CACCIATORE v. THE STATE OF NEW YORK, #2006-041-504, Claim No. 109721
Claimant is awarded judgment as to liability where the Court finds that a rug in
defendant’s office was in a defective condition, the defendant had notice
of the defective condition and the defective condition was the proximate cause
of claimant’s fall and resulting injuries.
MARY CACCIATORE AND FRANK CACCIATORE
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Frank P. Milano
Dell & Little, Esqs.By: Joseph G. Dell, Esq.
Hon. Eliot Spitzer, New York State Attorney
GeneralBy: Todd A. Schall, Assistant Attorney General
October 18, 2006
See also (multicaptioned
On July 6, 2004, while visiting the New York State Department of Motor
Vehicles (DMV) offices in Garden City, Mary Cacciatore (claimant), accompanied
by her husband Frank Cacciatore, tripped and fell, injuring herself. The day
was dry and sunny, and no conditions of wetness or slipperiness were implicated.
Mrs. Cacciatore, testifying credibly, stated that she, while exiting the
premises, tripped and fell after having caught her right foot on an area rug,
commonly known as a "runner", which had been positioned within the last set of
exterior doors, in a hallway area which led directly to the open DMV counter
space serving the public.
Mrs. Cacciatore testified that after falling she
observed that a piece of the rug's material was stuck to the right toe of her
sneaker-shod foot. She described the rug in question as "ripped" and
"shredded," and she further identified a specific rip in the rug, pointing to it
in a photograph of the rug in claimant's Exhibit 5 (E), as the area which caused
her to trip.
The rug itself, depicted in claimant's Exhibits 5 (A) through 5
(L) (all photographs), was admitted into evidence, without objection, as
claimant's Exhibit 6. It measures 33 inches wide by 148 inches long on one side
and 149 inches long on the other side (due to fraying). The rip or tear in the
rug, identified as the area over which claimant tripped, is 28.5 inches from the
nearest end of the rug and it extends 9 inches from the edge of the rug toward
the interior of the rug, running across the rug's width. Another tear, about 4
inches long, again extending widthwise from the rug's edge, is about 5 inches
closer to the rug's nearest end than the 9-inch tear, placing it 23.5 inches
from the nearest end of the rug.
Further testimony indicated DMV patrons
were traversing the rug across its width, not its length. Therefore, an
individual approaching from the edge of the rug from which the rips started
would be facing a broken line of fabric, an open-edged rug, with two tears. It
is at this location which claimant identified her right foot became caught, over
which she tripped, and which caused her to fall.
unable to specifically recall whether the tear in the rug was to her left or
right as she approached the rug, claimant testified she was not looking down at
the ground as she walked, but looking straight ahead.
other witness, her husband Frank, although at her side when she fell, did not
see what caused her to fall, but did observe her fall to her right knee and did
testify to the poor condition of the rug. He observed rips in the rug and
further said the rug "was very wavy."
There was inexact testimony
concerning the specific length of time the rug was in use at the Garden City DMV
office at the location of claimant's fall, with evidence suggesting the time
ranged from "less than a year" (trial testimony of Judith Ballas) to up to seven
years (Exhibit 4, deposition testimony of Anita Vollaro). On this point, the
Court credits the trial testimony of Anita Vollaro, a long-time DMV employee at
the Garden City office, who testified, as to the length of time the rug in
question had been in use at the Garden City DMV, "I would say that it was more
than a year." She stated she believed her deposition testimony was referring to
wall-to-wall carpeting, not area carpeting, such as the runner rug, to explain
her differing estimates of time.
“Having waived its sovereign
immunity, the State is subject to the same rules of liability as apply to
private citizens” (Preston v State of New York, 59 NY2d 997, 998
). “It is beyond dispute that landowners and business proprietors
have a duty to maintain their properties in reasonably safe condition”
(Di Ponzio v Riordan, 89 NY2d 578, 582 ; Jones-Barnes v
Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]). However,
“[w]hile the State clearly owes a duty to claimants and others entering
upon its property to maintain it in a reasonably safe condition under the
circumstances, it is not obligated to insure against every injury which may
occur” (Smith v State of New York, 260 AD2d 819, 820 [3d Dept
The State’s liability for a slip and fall is premised upon
proof that it either created the alleged dangerous condition or knew, or in the
exercise of reasonable care, should have known that a dangerous condition
existed but, nevertheless, failed to remedy the situation within a reasonable
time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept
2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v
State of New York, 188 AD2d 918, 919 [3d Dept 1992]).
