KENDALL v. THE STATE OF NEW YORK, #2006-031-517, Claim No. 107758
Defendant, having failed to include grate through which Claimant fell in its
annual inspection, is deemed to have had constructive notice of defect.
Defendant is 100% liable for Claimant’s injuries
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
RENÉE FORGENSI MINARIK
SETRIGHT & LONGSTREET, LLPBY: MICHAEL LONGSTREET, ESQ.
HON. ANDREW M. CUOMO
New York State Attorney
BY: JOEL L. MARMELSTEIN,
ESQ.Assistant Attorney General
February 22, 2007
See also (multicaptioned
Michael Kendall (“Claimant”) filed claim number 107758 on May 19,
2003 alleging that Defendant State of New York negligently maintained its
property at or around Maxcy Hall Sports Complex on the State University of New
York at Potsdam campus (“SUNY”). I conducted a trial on this matter
in Utica, New York, on April 4, 2006.
Claimant testified that he was injured while attending a high school soccer
game(s) on the campus on November 9, 2002. He was familiar with the area having
been there “many times” before to watch soccer games. Claimant
stated that it was cold on the day of the accident and that he was there
approximately three to four hours before the accident occurred. During that
time, he observed the soccer game(s) from either inside Maxcy Hall or by the
fence adjacent to Maxcy Hall. The last location was where people congregated to
smoke cigarettes. Claimant stated he was standing there, smoking a cigarette,
with other people he did not know, when the accident happened.
Claimant testified he was leaning against Maxcy Hall and standing on a grate.
The grate was located at the corner of the building, “to the left of the
soccer field as I looked at it.” He observed that there were more grates
next to the building as you turned the corner and walked the building’s
perimeter. When he finished his cigarette, he went to step off the grate, but
his foot landed on the corner of the grate. The grate “came up” and
he “went down.” When his attorney asked him to describe what
happened with greater particularity, Claimant stated that his left leg fell
inside the grate and he ended up sitting on the asphalt around the grate.
Claimant estimated that he “dropped” approximately five to six feet
and stated that, once he sat down, the grate dropped back down and onto his
The next day, November 10, 2002, Claimant sought medical treatment at the
Emergency Room (“ER”) at Canton Potsdam Hospital (Exh. 14). He
testified that he then took the hospital report to SUNY’s security
building and talked to someone there about the accident. He left them a copy of
the ER report. Claimant stated he heard from a Mr. John P. Nowicki between one
week and 10 days after the accident occurred. Mr. Nowicki was, at the time, the
Environmental, Health and Safety Officer at SUNY, and was responsible for
investigating complaints and/or problems related to environmental, health and
safety issues on the campus. Claimant testified that, in addition to describing
the accident and the nature of his injuries to Mr. Nowicki, he also told him the
location of the grate, which was “right below the big windows of Maxcy
Mr. Nowicki testified that the University Police contacted him after
Claimant’s accident, sometime in November 2002. This initial contact with
the University Police failed to provide sufficient information so he requested a
“CS-14: Service and Regulatory Incident Report” (Exhibit 5), a form
the police complete. It is not clear when Mr. Nowicki received Exhibit 5. Mr.
Nowicki testified concerning form “CS-13: State University of New York
Report of Accident or Injury (Other Than A Motor Vehicle Accident)”
(Exhibit 1) which is customarily completed by the injured party. Mr. Nowicki
received Exhibit 1 on November 25, 2002. Based on the information contained in
Exhibits 1 and 5, Mr. Nowicki conducted a physical inspection of the area
indicated, that is the north side of Maxcy Hall in the area of the soccer field.
Exhibit 5, filled out by the police, indicates that Claimant fell through a
“drainage grate,” and Exhibit 1, filled out by Claimant, indicates
only that it was a grate.
Mr. Nowicki inspected all the drainage grates between Maxcy Hall and the soccer
field on November 25, 2002 and found them all intact. He then spoke with
Claimant about the grate’s possible location. Mr. Nowicki testified that
all Claimant could tell him was that it was between the building and the
Mr. Nowicki returned to the area the next day to inspect all exterior grates
(Exhibit 12). He found an unsecured corner grate adjacent to the building,
which was held in place by its own weight and the exterior lip of the blacktop
surrounding two of the four sides. There were also angle irons on the inner
corner, closest to the building. Despite those conditions, Mr. Nowicki was able
to depress the grate corner approximately six inches. Mr. Nowicki then
authorized the SUNY grounds people to service the grate. When Mr. Nowicki
reached Claimant by telephone on December 2, 2002, Claimant confirmed the
general area where the grate was located, but was still unable to be more
specific (Exhibit 12).
Mr. Nowicki’s supervisor at the time, James A. Ditullio, Director of
Facilities Planning, testified and provided background information on the type
of grate that injured Claimant. Mr. Ditullio confirmed that Maxcy Hall was
built between 1970 and 1972, but his personal knowledge as to any improvements
and/or third parties working on Maxcy Hall extended only as far back as 1991.
He testified that, as far as he knew, no work was done on the grate in question
The building administrator and the person in charge of maintenance usually
conduct the annual inspections of the building facade, the brick, the roof and
entryways, doors and windows. Mr. Ditullio stated that the grating system was
normally not part of these inspections because the persons inspecting the
buildings “usually look up in the air.” He was not aware of any
form or checklist used during these inspections.
The grate itself was part of a plenum, which is a passageway that allows air to
travel in and around a building. Apparently, “active” plenums were
inspected once each year - an inspection separate and distinct from the annual
building inspections. Because the plenum’s purpose was to conduct air
into the ventilation and heating systems, the passageways were checked for
debris to make sure they were not blocked. Grates were lifted and dirt, leaves
and debris were removed and the grates reinstalled. Mr. Ditullio stated that
the grate in question was part of an “inactive plenum” and,
therefore, was not part of the annual inspection. And although he could speak
generally to the grating system in question, he had not personally observed this
grate until after the date of the accident.
Claimant called Hugh E. Hallenbeck, consulting architect, to give an opinion on
the mechanics of how the grate moved as well as an opinion on whether or not the
Defendant properly maintained the grate. He opined that, according to the State
Building Construction Code (Exh. 17, Table C 304-2.2), the grate ought to be
able to withstand a “live load” of 300 pounds per square foot, which
I understood to mean that an object weighing 300 pounds could stand on the grate
without a problem. Mr. Hallenbeck testified that the grate in question did not
meet this requirement. I find that Claimant weighed less than 300 pounds and
the grate failed to stay in place, causing Claimant to fall into the vault below
it. I note that such violations can be considered as evidence of negligence by
the trier of fact (Major v Waverly and Ogden, Inc., 7 NY2d 332).
Exhibits 9, 10, 11 and 13A
Claimant offered digital photographs of the scene, Exhibits 9, 10, 11 and 13A,
testifying that he took them in the presence of his wife and his children at a
time when snow was on the ground. Claimant testified that all of these
photographs were taken at the same time, a “couple of weeks” after
the accident on November 9, 2002. Although Claimant stated he took these
photographs a couple of weeks after the accident, these photographs were not
produced until March 16, 2004, after the Defendant’s June 2003 discovery
demand and Claimant’s deposition in this case.
It was not clear from the testimony and colloquy at trial, or from the
post-trial submissions, exactly when these photographs were taken. They could
have been taken a couple of weeks after the accident as Claimant stated, or they
could have been taken in 2004, when they were first produced to Defendant.
Claimant stated that Exhibits 10, 11 and 13A fairly and accurately depict the
grate location. Exhibit 9 depicts a closer view of the grate, which Claimant
stated was similar to the condition on the date of the accident, except for two
metal bands at the top. Finding that sufficient foundation had been
I took Exhibits 9, 10, 11 and 13A as
evidence, noting that Defendant’s arguments against admission into
evidence would go to the weight I accorded each photograph. I rely on Exhibits
9, 10, 11 and 13A to show the general location of the grate. I have not relied
upon these photographs as evidence of constructive notice or negligence.
Exhibits 13C, 13E, 13F, 13L, 13M, 13N, 13O and 13S
Claimant testified Exhibits 13C, 13E, 13F, 13L, 13M, 13N, 13O and 13S were
photographs taken by his attorney in 2004. I admitted these photographs into
evidence as they depict the general location of the grate and the construction
of the plenum. The photographs were taken too long after the date of the
accident to be evidence of any other issue in this case (Moore v Leaseway
Transp. Corp., 49 NY2d 720; Bornt v Town of Pittstown, 248 AD2d
Exhibit 18 is a manual produced by The University of the State of New York, The
State Education Department Office of Facilities Planning and Management
Services. Published originally in 1965, Exhibit 18 is a September 1996 version
and, as testified to by Mr. Hallenbeck, contained the standards applicable to
Maxcy Hall on the date of the accident. The manual states that the board of
education shall cause an annual “structural safety inspection” to be
made that includes an “inspection of exterior wall components, doors,
windows, retaining walls, roofs . . .” (Exhibit 18, p. 132). The
inspections are to be conducted in accordance with Section 409-d of the
Education Law, “Comprehensive public school building safety
program.” Section 409-d is part of Article 9 - “School Buildings
and Sites.” What is not clear to me, however, is Article 9's
applicability to the State University System.
Section 2 of the Education Law defines a “Board of education” as
the governing body for “a union free school district, central school
district, central high school district or of a city school district”
(§ 2). It does not appear to me that the annual safety inspections
required by Exhibit 18 are applicable to Defendant and , therefore, Claimant
cannot claim Defendant had constructive notice of the problem based on Exhibit
18. However, there was testimony at trial that the Defendant conducted a yearly
inspection of the buildings, but they primarily “looked up” and only
inspected ground facilities, like the plenum, that were then being used.
Defendant did not have actual notice of the problem. If Claimant is to prevail,
there must have been constructive notice.
Constructive notice exists where a dangerous condition is visible and apparent
and existed for a sufficient length of time prior to the accident to give
Defendant’s employees time to discover and remedy the problem (Gernat v
State of New York, Ct Cl, May 17, 2004 [Claim No. 104442], Minarik, J., UID
#2004-031-512). Constructive notice may be imputed if a diligent inspection
would have disclosed the defect (Quinn v Holiday Health & Fitness Ctrs.
of N.Y., Inc., 15 AD3d 857, 858, citing Lee v Bethel First Pentecostal
Church of Am., 304 AD2d 798, 800). Here, the grate was visible and apparent
and existed since the building opened in 1972. Defendant’s conducted
yearly inspections of the buildings and the active plenums. A diligent
inspection of the inactive plenums would have disclosed the defect that caused
the accident. I find Defendant had constructive notice of this dangerous
condition and that the condition of the grate was the proximate cause of
Claimant’s injury. I heard no proof at trial of any corresponding
negligence on Claimant’s part, therefore, Defendant is 100% liable. A
damages trial shall be scheduled as soon as practicable.
Let interlocutory judgment be entered accordingly.
Rochester, New York
HON. RENÉE FORGENSI MINARIK
of the Court of Claims
.The transcripts say between the building and
the grate, which does not make sense.
.Moore v Leaseway Transp. Corp
NY2d 720; Bornt v Town of Pittstown
, 248 AD2d 854.