New York State Court of Claims

New York State Court of Claims

CARDINALE v. THE STATE OF NEW YORK, #2006-033-562, Claim No. 108839


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):

James J. Lack
Claimant’s attorney:
Kelly & Grossman, LLP
By: David C. Grossman, Esq. andBenjamin Katz, Esq.
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 29, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

This is a timely filed claim for damages by Joseph D. Cardinale (hereinafter “claimant”) based upon the alleged negligence of the defendant. The bifurcated trial of this claim was on February 14, 2006, on the issue of liability.
On March 6, 2001, at approximately 7:30 a.m., claimant was walking along Sunrise Highway a/k/a State Route 27, Freeport, New York. Just prior to claimant’s accident, snow and freezing rain were falling in this area. Claimant was on the sidewalk and heading east. Claimant’s Exhibit 18 contains two photographs. The top photograph shows the intersection of Columbus Avenue and Sunrise Highway. As claimant came to the intersection with Columbus Avenue, he noticed a large snowbank piled at the corner of the intersection. Looking at the top photograph, claimant is moving to the left in the picture, putting him further down Columbus Avenue. Claimant testified that there was snow and ice on the ground and freezing rain was falling at the time of his accident. After stepping off the curb and crossing Columbus Avenue, claimant tripped and fell. According to claimant’s trial testimony, he felt his toes go into a hole and his foot got stuck in the hole. Claimant looked back to see what he tripped on and saw a cracked and broken traffic signal pull box cover, as depicted in the bottom photograph of Exhibit 18. During cross-examination, claimant admitted that he never saw what he fell on.
In further support of claimant’s case, claimant read the deposition testimony of Douglas Gensinger, the New York State Department of Transportation records officer. However, during his deposition, Gensinger testified that he did not believe the pull box cover belonged to the State of New York. The cover did not look like a New York State cover and it was not in a typical location for the State’s pull boxes.
Claimant also called Eric Huckstadt, an engineer with the New York State Department of Transportation in charge of traffic signal maintenance and mechanics. Huckstadt’s testimony mirrored that of Gensinger. Huckstadt visited the accident location and inspected the pull box. The pull box was empty and it did not appear to belong to the State of New York. The cover (including the replacement cover on at the time of the witness’s visit) did not belong to the State. The witness also testified that this was not the typical location for a State pull box, especially because Columbus Avenue was not a State maintained road.
Claimant rested after the testimony of Huckstadt. Defendant presented no witnesses.
It is incumbent upon claimant to establish: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant’s accident; and that damages were sustained (Gordon v American Museum of Natural History, 67 NY2d 836).
Prior to proving the above, claimant must show that the defendant had jurisdiction over the condition which existed or the area where the accident occurred.
In the instant case, there is an utter lack of evidence to show defendant had any responsibility at the accident site. Claimant testified that he was on Columbus Avenue at the time that he fell. There is doubt as to how claimant’s accident occurred. At trial, claimant was clear that he fell because of the cracked pull box cover. However, he admits the roadway was covered with snow and ice. At his deposition, claimant was not sure what caused his fall.
Assuming arguendo, the Court believed that claimant fell due to the pull box cover, there is no testimony to show that the pull box belonged to defendant or that defendant was responsible for the maintenance of the pull box.
The Court finds that claimant’s accident happened on Columbus Avenue and defendant had no maintenance responsibility for the roadway. Further, the Court finds that claimant has failed to prove that the pull box claimant allegedly tripped over belonged to defendant or that defendant had any maintenance responsibility for it.
Accordingly, the Court finds in favor of defendant and dismisses the claim. The Clerk of the Court is directed to close the file. All motions not specifically ruled upon are denied.
Let judgment be entered accordingly.

September 29, 2006
Hauppauge, New York

Judge of the Court of Claims