Where there is
insufficient proof that the defendant created or had actual notice of the
condition, liability turns on the issue of whether defendant had constructive
notice. “To constitute constructive notice, a defect must 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 ; see, Moons v
Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v
State of New York, 186 AD2d 561), 562 [2d Dept 1992]).
In Bernstein v
Red Apple Supermarkets (227 AD2d 264 [1st Dept 1996], lv dismissed 89
NY2d 961 ), the court reversed a trial court’s decision to set aside
a jury verdict in favor of a plaintiff who had fallen after the heel of her shoe
became entangled in a torn rubber mat at defendant’s supermarket. Contrary
to the trial court’s decision finding the condition to be merely a
“slight tear” for which the defendant “may not be cast in
damages,” the appellate court cited testimony of the plaintiffs at trial
as showing that “there was an approximately one foot long slit or tear in
the carpeted floor mat at the entrance to the defendant's premises which caused
the plaintiff . . . to trip, fall and to sustain serious personal
injuries” (Bernstein, 227 AD2d at 265).
Here, the rug’s
condition was readily observable at trial and the probative value of that one
piece of evidence, as to its condition, outweighed the aggregate value of all of
the other evidence combined. Charitably characterized, the rug is, and was at
the time of the accident, in wretched condition. It was filthy, worn,
threadbare, badly frayed, torn and ripped. If a well conditioned, appropriately
maintained rug were a hearty stew, claimant's Exhibit 6 would be thin
gruel. Beyond its exceedingly poor condition, the rug laid flat on a vinyl
floor, subject to bunching, without any rubber backing and unaffixed to the
floor in any way.
Moreover, any attempt by defendant to characterize the
defects in the rug as ‘trivial’ is belied by simple observation of
the rug's condition.
The Court finds the rug in question to have been in
use at the location of claimant's fall at the Garden City DMV office for in
excess of one year. Further, given the condition of the rug as it existed on
July 6, 2004, a seriously degraded condition, the Court finds, due both to the
variety and number of defects and further, to the advanced nature of the defects
themselves at the time of claimant's accident, that the defects which then
existed, the wear, tears, rips, and fraying, had existed for a lengthy period of
time prior to July 6, 2004. Accordingly, the defendant had notice of the
dangerous condition presented by the rug, which condition caused claimant's
Notwithstanding the defendant's several attempts to disavow
responsibility for the placement or care of the rug in question, the Court finds
the defendant to have exercised exclusive control over the rug. This was
demonstrated in several ways.
Initially, it should be noted DMV was the
sole occupant of the entire building, which was the site of claimant's fall.
Moreover, the landlord, the owner of the premises, had no on-site presence
whatsoever. The landlord was entirely absent, without so much as an office or
an employee on site.
It has been long recognized “that the person in
possession and control of property is best able to identify and prevent any harm
to others . . . . Indeed, a person who chooses to take possession and control of
property is fairly charged with the responsibility of maintaining it and should
expect to be held responsible for any defects” (Butler v Rafferty,
100 NY2d 265, 270 ). For that reason, “[a]n out-of-possession
landlord is not liable for injuries that occur on the premises after the
transfer of possession and control to a tenant unless the landlord (1) is
contractually obligated to repair the premises or (2) has reserved the right to
enter the premises to make repairs, and liability is based on a significant
structural or design defect that violates a specific statutory safety
provision” (Reichberg v Lemel, 29 AD3d 664, 665 [2d Dept 2006]).
