New York State Court of Claims

New York State Court of Claims

KROLL v. THE STATE OF NEW YORK, #2007-016-012, Claim No. 108261


Case Information

1 1.The caption has been amended to reflect the correct spelling of claimant’s name.
Claimant short name:
Footnote (claimant name) :
The caption has been amended to reflect the correct spelling of claimant’s name.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Koval, Rejtig & Dean, PLLCby: Christopher Dean, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney Generalby: Joseph Paterno, AAG
Third-party defendant’s attorney:

Signature date:
April 17, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the decision following the liability trial of Elizabeth Krol’s claim that her trip and fall on September 6, 2000 was caused by the negligence of the defendant State of New York. The accident occurred on the premises of a unit of the State’s Office of Mental Retardation and Developmental Disabilities (OMRDD) in Staten Island, specifically its Institute of Basic Research (IBR) on Forest Hill Road. Ms. Kroll, an engineer, was employed by the Dormitory Authority of the State of New York as a field representative who inspected and oversaw construction that the Authority was performing for OMRDD.

There are a number of issues that arise from the role of the Dormitory Authority. Defendant contends, inconsistently, that Kroll’s claim against defendant cannot succeed because: i) her sole remedy lies under workers’ compensation since the Dormitory Authority as a “public authority is deemed to be a State agency;” and ii) the Dormitory Authority is the owner of the subject premises and it, not OMRDD, is responsible for making any repairs. (See the third and fourth unnumbered pages of defendant’s Post-Trial Submission of Cases).

The Dormitory Authority is a public benefit corporation empowered to design, construct and reconstruct a broad range of structures used for public purposes, and has the power to appoint its officers and employees. (Public Authorities Law §§1677 & 1678). Employees of the Dormitory Authority are not employees of the State of New York for purposes of the workers’ compensation law. No facts have been adduced to suggest otherwise, for example akin to those of Craig v State of New York, 261 AD2d 683, 690 NYS2d 167 (3d Dept 1999) lv denied 94 NY2d 752, 700 NYS2d 426 (1999), which related to the operations of a particular site for skiing. See Facilities Developmental Corp. v Miletta, 246 AD2d 869, 667 NYS2d 805 (3d Dept 1998), and Maric Mechanical, Inc. v State of New York, 145 Misc 2d 287, 546 NYS2d 525 (Ct Cl 1989).[2]

As for defendant’s second contention, this case turns to a large extent on the difference between in-house maintenance or minor repairs that could have been performed by OMRDD and construction or reconstruction that was within the province of the Dormitory Authority.

In September of 2000, claimant had been employed by the Dormitory Authority for 13 years, and had been assigned for three to four years overseeing construction that the Dormitory Authority was doing at the Staten Island site of OMRDD. Kroll’s Dormitory Authority office was about a half mile from Building One of OMRDD’s Institute of Basic Research.

On the day of the accident, claimant was walking over to Building One to give Bruce Gundry some specifications and drawings for a project. Gundry, an OMRDD employee, has been plant superintendent for IBR since 1992 and the contact person for the work that the Authority did for the Institute. The weather was good that September day; had it not been, claimant noted, she would have driven to Gundry’s office.

Claimant approached the front of the building (def exhs C and D) and as she was walking towards the entrance, “[m]y foot got caught and I fell . . . on my knees and on my hands . . . I fell forward.” Kroll could not get up without help. She testified that she did not see the defect before she fell, but once she was helped up, “I looked back, what’s going on - - why I fell, what was the reason, and I see this hole which was in the concrete.”

The only other witness who took the stand at trial was Mr. Gundry. He described the surface of the entrance area of Building One as made up of “pavers” (similar to cobblestones) - - “individual pieces that were approximately ten, twelve inches long by about four inches wide, I guess about an inch deep.” Visible in the photographs is a concrete strip that divides the entrance space into two areas of pavers. There is also another concrete strip perpendicular to the main concrete strip, but that is not relevant here.

Gundry was unsure whether the concrete strip was part of the original construction or was added later, but in any event said that it was apparently a response to the fact that the two areas were not on the same plane. The downward slope of the concrete strip can clearly be seen in defendant’s exhibits D, E and F. In addition, the concrete strip was not intact; it was cracked and broken, although there was some patching. The broken area was where Kroll fell; Claimant circled the spot on several photographs (cl exhs 1 -3, def exh F ).
For a claimant to prevail on an accident of this kind, as a threshold matter, she must prove that the proximate cause of her fall was a dangerous or defective condition. We did not receive evidence as to the dimensions on the defect, either in testimony or via, for example, the placement of a ruler in one of the photographs. With that said, there is no minimum dimension test that a condition must satisfy to be considered dangerous or defective; such depends upon the facts and circumstances of each case. Trincere v County of Suffolk, 90 NY2d 976, 665 NYS2d 615 (1997).

Ms. Kroll was no-nonsense; she did not try to embellish what happened to her. I found her to be credible; I accept her testimony that her “foot got caught.” To this trier of fact, in view of the testimony and the photographs, the place where claimant tripped was a dangerous condition. In fact, Superintendent Gundry said that while he was not sure how deep the crack was, it went beyond the top surface and thus needed repair.

In sum, the proximate cause and dangerous condition predicates have been satisfied. Furthermore, the defendant had notice of the condition. Gundry was aware of it. In addition, in claimant’s exhibits four and five, documents from December of 1999, OMRDD requested that the Dormitory Authority design and have built a replacement for, inter alia, the main entrance to Building One. It is replacement and not repair because the surfaces have settled (cl exh 5). Gundry pointed out that these documents were generated in Albany, but in any event they necessarily comprehend notice on the part of the defendant.

The letter that is exhibit 4, which is from an official with the Property Services Unit of OMRDD in Albany to the Senior Director of the Project Management Unit of the Dormitory Authority, initiated the process of reconstruction. We cannot say – and there was no evidence directly adduced thereon - - that the project should have been completed by September 6, 2000 and if so, whether defendant would bear any responsibility therefor.

This case is analogous to a roof that leaks onto an area where people traverse. The roof must be repaired, but that will take some time. In the interim, persons should be warned, directed away or otherwise protected. In the case at bar, these measures would not be costly in terms of money or time (see PJI 2:12). Cones, sawhorses or the like could have been put in place and/or some sort of temporary covering laid down.

As Gundry testified, the area was maintained by OMRDD; in 2000, the superintendent had six departments reporting to him, including the Maintenance Department and the Grounds Maintenance Department. Gundry’s staff included a mason who could have patched the cracked concrete areas until the larger project was underway.

In view of the foregoing, I find that defendant was negligently responsible for the fall of claimant. But that is not the end of the inquiry here; the comparative negligence of claimant must be considered. This was a condition that was known to claimant. Ms. Kroll would go to the subject premises “sometimes twice a week. Sometimes . . . once in two weeks,” and in fact had visited the building earlier on the day of her accident. Moreover, Kroll worked on the reconstruction project (see def exh I). I conclude that claimant must bear the majority of responsibility for her accident -- 75%.

In sum, I find defendant State of New York 25% liable for Elizabeth Kroll’s trip and fall on September 6, 2000 and any injuries resulting therefrom. A trial on damages will be scheduled by the Court.

April 17, 2007
New York, New York

Judge of the Court of Claims

[2]. The Facilities Development Corporation was absorbed into the Dormitory Authority by Chapter 83 of the Laws of 1995 (§177).