New York State Court of Claims

New York State Court of Claims

PIMENTEL v. THE STATE OF NEW YORK, #2006-010-016, Claim No. 110029


Claimant sought damages for a slip and fall at Rockland Lake State Park. The claim was dismissed as the Court found that the defect did not constitute a trap or nuisance and claimant’s fall was due to his own inattentiveness.

Case Information

1 1.The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
ALLYSON J. SILVERMAN, ESQ.By: Irwin B. Silverman, Esq., Of Counsel
Defendant’s attorney:
Attorney General for the State of New YorkBy: Wanda Perez-Maldonado, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 9, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries he allegedly sustained at Rockland Lake State Park in the afternoon on August 1, 2004. According to claimant, he was attempting to retrieve a softball when he slipped and fell into a puddle which he described as six inches deep and two to three feet wide and long. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant testified that he arrived at the park between 2:00 p.m. and 2:30 p.m. with his girlfriend, Lourdes Vasquez, and her children. After parking the car, they carried food packages to an area known as field 2. Claimant explained that it was their summer Sunday routine to picnic in the park and play softball with friends and family. Claimant estimated that during June and July 2004, he had been to the park at least twice. From prior visits, claimant was aware that in field 2 there were patches where the grass did not grow and certain puddles after a rainfall.

According to claimant, approximately one hour after arriving at the park, he was walking across the field while two of his friends, Franklin Liz and Luis Cruz, were playing catch with a softball. Cruz missed the ball. As claimant tried to pick up the ball, he slipped and fell into what he described as a hole. Claimant landed on his hand and was covered in mud from the puddle.

Liz called 911. Police and an ambulance responded to the scene. The Police Report revealed that when questioned by an officer, claimant stated that “he was playing ball when he slipped in a puddle on the grass” (Ex. 4). At trial, claimant maintained that he was not engaged in a game of softball; rather his friends were just having a catch and he tried to throw the errant ball to them. He testified that he reacted to the ball, almost like a reflex, and on his own initiative he went to retrieve it (T:84).[2] His friends had not asked him to get the ball. He testified:
“Louis [sic] missed the ball. The balled [sic] rolled, and as I was walking, I noticed the ball, I tried to stop the ball, okay. When I tried to pick up the ball like to pass it – just to toss it because he was walking – he was running after the ball, I tried to stop the ball, try to pass the ball to him. As I did, I slipped.”

When questioned about his activities after he arrived at the park, claimant offered confusing and contradictory testimony regarding the time span. Initially, he testified that he and Vasquez had only gone back and forth to the car twice carrying food and then the two of them walked around the field (T:11). Later, claimant testified that he fell while reaching for the ball with one hand and holding a shopping bag in the other hand (T:87-88). Professing confusion, to fill in the gap in time, he then testified that he went home in the middle of the afternoon. Claimant never really answered the question as to what he was doing when he fell.

When asked at trial whether he noticed any wetness on the ground as he was walking prior to his fall, claimant testified that the ground was “not wet” (T:52). However, to the contrary, when asked the same question at his examination before trial, he responded “I did, I did” (T:53). The following ensued on claimant’s cross-examination:
Q: So it would be fair to say that you did see this puddle when you were walking around the park, correct?

A: I don’t know if I saw it like specifically, You know, probably I did.

Q: Now, there wasn’t anything blocking you from looking at the field, correct?

A: No.

Q: So had you looked in that area, you would have seen that puddle, correct, Mr. Pimentel?

A: The thing is I didn’t see it.

Q: Well, my question is, had you looked in that area, you could have seen that, correct, Mr. Pimentel?

A: If I looked in that area, probably I could have.

(T:58). Thus, at trial, he conceded that there was nothing blocking his view of the puddle and though he did not know if he specifically saw the puddle before he fell, he conceded that he “probably” saw it before he fell (T:108). When pressed further by his own counsel, “what made you go into the puddle” claimant answered, “I [just tried] to stop the ball” (id.).

