New York State Court of Claims

New York State Court of Claims

PINO v. THE STATE OF NEW YORK, #2006-016-084, Claim No. 110231


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):

Alan C. Marin
Claimant’s attorney:
Dansker & Aspromonte Associatesby: Paul Dansker, Esq.
Defendant’s attorney:
Eliot Spitzer, Attorney Generalby: Victor J. D’Angelo, AAG
Third-party defendant’s attorney:

Signature date:
December 15, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the trial of the claim of Edward Pino that he fell from his bicycle as a result of the defendant’s negligence. The narrative explanation herein is drawn from the claimant, the sole witness who took the stand; the deposition of a state employee was received into evidence for the purposes of proving ownership of the area.
A bicycle path ran along the West Side Highway in Manhattan from Battery Park to West 59th Street, and after a break, continued north to 96th Street. Mr. Pino was a highly experienced bicyclist who was then president of the Five Borough Bike Club. He lived on West 115th Street in Manhattan, and on the evening of December 22, 2002, cycled south to below 59th Street. The weather was brisk and clear, and the bike path was free of snow or ice.
Riding back uptown, claimant approached 58th Street to a place where the pathway broke for an entrance to a salt storage facility of the New York City Department of Sanitation (cl exh 3). He was riding with an acquaintance, Anthony Donato, who was behind him. The two cyclists were not riding with anyone else, and claimant saw no other cyclists on the path near them, or for that matter, any pedestrians either.
Claimant was moving along at 10 to 12 miles per hour, a speed he characterized as medium. He was wearing protective gear, including a helmet and had his bike’s front and rear lights on. He proceeded through the open area for the Sanitation Department’s driveway; it was about 9:30 p.m. When asked what the first indication of his accident was, Pino replied, “I was flying over the handle bars.” Then this exchange ensued on direct examination:
Q . . . Did you feel your, the front wheel of your bike strike any object in the roadway?

A. Yes.

Q. At the time that you felt it, did you know what that was?

A. No.
A short time later, the testimony returned to the accident itself:
Q . . . Did you ever see at any time before this accident the . . . [bollard base shown in claimant’s exhibit 5]?

A. No.

Q. When, for the first time, did you see that object?

A. After I hit it.
Pino went on to say that he made the observation right after he fell. He had looked back to see what had caused his mishap, describing it as the base of one of the yellow dividers he had seen for years on the pathway, and which he later learned were called bollards, i.e., plastic columns about two or three feet high pictured in claimant’s exhibits 1 and 9.
Claimant offered the February 3, 2006 deposition of LeRoy White, an employee of the State Department of Transportation in the New York City region (cl exh 12). Since at least 1998, Mr. White has been involved with real estate management for the DOT in the region. Mr. White testified that as for the subject area between West 56th and 59th Streets, on March 16, 1999, a notice of appropriation was issued, indicating that the State assumed ownership on or about that date. In any event, defendant does not dispute ownership of the location.
The State of New York is under a duty to maintain its property in a reasonably safe condition given the prevailing circumstances. Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976). That does not make the State an insurer. Clairmont v State of New York, 277 AD2d 767, 716 NYS2d 760 (3d Dept 2000), lv denied 96 NY2d 704, 723 NYS2d 131 (2001). In order to prevail, a claimant must show that a dangerous condition which was created by the State was the proximate cause of his fall off his bicycle, or if defendant did not create it, that such dangerous condition was known or should have been known and could therefore be remedied.
There is no showing of actual notice to the defendant of how the bollard came to be truncated. Nor was any evidence offered that a complaint was filed or that there were any prior similar accidents. There is no record or testimony of a state employee who saw the condition, and no witness who says that he or she reported it.
For there to be constructive notice, a condition has to be “visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant’s employees to discover and remedy it . . . ” Gordon v American Museum of Natural History, 67 NY2d 836, 837, 501 NYS2d 646, 647 (1986) (citations omitted). Claimant relies upon an Appellate Division case, which held that from the record, the judge in a bench trial could have found constructive notice to the State of a “large pothole on a major highway” where a witness testified to having seen it less than two days before the accident and the defendant State conceded that the highway was inspected regularly by maintenance crews (and the police). Gaines v Long Island State Park Commission, 60 AD2d 724, 725, 401 NYS2d 315, 317 (3d Dept 1977).
Pino bicycled on this path at least once a week and had been through the area of the accident over two hundred times. He last noticed the complete plastic bollard at 58th Street “[s]ometime prior to the first week in December,” concluding that the bollard column must have been missing since Sunday, December 1, or from the next Sunday.
Even in the daytime, the bollard base was not a prominent feature, and was low to the ground (see cl exhs 2 & 3). It was the same color as the double yellow line (which divides north and southbound bicycle traffic), but was not wider than the double line. Pino conceded the point when asked on cross-examination if the “bollard base is within the double solid yellow line. It’s not on either one of the travel lanes of the bike path, is that correct?”
Given the foregoing circumstances, claimant has failed to meet the Gordon, supra, standard for constructive notice.
Claimant must prove his case by the fair preponderance of the credible evidence; if the credible evidence weighs equally, defendant will prevail. (PJI 1:23). Pino’s case lacked a number of items that would have made it more persuasive:
- There was no ruler or even a person’s shoe placed near or against the bollard base to convey its dimensions. Pino conceded that he never took measurements,
although there is no de minimus standard in such matters. Trincere v County of Suffolk, 90 NY2d 976, 665 NYS2d 615 (1997). In addition, claimant did not offer measurements of the bike lanes whose narrowing he highlighted.
- Claimant presented no expert testimony as to highway and bike pathway engineering practices and applicable regulations regarding, for example, the configuration and width of bike lanes. Similarly, there was no expert testimony as to how a bollard is constructed, i.e., in one piece (such that it was broken here), or in two pieces as a base and column.
- No expert testified as to the alleged lack of lighting. Claimant complains of poor lighting that night, offering photographs (cl exhs 2 & 3) to show that the light stanchions were positioned too far away - a half a block, but not that any lights were out, conceding they were illuminated when he fell.
- There was insufficient evidence as to the overall aspect of the bike path. The photo that is claimant’s exhibit 3 is not unhelpful, but the area around the accident site was not well conveyed by the photos or otherwise supplemented. It does not clearly show how claimant had to maneuver “left to right” past the opening to the entrance to the Sanitation Department’s storage shed.
- No witnesses other than claimant testified.
- No accident report or police report was introduced into evidence. Pino testified that he never reported the accident.
- While its absence is less significant than the above, weather reports would have been helpful to support the claim that not only was it clear and dry, but that it had been that way for a sufficient period. A number of the photographs in evidence show accumulated salt on the bike path (cl exhs 6, 7 & 8). Pino testified that he took the photos about a week after the accident. Does that mean it snowed in the interval and hence the salt accumulation, or is that something that will in any event occur near the salt storage area (perhaps, it snowed a few days earlier and the salt used then remained though December 22)?
In view of the above, Edward Pino has failed to prove his case and claim no. 110231 is dismissed.

December 15, 2006
New York, New York

Judge of the Court of Claims

[1]. Pino testified that the bollard base was “maybe an inch or two off the ground.”