New York State Court of Claims

New York State Court of Claims

TINSLEY v. THE STATE OF NEW YORK, #2005-033-550, Claim No. 106474


Case Information

PAUL TINSLEY, an infant by m/n/g KAREN MAYS and KAREN MAYS, individually
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:
Dana & Kaplan By: Frank J. Rucci, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 27, 2005

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for damages by Paul Tinsley (hereinafter “claimant”) an infant, by his mother and natural guardian, Karen Mays and Karen Mays, individually,
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.
On April 22, 2001, at approximately 11:00 a.m., claimant was walking on Carman Mill Road near its intersection with State Route 27A, Massapequa, New York. According to the testimony of the witnesses and the photographs in evidence, there is no sidewalk on the west side of Carman Mill Road, but there is one on the east side of Carman Mill Road. Carman Mill Road is a north/south road which ends in a “T” intersection with State Route 27A. It is one lane in each direction. The road is a mixture of concrete and blacktop. Carman Mill Road has a small paved shoulder on the west side followed by a dirt strip and then a guardrail.
Claimant was walking in a northerly direction on the west side of Carman Mill Road just south of State Route 27A in the dirt area between the paved shoulder and the guardrail. According to claimant, he tripped on a piece of irregularly shaped concrete approximately 5 inches by 8 inches and 1½ inches tall embedded in the ground in the dirt area.
Claimant also presented the testimony of Richard Berkenfeld. Mr. Berkenfeld was presented as an expert in walkway safety who opined that the concrete embedded in the dirt as seen in the exhibits presented a tripping hazard to pedestrians.
Claimant then called several employees of the defendant to prove that defendant maintained the area. The State, through its witnesses, admitted installing and maintaining the guardrail. However, each of the employees denied maintaining the dirt area between the edge of the shoulder and the guardrail. The only admission of maintenance was by Mark Militello, the highway supervisor of the area after claimant’s accident. Mr. Militello continually denied directing any maintenance of the dirt strip area but stated that if he were to see a sizable piece of debris in this area he would pick it up.
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 Restaurant, 246 AD2d 514).

Highway Law §140(18) states that defendant is not responsible for areas which are not part of the state roadway. Typically, the State is responsible for the roadway “curb to curb” (Nado v State of New York, 161 Misc 2d 178). In the instant case, no curb exists and the area the State claims not to be responsible for is surrounded by areas the State is responsible to maintain. However, claimant failed to present evidence which would convince this Court that defendant is responsible for the maintenance and/or repair of the area.
Assuming, arguendo, claimant proved defendant maintained the area in question, claimant must also show the condition is dangerous.
Claimant argues that defendant must maintain those areas adjacent to its roadways and keep them in a reasonably safe condition (Stiuso v City of New York, 87 NY2d 889).
In Stiuso, the Court extended this duty to maintaining the area to foreseeable uses. In the instant case, a look at the photographs in evidence demonstrates that pedestrian traffic was not anticipated at this area. The sidewalk on State Route 27A stops before making the turn to the west side of Carman Mill Road. Instead, the sidewalk leads across Carman Mill Road to the east side of the road where a pedestrian sidewalk was constructed. The area, as depicted in the photographs, is suitable for the intended use of vehicular traffic. 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.
In Urbaniak v Town of Clay, 237 AD2d 875, 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 it 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.

September 27, 2005
Hauppauge, New York

Judge of the Court of Claims

[1].The case of Karen Mays is derivative in nature. All references to claimant will be to Paul Tinsley.