Here, the lease between the landlord and DMV required the out-of possession
landlord to provide janitorial services (defendant’s Exhibit B, Lease
§ 12) and to make repairs “to put and keep the premises, fixtures and
appurtenances in good order and condition . . . except repairs required as a
result of the negligence of the Tenant” (Lease § 13a). Neither of
these lease provisions was persuasively demonstrated to apply to the unaffixed
runner rug (as opposed to the installed wall-to-wall carpeting). Further, the
rug did not involve the structure, fixtures or appurtenances of the building,
but rather represented an interior design choice over which the DMV exercised
exclusive control (see Brockington v Brookfield Development Corp.,
20 AD3d 382, 383 [2d Dept 2005]).
To that point, demonstrating DMV’s
ability to exercise control over the rug in question, which the Court finds DMV
chose to exercise, § 28 of the Lease (defendant’s Exhibit B),
entitled, "ALTERATIONS BY TENANT," reads, "It is understood and agreed by and
between the parties hereto that during the Lease period, renewal period,
extension or holdover period the Tenant reserves the right to make minor
alterations or installations, such as carpeting, installation of telephone and
related equipment, etc."
Upon cross-examination, defendant’s witness
Judith Ballas, the most senior DMV employee on site, and as manager of the
premises, responsible for its operation, in response to a question about the
rug, "They [DMV supervisory staff] would remove it periodically and put a new
carpet in place, right?" answered, "Yes, sir."
Finally, once the claimant's
accident occurred, DMV took it upon itself, without any involvement of the
landlord, to replace the rug and to purchase a new rug, buying it through a DMV
procurement program, using DMV funds to buy the replacement rug. While the Court
recognizes that evidence of subsequent remedial measures are generally
inadmissible in a negligence case, such evidence may be considered where there
is an issue of maintenance or control (Niemann v Luca, 214 AD2d 658, 658
[2nd Dept 1995]; Cleland v 60-02 Woodside Corp., 221 AD2d 307, 308 [2nd
The Court has considered the subsequent measures taken by DMV
for that limited purpose only. In fact, evidence of subsequent remedial measures
was admitted in a remarkably similar case, also involving a dispute over control
of a torn carpet which caused a plaintiff’s injuries. In DeRoche v
Methodist Hosp. of Brooklyn (249 AD2d 438, 439 [2nd Dept 1998]), it was the
defendant landlord seeking to introduce evidence of subsequent remedial measures
taken by a tenant. The court explained that:
“[T]he defendant admitted that it was responsible for the maintenance of
the leased premises, but denied that its duty to maintain the premises
encompassed repair or replacement of the carpeting installed by [the tenant].
Moreover, the lease which was in effect on the date of the plaintiff’s
accident did not clearly define the scope of the defendant's maintenance
responsibilities, or make any specific reference to the carpeting. Under these
circumstances, the defendant should have been permitted to elicit evidence that
[the tenant] repaired or replaced the carpeting after the plaintiff's
Although the Court finds the defendant failed in its
responsibility to provide the public, in a public space at the Garden City DMV,
an area free of a dangerous or defective condition, and therefore finds the
defendant liable, the Court also finds the claimant contributed to her fall.
The claimant failed to observe the rug prior to her fall, having testified to
looking straight ahead, not down, as she crossed and ultimately tripped on the
torn and ripped rug. To the extent claimant failed to see what was plainly
there to be seen, and to avoid the dangerous condition defendant permitted, a
badly worn, torn rug, in a heavily traveled pedestrian hallway, the Court finds
claimant to have been partially responsible for her fall.
recognizes, and common experience validates, people do not, nor should they,
walk about, eyes cast exclusively downward, affixed to the ground, to navigate.
However, the use of long range vision, peripheral vision and an occasional
glance down, are all part of walking about safely, and part of avoiding missteps
or tripping. Accordingly, the Court finds the claimant to be 10% responsible,
and defendant 90% responsible, for claimant’s fall and ensuing
All motions not previously decided are hereby denied.
interlocutory judgment be entered accordingly.
The claim will be
conferenced by telephone on November 9, 2006 at 10:30 a.m. for the purpose of
scheduling a trial as to damages as well as any further disclosure proceedings
related to claimants’ damages. The Court will initiate the telephone
October 18, 2006
HON. FRANK P. MILANO
Judge of the Court of Claims