New York State Court of Claims

New York State Court of Claims

KENDALL v. THE STATE OF NEW YORK, #2006-031-015, Claim No. 107758, Motion No. M-71367


Synopsis


Although evidence of post accident repairs is inadmissible, photographs of repaired grate Claimant allegedly fell through are admissible for limited purpose of showing location of accident

Case Information

UID:
2006-031-015
Claimant(s):
MICHAEL KENDALL The caption has been amended sua sponte to reflect the only proper Defendant.
Claimant short name:
KENDALL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107758
Motion number(s):
M-71367
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
SETRIGHT, LONGSTREET & BERRY, LLPBY: MARTHA L. BERRY, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 23, 2006
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers, numbered 1 to 4, were read on motion in limine by Defendant for an order precluding Claimant from offering certain evidence at trial:
  1. Notice of Motion, filed March 6, 2006;
2. Affirmation of Joel L. Marmelstein, Esq., dated March 2, 2006, with attached exhibits;
3. Affirmation of Martha L. Berry, Esq., dated March 8, 2006, with attached exhibit;
4. Reply Affirmation of Joel L. Marmelstein, Esq., dated March 9, 2006, with attached exhibit. In his underlying claim in this matter, Claimant asserts that, while a visitor on the State University of New York ("SUNY") Potsdam campus, he sustained personal injuries when he fell through a broken or improperly secured grate in the ground. Defendant brings this motion requesting that Claimant be precluded from offering any testimony, photographs or other documentary evidence relating to a certain grate located immediately adjacent to Maxcy Hall on the grounds of the SUNY Potsdam campus. Defendant asserts that the evidence it anticipates Claimant will attempt to introduce at trial was derived from post-accident repairs made by Defendant. Defendant maintains that, because the evidence relates to post-accident repairs, it is not admissible at trial.

Claimant opposes Defendant's motion, arguing that it does not intend to offer evidence relating to the repairs made to the grate, but rather evidence concerning the location of the grate and the condition of the grate prior to the repairs being made.

The law is settled that evidence of post-accident repairs is neither admissible nor discoverable unless there is an issue concerning Defendant's obligation for maintenance and control (Steinel v 131/93 Owners Corporation, 240 AD2d 301). As there are no issues concerning Defendant's duties relating to maintenance and control of the grate, to the extent that Claimant seeks to introduce evidence of the repairs made by Defendant after the accident, Defendant's concerns are, of course, legitimate. Here, however, at least on the record before me, there is no indication that Claimant seeks to introduce evidence of post-accident repairs, but rather Claimant intends to introduce evidence of the location and condition of the grate at the time of the accident. Such evidence is admissible, and Defendant's motion as it relates to such evidence must be denied. I do understand, and am sensitive to Defendant's concerns, that some of the evidence offered to demonstrate location may also inadvertently indicate that post-accident repairs have been made. To the extent that such evidence can be admitted for limited purposes, I will entertain requests to do so at the time of trial.

Based upon the foregoing, it is hereby

ORDERED, that Defendant's motion is denied.

March 23, 2006
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims