting" is exhibited. [id.]. Rutting was explained as a condition occurring at intersections, where the surface becomes uneven as a result of the asphalt being heated up and traffic along the roadway making wheel tracks. The overall rating for that period is described as "good and fair." [id.]. The term "good", he thought, referred to the piece from Alida Street to Nepperhand because it had been resurfaced, and prior to this report the overall rating had been consistently "fair." He explained that "fair", however, doesn't mean that the road is not serviceable, but rather that it may be time for remedial attention because of basic aging and maintenance issues.

As far as how the State conducted any inspections, Mr. Mason said they would drive in both directions on a given roadway at least once, and would rate the roadway at the end of the drive-through based upon what they saw. A series of photographs are taken every 50 yards or so to serve as a general photo-log of the area. [See Exhibit B]. The photographs - taken on May 16, 2001 - provide a broad sweep of Yonkers Avenue and its intersections, and where there are no cars parked the road is visible to the curb line and beyond to the sidewalks and storefronts. That portion of the photo log directly in front of Morley's Supermarket has a parked tractor-trailer, and although there is a car parked at the meter where Claimant parked her car, there is a view - albeit a very limited view - of the space behind the car where the pothole has been generally placed by the testimony.

In January 2002, Mr. Mason visited the area in front of 783 Yonkers Avenue and also took photographs. [Exhibit C]. He observed areas of delamination - or peeling away - of asphalt from the underlying concrete pavement, leaving a depression of "around a half inch or less . . . and there was some other deterioration right close to the curb line." [T-276; Exhibit C]. The area immediately behind the telephone pole is not readily visible from these photographs, but what appears to be an inch wide or so of filler of some type can be observed directly next to the curb line.

On cross-examination Mr. Mason conceded that if indeed the pothole had been filled within a week of Claimant's accident, when he went to the site in January 2002 to look for the pothole, he would not have been likely to find it.

Finally, Nicholas Pucino, Defendant's expert engineer, and a former Regional Construction Engineer for the New York State Department of Transportation, also testified. He reviewed the police investigative report, the pleadings and depositions, photographs, record plans, maintenance agreements as well as a city repair document and also visited the site on August 16, 2004 and on September 14, 2004. He indicated he was unable to pinpoint the exact location of Claimant's fall, but did observe a continuous area in front of 783 Yonkers Avenue which he described as having " . . . a continuous peel out of . . . the pavement along the curb line . . . which . . . [he] considered to be the general nature of the . . . 'pothole' that was referenced . . . [He] made certain measurements and observations of the conditions there and took photographs." [T-308].

The record plans for that site, he said, called for retaining the original concrete pavement, and then resurfacing the area, including a granite curb and sidewalk to the curb line. [Exhibit A]. A one and one-half-inch binder on the resurfaced section of the roadway is also planned. Mr. Pucino said that because they were not able to fit "the binder in there . . . they tapered the asphalt to meet the new curb grade so as not to bury the curb reveal . . . [C]onsequently, you ended up with just about an inch of top course over the top of the base concrete, at least in this location . . . pretty much along the curb line." [id.]. He said that he observed that the curb had been cut into the concrete as an initial matter, with the granite curb then set in concrete at the base, where it would be shifted and set in place. Generally, a several-inch-wide space in front of the curb is allowed in order to accommodate the shifting curb. That space is "filled with grout and sometimes just asphalt." [T-309]. The space, he said, "is the natural result of having to cut a . . . granite curb into a concrete pavement with enough space on each side to set it exactly to line, and . . . manipulate it and put concrete." [id.].

