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.
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:
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
The State of New York is under a duty to maintain its property in
a reasonably safe condition given the prevailing circumstances. Basso v
, 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.
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
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
Given the foregoing circumstances, claimant has failed to
meet the Gordon
standard for constructive
Claimant must prove his case by the fair preponderance of the
credible evidence; if the credible evidence weighs equally, defendant will
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
, 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.
LET JUDGMENT BE ENTERED ACCORDINGLY.