New York State Court of Claims

New York State Court of Claims

BEREZNY v. THE STATE OF NEW YORK, #2007-045-504, Claim No. 111119


Synopsis


trial decision, clmt. in a wheelchair pushed in the crosswalk allegedly struck a defective condition. defs. verdict, claim dismissed.

Case Information

UID:
2007-045-504
Claimant(s):
HELEN BEREZNY
Claimant short name:
BEREZNY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111119
Motion number(s):

Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Harriet A. Gilliam, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: John M. Shields, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 27, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

A bifurcated trial concerning solely the issue of liability was held in this matter on July 7, 2007. Claimant, Mrs. Helen Berezny, was approximately 88 years of age at the time of the trial and resided at the Westhampton Care Facility. Due to her age and overall physical condition she was unable to attend the trial. Linda Ann Berezny, claimant’s daughter, testified at trial that on July 10, 2004 she drove claimant to the Town of Riverhead with the intention of taking her mother to lunch at a restaurant located on Main Street (also known as State Route 25). Ms. Berezny could not recall exactly where she parked that day but could recall that she arrived in the area between 10:30 and 11:00 a.m. She described the weather at that time as being sunny and clear without precipitation.


Ms. Berezny assisted claimant into a wheelchair from her vehicle. She then proceeded to push claimant in her wheelchair southbound on the easterly sidewalk of Roanoke Avenue toward Main Street. Ms. Berezny claims to have had no difficulty in operating the wheelchair prior to the subject accident. They approached the northeast corner of Roanoke Avenue at its intersection with Main Street where she noticed a traffic light, a crosswalk marked by two white lines and a crosswalk signal light. She explained that there was also a ramp leading to the crosswalk from the sidewalk.

She stated that she stopped at the corner, waited for the traffic light to be in her favor and then backed claimant down the ramp to the street. She then turned claimant around to proceed across the street. She stated that she had no difficulty backing down the ramp or turning the wheelchair around. She described a “little upgrade” in the street as she crossed Main Street.

Ms. Berezny testified that she traveled approximately three or four steps into the crosswalk when the wheelchair came to a “dead stop.” At that moment claimant then slid out of the wheelchair and onto the street. She testified that there “had to be” a roadway condition to make the wheelchair stop. Ms. Berezny continued that a hole in the pavement caused the

wheelchair to stop. However, on redirect she stated that she did not have any “knowledge” of a hole or a pothole in the roadway. She then explained that “the only thing that would make the wheelchair stop like that would be an indentation in the road, a hole in the road because you could not push it.” Ms. Berezny testified that she had never taken claimant across the crosswalk in the wheelchair prior to the accident.

Ellen Kramer, claimant’s other daughter, also testified at trial that on July 10, 2004 it was a nice clear day. Ms. Kramer first saw her sister and claimant on that day at 10:30 a.m. while she was standing on the south side of Main Street facing north at its intersection with Roanoke Avenue. She observed her sister pushing claimant in a wheelchair on the sidewalk of Roanoke Avenue and coming to a stop at the northeast corner of Roanoke Avenue at its intersection with Main Street. She then watched her sister turn the wheelchair around, back it down a ramp, turn it around again and push it forward into the crosswalk without any difficulty. She then saw her sister take three or four “normal” steps when the wheelchair “jerk[ed]” and her mother slid out of it. Ms. Kramer describes the right front wheel of her mother’s wheelchair as having stopped and “went towards the right” when her mother slipped out of the wheelchair. She stated that the wheelchair tilted but did not fall over.

Ms. Kramer went directly to her mother in the street when she saw her fall. While there she observed that the right front wheel of her mother’s wheelchair was lodged in a hole in the crosswalk. She further described the hole as “not a huge hole.” Ms. Kramer was unable to estimate the depth of the hole or to provide any further description of the hole except to state that “it was not a huge hole but it was big enough for that wheel to be in there.”

Due to claimant’s limited physical condition and age, her deposition transcript was admitted, without objection, into evidence pursuant to CPLR 3117 (a)(3)(iii), which permits the use of a party’s transcript when “the witness is unable to attend or testify because of age, sickness, infirmity or imprisonment.”