Mr. Pucino examined the area generally in front of 783 Yonkers Avenue, seeing a condition he thought was "representative" of what may have been viewed as " . . . 'the pothole' or the pothole condition . . . ", running along the "whole front of the . . . building . . . " [T-313]. Although he had no specific location for the pothole, he made measurements along the whole front of the curb, premised upon his observation that in order " . . . to meet the curb grade and not bury the curb, they had taken out the binder course and put just the top course through that area which is a thinner overlay over the top of the base concrete." [T-313-314]. He said that "in some sections, near the curb line, which is generally a foot and a half or so from the curb line, the asphalt pavement had peeled off or delaminated . . . at various locations along that face all the way in front of 783 . . . exposing a . . . depth of what some might call a pothole loosely . . . a depth to the underlying concrete pavement . . . [T]he underlying concrete pavement . . . was in excellent condition . . . no indications of deterioration. So, the depth of any pothole in that area would necessarily be the thickness of the asphalt that had moved away or come away in some fashion." [T-314]. The maximum depth of a potential pothole across the area where Claimant fell, then, was 5/8 inch to one inch in some areas, but not more because of the underlying concrete. He said the concrete pavement has a mesh in it, at the three-inch level. He said that in order to have been the four- or five-inch depth alleged, the pothole would have gone "all the way down to the reinforcing mesh and there's no indication of any spauling (sic) . . . " consistent with a hole going down to that level. [T-315]. Additionally, he pointed out that generally, a "six-inch or so curb reveal" is what is sought. Given the underlying concrete, although the resurfacing with asphalt calls for a full two and one-half inches, that amount of asphalt would lose the curb reveal. A field adjustment would have been necessary - and an endemic part of construction - to taper the pavement down in some fashion so as not to bury the curb. [T-318].

Mr. Pucino did not think asphalt drying out is what caused any problem with the pavement. What he saw was that the edge of the tapered asphalt was mashed down by traffic, but still had " . . . enough body to it [and was] still flexible." [T-319]. In his opinion, the pavement came off because it delaminated; because water could get between the asphalt and the concrete surface. Since it was a thin overlay, it could pop off. He did not find that the area had been improperly patched, but reiterated that because of delamination, and the thin overlay in that area, over time potholes " . . . if you want to call them that, do occur." [T-320].

He thought that a pothole of a depth of an inch or less - the only depth he opined was likely at the site of Claimant's fall - is not deep enough to trap a foot. He opined, however, that " . . . if on stepping off the curb the party didn't fully step clear of the curb, the back of the heel could be caught against the curb and the . . . lip of the asphalt or even without the lip of the asphalt . . . you can actually get your foot wedged in there." [T-321]. He agreed that whatever pothole there was was a factor in the accident, in addition to Mrs. Stevens perhaps not looking down since she was carrying her grandchild.

When Mr. Pucino was shown the photographs Claimant had indicated depicted the pothole in which she fell, he said that the pothole depicted " . . . is one in which a person could get their heel trapped against the curb . . . " and that it warranted repair. [T-328; Exhibits 3 and 4]. He also stated that " . . . the depth is, and the edge condition is . . . pretty much what I observed except I would point out that . . . this pothole looks much fresher than . . . the other things that I observed. In other words, this was not that old from what I could see. The other ones, you'll see the edge of the so-called pothole or pavement was matted down and flattened and pretty thin. This one is a little bit more vertical. So . . . it didn't appear to be that old. But, it does clearly show the underlying concrete base which would limit the depth of that pothole in . . . the concrete-pavement area to the inch or so that I indicated previously." [T-328].

On cross-examination he reiterated that the precise pothole could not be identified. He disagreed with the police report indicating that the pothole was four inches deep, saying that it had not been measured, and reiterating his thoughts about the presence of undisturbed underlying concrete. He said "You can't get a four-inch-deep pothole in one inch of asphalt." [T-353]. He did restate, however, that the area between the curb and the concrete - where the curb was cut in - formed a jagged gap in places, and conceded that it went below the surface. [T-367-368]. He also reiterated that whether the contract specifications called for tapering toward the curb or not, that is what was done as part of what must have been field adjustments and determinations. It was also conceded that he could not say with reasonable engineering certainty that Claimant did or did not look down as she stepped off the curb.

Deposition testimony by Martin Dougherty, a traffic engineer for the City of Yonkers, and Joseph D' Sienna, employed by the City of Yonkers in the Street Maintenance Department, repeated the theme that if cars were parked on Yonkers Avenue it would be difficult to observe the area by the curb, that the hours for work crews to do visual observations of pertinent areas were 7:00 a.m. to 3:00 p.m., and that a work order to fill holes in front of 783 Yonkers Avenue was called in on September 18, 2001 and completed on September 26, 2001.

