New York State Court of Claims

New York State Court of Claims

BALLERINI v. THE STATE OF NEW YORK, #2005-033-538, Claim No. 104913


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):

James J. Lack
Claimant's attorney:
Michelstein & Greenberg, LLPBy: Richard C. Bell, Esq.
Defendant's attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 30, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for damages by Christopher Ballerini (hereinafter "claimant") based upon the alleged negligence of the defendant. The trial of this claim was bifurcated and this decision pertains solely to the issue of liability. The claim of Kim Ballerini is derivative in nature.

On September 24, 1999, at approximately 3:30 p.m., claimant was riding a bicycle on State Route 25, in the Town of Smithtown, State of New York. Claimant was in an eastbound direction, traveling in the shoulder lane of eastbound Route 25. While crossing over a drainage grate, claimant's front tire became stuck and claimant was catapulted over the front of his bicycle. The tire became stuck in the space between the edge of the grate and the frame of the box which holds the grate. The grate and manner in which claimant's tire got stuck are portrayed in claimant's Exhibits 1 and 2 respectively.

The facts of the accident, as described, are simple and uncontroverted. Claimant contends that defendant was negligent in permitting the condition to exist. Claimant argues that the gap between the edge of the drain grate and the frame of the box was too large. In support of his position, claimant called Dr. William Marletta to testify. Dr. Marletta is a certified safety consultant.[1]
In giving his experience, Dr. Marletta indicated that he was familiar with drainage grates and their safety. Dr. Marletta visited the accident scene and stated that he measured the gap from the grate to the frame. However, the witness's first visit to the location was February 26, 2002, approximately 2 ½ years after claimant's accident. The Court can give no weight to measurements taken by the expert of the drainage grate and frame. Dr. Marletta measured claimant's bicycle tire and found it to be .91 inches or just under 1 inch.
In examining claimant's Exhibit 2, the Court notes that claimant's tire is in the gap in question. The bicycle is standing straight up and there is no room between the bicycle tire, the edge of the drainage grate, and the frame. The Court estimates the gap to be approximately 1 inch, given the width of the tire and its positioning in the gap. Dr. Marletta opined that the grate should not have had such a large gap. This opinion was based on the knowledge that bicyclists were permitted to use the roadway pursuant to the NYS Vehicle and Traffic Law (§1234[a]), that the NYS Highway Design Manual anticipated bicyclists (§18.08
et. seq.), and a reading of the specifications (Exhibit 12) shows a ¼ inch gap.
Defendant called one witness, Harold Tarry, to testify. Mr. Tarry is an engineer employed by the NYS Department of Transportation. He is the Design Unit Supervisor and as such he manages a unit of engineers that design highway projects, reconstruction projects and new construction projects. In reading the specifications for the drainage grate and the box it sits in, the witness arrived at different measurements than claimant's witness. Using the specification pages of a contract (Exhibit 12), the witness stated that the gap, as designed, could be up to 2 inches. In examining claimant's Exhibit 12, the witness testified that the grate was approximately 2 feet 3/16 inch wide[2]
and the opening in the frame is 2 feet 1 ½ inches wide. This leaves a total gap of 1 5/16 inches which must be divided by two to center the grate in the box, which gives a gap of approximately ¾ inch on each side. The grate is bolted into the box, but the bolt goes through a slot which allows the grate to move. This now puts the gap back at a possible 1 5/16 of an inch. According to the witness there is an additional ¾ of an inch between the curb box plate and the grate which allows movement. When the grate is put into place, it does not sit flat but actually tilts up, which would cause the gap to open more.
It is incumbent upon claimant to establish: the existence of a foreseeable 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 damages were sustained
(Gordon v American Museum of Natural History, 67 NY2d 836).
It is the particular facts and circumstances of each case which will determine whether a dangerous or defective condition exists (
Guerrieri v Summa, 193 AD2d 647).
However, a property owner may not be held liable in damages for "trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection" ( Guerrieri v Summa, 193 AD2d 647, supra, quoting Liebl v Metropolitan Jockey Club, 10 AD2d 1006; see also, Hecht v City of New York, 89 AD2d 524, mod on other grounds 60 NY2d 57; Mascaro v State of New York, 46 AD2d 941, affd 38 NY2d 870; Levine v Macy & Co., 20 AD2d 761.
Marinaccio v LeChambord Rest., 246 AD2d 514-515.
As previously stated, the Court finds the gap in the grate to be approximately one inch.[3]
The Court finds that the claimant has failed to prove that a dangerous condition existed or that the condition constituted a defect (Trincere v County of Suffolk, 90 NY2d 976).
Assuming arguendo, claimant has proven the condition was dangerous, he has failed to show that defendant was aware of the dangerous condition. Claimant has shown no accident history in this area.

Urbaniak v Town of Clay, 237 AD2d 875-876, the Court said
Although a municipality owes an absolute duty to keep its highways in a reasonably safe condition (see, Friedman v State of New York, 67 NY2d 271, 283; Weiss v Fote, 7 NY2d 579, 584, rearg denied 8 NY2d 934), it is afforded a qualified immunity from liability arising out of highway planning decisions (Friedman v State of New York, supra, at 283; Alexander v Eldred, 63 NY2d 460, 465-466; Weiss v Fote, supra, at 585-586). A municipality may not be held liable "absent some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it" ( Weiss v Fote, supra, at 586).

Claimant has raised no issue which would cause the Court to strip defendant of its immunity.

Accordingly, the Court finds in favor of defendant and dismisses the claim. The Clerk of the Court is directed to close the file. All motions not specifically ruled upon are denied.

Let judgment be entered accordingly.

March 30, 2005
Hauppauge, New York

Judge of the Court of Claims

[1]Dr. Marletta was qualified as an expert in safety, but not in highway design, engineering, placement of drains or how drains are designed to be placed on roadways.
[2]The witness stated 9/16 inch at trial, but the exhibit says 3/16 inch.
[3]The type of grate was never in question. According to the Highway Design Manual the grate in question was the preferred type of grate for use with bicyclists. Claimant's contention is that the gap is dangerous.