Claimant, Mrs. Helen Berezny, testified at her deposition that on the date of her fall she was using a wheelchair and resided in the Westhampton Care Facility. She described having breakfast and lunch at the facility before eventually being taken by her daughter and son-in-law to Riverhead for dinner. She estimated that she left the facility in her daughter’s vehicle between 5:00 and 5:30 p.m. that evening. After parking on Roanoke Avenue and getting into her wheelchair, her daughter pushed her along Roanoke Avenue until they reached the intersection with Main Street. Her daughter backed her down into the street and then turned her back around to proceed across the street. Claimant stated that there was no ramp at that corner. She explained that as they started to proceed across the street the front of the wheelchair went “down into a pothole or something, and I went down.” Claimant testified that she did not slide all the way out of the wheelchair at that time but actually remained in the wheelchair as it turned over on its right side. Claimant asserted that while she was on the ground she did not have an opportunity to observe the area where she fell.

Mr. Jeffrey Fried, a New York State Department of Transportation Highway Maintenance Supervisor, was called to testify at trial by claimant. Mr. Fried has been employed by the New York State Department of Transportation for approximately thirty years. He stated that at the time of the incident, he was responsible for supervising all of the State roadways in the Towns of Riverhead, Southhold and Shelter Island. His responsibilities included maintaining the pavement, road signs and water drainage on the State roadways. He stated that he would drive along the roadways once a week to make a visual inspection of the roadways for potholes. He explained that there was a Foreman’s Daily Report (also known as a Supervisor’s Daily Report) kept by his department which would reflect any activity concerning the filling of potholes in a State roadway on a particular day. The materials used to fill the potholes would also be memorialized in a Foreman’s Daily Report. He stated that potholes in the area where the subject accident took place would be filled with either cold or hot asphalt depending on the availability of the hot asphalt. He considered the hot asphalt to be a more durable repair to the roadway. He opined that the hot asphalt repair lasted longer than the cold asphalt repair but did not present a time frame for the longevity of either method of repair. He explained that cold asphalt repairs are used on a regular basis due to limited availability of the hot asphalt. Mr. Fried then identified claimant’s exhibit seven as his Foreman’s Daily Report for May 20, 2004. The report reflects the pothole repairs to State Route 25 which occurred on that date in the Riverhead area. The area where the subject accident took place was encompassed by the report. Mr. Fried explained that the entire report covers a six-mile section of the roadway and indicates that eighteen potholes were repaired with a cold asphalt repair on May 20, 2004. Mr. Fried stated that the roadway was last repaved in 1986 and that the crosswalk in question has not been the subject of any major reconstruction or repaving since 1986. He stated that he was not aware of any complaints, incidents or injuries regarding the crosswalk other than the subject incident.

The State of New York has a duty to maintain its roadways in a reasonably safe condition and the breach of that duty can result in liability to the defendant if the ascribed negligence in maintaining the road is a proximate cause of the accident (Friedman v State of New York, 67 NY2d 271 [1986]). However, defendant is not an insurer of the safety of its roadways and the mere fact that an accident resulting in injury occurred does not render defendant liable (Tomassi v Town of Union, 46 NY2d 91 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]). In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take reasonable measures to correct the condition (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see also Brooks v New York State Thruway Auth., supra at 768; Pesce v City of New York, 147 AD2d 537 [2d Dept 1989]). When an allegedly dangerous condition is at issue, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy the dangerous condition. To establish constructive notice, the “defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit ...[a defendant] to discover and remedy it ...” (see Gordon, 67 NY2d at 837 [citations omitted]).

“[W]hether [or not] a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case... [T]he width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury” are all factors to be taken into consideration when analyzing whether the defect was a dangerous condition so as to create liability (Trincere v County of Suffolk, 90 NY2d 976, 977-978 [1997] [internal quotation marks and citations omitted]).