Luis Cruz testified that he has been claimant’s friend for nine to ten years and for the past four to five summers, he met claimant approximately three Sundays a month at the park to play softball. Contrary to claimant’s testimony that he had only been at the park three times during June and July 2004, Cruz estimated that he and claimant had been at the park together at least five times. Cruz testified that on August 1, 2004 he was playing catch and missed the ball. Cruz did not see claimant until he was on the ground.

Lourdes Vasquez testified that she and claimant often went to field 2 at the park on Sundays in the summer. According to Vasquez, they had been in the park for two hours prior to claimant’s fall and claimant had never left the park. Vasquez was walking ahead of claimant when he fell. Vasquez denied that she had been walking around the park with claimant earlier in the afternoon.

Dennis Haight, who had been employed by the New York State Office of Parks and Recreation as the manager of the Park from 1999 to 2005, testified he was familiar with field 2. He examined the photographs in evidence of the puddle (Exs. 1, 2) and agreed that the condition shown had occurred repeatedly over the years. He also testified that nothing was done to remedy the situation and no attempts were made to regrow the grass because the area was open and obvious and of no significant depth. Haight explained that the park was a rustic site and the field was a natural expanse rather than a formal lawn. The field was 300 feet by 150 feet and used for picnics, baseball, volleyball and soccer. Haight further testified that in dry weather it was apparent that there were certain portions of the field where grass did not grow and dry spots were very visible. After rain, some water would puddle.

Jose Uribe testified that for the last six years he has been employed to mow grass at the park from April to October. He is familiar with field 2 and the area of claimant’s fall. During the summer season, Uribe used a tractor to mow the grass on the field. He knew that the depth of the puddle was only about an inch because he had inspected the area and did not have to make any adjustments for the cutting blade of the tractor (T:237-38).

The State, as owner and operator of the park, has a duty to use reasonable care in maintaining the property in a reasonably safe condition to prevent the occurrence of foreseeable injuries (see Basso v Miller, 40 NY2d 233, 241). While 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), claimant is bound to see that which could have been observed by a proper use of his senses (see Coote v Niagara Mohawk Power Corp., 234 AD2d 907) and the State is not obligated to warn against a condition that could be readily observed by the use of one’s senses (Moriello v Stormville Airport Antique Show & Flea Mkt., 271 AD2d 664).
“Negligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of claimant to show affirmatively by competent evidence that the injury complained of was caused by reason of some breach of duty by the State. Negligence must be proven.”
(Mochen v State of New York, 57 AD2d 719, 720). A landowner will not be held liable for conditions inherent in the nature of the land that could reasonably be anticipated by its users (see Torres v State of New York, 18 AD3d 739; Nardi v Crowley Mar. Assoc., 292 AD2d 577, 577-78).

Upon review of all the evidence, including a review of the photographs in evidence and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to establish that defendant was negligent in either its maintenance of the field or its duty to warn of any latent dangers (Tripoli v State of New York, 72 AD2d 823 [claimant did not establish State was negligent in its maintenance of park where claimant fell in hole one foot wide and eight to twelve inches deep in grass covered portion of parking lot]).

Claimant had been to the park and field 2 on numerous occasions prior to his accident and was in the area for several hours prior to his fall. Therefore, he should have been aware of the rustic nature of the area and necessarily observed that which was there to be seen (see DeLaurentis v Marx Realty & Improvement, 300 AD2d 343 [claimant fell while descending a hill on an unpaved path; no liability where condition was inherent in dirt path known to plaintiff and readily observable]; Nardi v Crowley Mar. Assoc., 292 AD2d 577, supra [claimant assumed risk inherent in walking on moss-covered incline, which was an open and obvious hazard]). Claimant testified that his accident occurred when he was carrying a shopping bag in one hand and reacting to an errant ball he was trying to stop with his other hand. The evidence leads to the conclusion that the defect did not constitute a trap or nuisance and claimant’s fall was due to his own inattentiveness (see Kojtari v State of New York, 282 AD2d 437; Paulo v Great Atlantic & Pacific Tea Co., 233 AD2d 380).

Defendant’s motion to dismiss, upon which decision was reserved, is now GRANTED.

All motions upon which decision was reserved are now DENIED


June 9, 2006
White Plains, New York

Judge of the Court of Claims

[2]. References to the trial transcript are preceded by the letter “T.”