It is noted that no witness indicated that there had been utility cuts or cuts for manhole covers in the area in front of 783 Yonkers Avenue, nor had any witness other than Claimant's relatives actually been to the site immediately after the accident to take photographs. Both experts noted a gap between the curb and the asphalt - indeed Defendant's expert called it a "jagged" edge - and it is also notable in almost all the photographs taken. According to the plans, it appears that this section of Yonkers Avenue was constructed in 1978. [Exhibits 15, 16 and A].

No other witnesses testified.

DISCUSSION AND CONCLUSION

It is axiomatic that the State of New York has a duty to construct and maintain its highways and adjoining areas in a reasonably safe condition for the public use. It is a non-delegable duty to maintain its roads and highways in a reasonably safe condition to prevent foreseeable injury, but this duty does not render the State an insurer of the safety of its roads. See Friedman v State of New York, 67 NY2d 271 (1986).(2) No liability may attach unless the ascribed negligence in maintaining the roadway is a proximate cause of the accident. Hearn v State of New York, 157 AD2d 883 (3d Dept 1990), lv denied 75 NY2d 710 (1990). Additionally, in fulfilling its obligation the State may assume that those using the roads will use reasonable care and obey the law governing the operation of motor vehicles, for example. See Tomassi v Town of Union, 46 NY2d 91, 97 (1978).(3)

When an allegedly dangerous condition is at issue - as is the case here - assuming that the State did not create it, a Claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). With respect to constructive notice, any " . . . defect 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 . . . (citation omitted)." Gordon v American Museum of Natural History, supra, at 837.

The Court is not satisfied that a pothole in the roadway next to the curb of Yonkers Avenue constituted a dangerous condition. In this regard, the pertinent evidence appears to be the testimony of Mrs. Stevens and her daughter, the police report entered in evidence describing the pothole which the investigating officer found near Mrs. Stevens's landing spot on the road [See Exhibit 10], and the two photographs of a pothole that Mrs. Stevens identified "the" pothole. [Exhibits 3 and 4]. The expert opinions in this case are drawn from their respective engineering expertise, and from observations of the area generally after visits made well after the date of the incident, when both concede conditions had changed. See e.g. Wasserman v Genovese Drug Stores, Inc., 282 AD2d 447, 448 (2d Dept 2001). Neither expert had seen the actual pothole at issue.

With respect to Claimant's expert, he does not appear to have availed himself of the opportunity to visit the site with the Claimant or her daughter to assist in pinpointing the necessary facts in order to render a meaningful opinion concerning a condition that no longer existed, nor was his testimony as an engineer as to what a pedestrian might or might not expect when walking on a surface particularly meaningful when no facts were elicited as to Claimant's own expectations. One person's pothole is another's shallow depression. Most of the expert testimony concerned the very obvious peeling away of the asphalt surface from the underlying concrete material. It rings true that a "pothole" in this area, absent some evidence that the concrete, too, was disturbed, would only be the inch or less deep that constituted the asphalt overlay.

What both experts did indicate, however, was that there was a space of some

little width between the curb and the pavement proper, with a jagged edge in places, endemic to the construction of the curb. But this space, even if indeed the dimensions were as they appear to be in the photographs, and as described by Mrs. Stevens, MaryAnne Stevens, and the investigating officer, did not mean the pothole was of sufficient depth and width to constitute a dangerous condition under the circumstances.

As has been noted, " . . . liability, in a case involving minor defects in the pavement, [does not] 'turn . . . upon whether the hole or depression, causing the pedestrian to fall, is four inches - or any other number of inches - in depth' . . . (citations omitted). Instead, whether a dangerous or defective condition exists on the property of another so as to create liability 'depends on the peculiar facts and circumstances of each case' and is generally a question of fact . . . (citation omitted)." Trincere v County of Suffolk, 90 NY2d 976 (1997). Given the asserted depth of between four and five inches - a figure arrived at only by "eyeballing" the hole on the part of the police officer and MaryAnne Stevens - and the mechanics of the fall as described by Mrs. Stevens, that is, her heel caught in the area closest to the curb, it was there, in the narrow space remaining after a curb is constructed, that Claimant's sneaker stuck. Assuming that the photographs she identified and marked are accurate as to location vis-à-vis the curb, this is a readily observable condition that she would have seen had she not been engaged in holding a 25- pound child in her arms, whose head reached Claimant's chin or slightly above, as she stepped off a curb.

Whether a condition is dangerous depends on the facts of each case. Guerrieri v Summa, 193 AD2d 647 (2d Dept 1993). A Defendant " . . . may not be cast in damages for negligent maintenance by reason of trivial defects on a walkway, not constituting a trap or a nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection." [id.]. Holes in the ground or a walkway, too, may be deemed negligible if readily apparent. Palminteri v Massapequa Shopping Associates, 264 AD2d 412 (2d Dept 1999); MacGown v State of New York, Claim No. 101131, UID# 2003-016-083 (Marin, J., dated October 14, 2003); Zakharenko v State of New York, Claim No. 93960, unreported decision, (Sise, J., filed March 28, 2002); cf. Ennis v State of New York, Claim No. 101239, UID# 2001-019-015 (Lebous, J., dated August 28, 2001). In this case, even assuming that Claimant established where she fell, the hole was a trivial defect, visible to the reasonably careful pedestrian. Wasserman v Genovese Drug Stores, Inc., supra at 448; Schechter v City University of New York, 248 AD2d 372 (2d Dept 1998).

Moreover, even assuming this constituted a dangerous condition as an initial matter, actual notice has clearly not been established. There was no record made of any prior complaints or accidents at this location prior to the date of Claimant's fall. Nor was there any showing that the State created the condition.

As to constructive notice, the nature of the condition and its location have a bearing on whether it should have been noticed by employees responsible for surveying the highways for maintenance purposes, and whether their procedures are reasonable.

There was testimony that DOT representatives conducted biannual inspections of the roadways, and that photo logs and inspection reports were generated based upon these inspections conducted as employees drove in vehicles along the road. [See e.g. Exhibit B]. There was testimony that City employees, too, drove around regularly in their trucks between the hours of 7:00 a.m. and 3:00 p.m. looking for problems. Clearly, the main focus of these surveys was that portion of the roadway where vehicular traffic flowed, although based upon the notations in the inspection reports [see Exhibit 14], attention was paid to the pavement generally. While Claimant urges the view that such inspections were inadequate to the task, given the multitude of roadways under the jurisdiction of the State of New York, it would be unreasonable to require that inspectors get out of their vehicles and conduct street inspections by foot as suggested by Claimant.

Additionally, given the mechanics of the incident as testified to by Claimant, the Court is not convinced that any defect - assuming its presence was the result of negligence - was the proximate cause of Claimant's injuries.

Based on the foregoing, Claimant has failed to establish by a preponderance of the credible evidence that there was a dangerous or defective condition present on the road surface in front of 783 Yonkers Avenue, about which the State had actual or constructive notice, and which it failed to cure within a reasonable period of time. It is only those foreseeable dangerous conditions which are not remedied within a reasonable time which may establish liability on the State's part, [ Gordon v American Museum of Natural History, supra], assuming that proximate cause and actual damages are proven as well.

Claim Number 106045 is hereby dismissed in its entirety.

Let Judgment be entered accordingly.

July 8, 2005

White Plains, New York

THOMAS H. SCUCCIMARRA

Judge of the Court of Claims


1. All quotations are to the transcript [hereafter T] unless otherwise noted. [T-38].

2. These four cases decided concurrently all involved so-called "cross-over" accidents occurring on State- constructed and maintained highways in which the alleged negligence was the State's failure to install median barriers.

3. " . . . So long as a highway may be said to be reasonably safe for people who obey the rules of the road, the duty imposed upon the municipality is satisfied . . . .", id. at 97.