Claimant has failed to prove that a dangerous condition existed in the crosswalk at the time of the accident. The various descriptions of the alleged hole or depression elicited did not inform the Court as to the actual size or dimensions of the defect. One witness, Ms. Kramer, testified that the “right front wheel was lodged in a hole” and that it was “not a huge hole.” However, there was no evidence presented which would establish the dimensions of the right front wheel of the wheelchair. Ms. Linda Berezny testified that there “had to be” a roadway condition to make the wheelchair stop. Ms. Berezny continued that a hole in the pavement caused the wheelchair to stop. However, on redirect she stated that she did not have any “knowledge” of a hole or a pothole in the roadway. She then explained that “the only thing that would make the wheelchair stop like that would be an indentation in the road, a hole in the road because you could not push it.” The claimant’s testimony was that her wheelchair went “down in a pothole or something” and that she did not have an opportunity to observe the area where she fell. Claimant presented no evidence quantifying the extent of the alleged defect.

The Court also notes that claimant’s testimony as to the time of the incident is inconsistent with that of her daughters. Claimant stated that she was on her way to dinner between 5:00 and 5:30 p.m. when the accident occurred while her daughters contend that the accident happened between 10:30 and 11:00 a.m. on their way to lunch. The ambulance call report lists the call being received at 10:23 a.m. Claimant’s daughters also described a ramp leading down to the roadway while claimant stated that there was no ramp. As to the exact location of the defect, there were again some inconsistencies. Claimant’s testimony suggested that she fell almost immediately after her daughter turned her around to proceed across the street. Her daughters testified that Linda Berezny took three or four steps into the crosswalk before the wheelchair stopped. Linda Berezny’s testimony places them past the parking lane at the time of the fall. The witnesses testified that there was a marked and lined crosswalk, but there was no testimony with regard to whether the defect was in the painted, unpainted or combined portion of the crosswalk.

The totality of the evidence fails to establish that a dangerous defective condition existed on the roadway so as to create liability.

Assuming arguendo that there was a defective condition in the roadway which constituted a dangerous condition, notice of the condition to defendant has not been established in this matter. Defendant repaired eighteen potholes along six miles of Route 25 with cold asphalt patches on May 20, 2004. However, there was no evidence presented to suggest that the defendant knew of a specific pothole along Route 25 in the crosswalk in question at the intersection of Main Street and Roanoke Avenue. The evidence established that Jeffrey Fried, a Highway Maintenance Supervisor responsible for over two-hundred lane miles of roadway, would drive along the roadway in issue once a week to make a visual inspection of it for potholes and other defects. Mr. Fried did not observe a pothole in the roadway in the subject crosswalk prior to claimant’s accident. This type of routine inspection also does not constitute the kind of specific inspection, focused upon the area in question, required to justify the finding of constructive notice (Brzytwa-Wojdat v Town of Rockland, 256 AD 2d 873, 874 [3d Dept 1998]). Although the area is a highly trafficked area which would increase the likelihood of potholes, a “general awareness” that a dangerous condition may be present is legally insufficient to constitute notice of the particular condition (Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 [1994]). Additionally, the Court notes that there were no previous complaints regarding a defective condition and no record of prior accidents in the area in question.

Finally, much has been made by claimant that the hot asphalt patch used to repair a pothole is permanent while the cold asphalt patch is temporary. Claimant asserts that by choosing a temporary measure and not revisiting the condition to secure a permanent repair, defendant failed to take appropriate measures to correct the defect. The evidence established through the testimony of Jeffrey Fried was that potholes would be filled using either hot or cold asphalt depending primarily upon availability. The record reflects that the hot asphalt patch is considered a more desirable repair. However Mr. Fried also testified that the cold asphalt patch is used on a regular basis and no time frame was established which would indicate the longevity of either method. The potholes on Route 25 were filled on May 20, 2004 and the incident occurred on July 10, 2004. However, no credible evidence has been presented that would establish that a cold asphalt patch was used to repair a pothole in the subject crosswalk or that if such a repair had been made, it would have lasted less than two months.

Thus, the Court finds that claimant has failed to show that defendant had notice of or created a dangerous condition in the crosswalk in question. Claimant has also failed to establish that the use of cold asphalt patches was an inappropriate or unreasonable method to repair potholes in the roadway.

Therefore, based on the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, her claim against defendant in this action. Accordingly, the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.

The Clerk of the Court of Claims is directed to enter judgment accordingly.


September 27, 2007
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims