New York State Court of Claims

New York State Court of Claims

DESOYE v. THE STATE OF NEW YORK, #2008-010-011, Claim No. 111003


Bicycle drop-off was not of significant depth to pose foreseeably dangerous condition.

Case Information

1 1.The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
HENDERSON & BRENNANBy: John T. Brennan, Esq.
Defendant’s attorney:
Attorney General for the State of New YorkBy:
Vincent M. Cascio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 6, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries she sustained on June 26, 2004 when she was riding her bicycle northbound on the Hudson River Bikeway on Route 9D in Putnam County. It was a clear sunny day. Claimant was riding on the 2½-foot-wide shoulder when her front tire hit a ridge or drop-off of approximately two inches. Claimant’s bicycle went into the gutter and claimant was thrown to the ground. Claimant contends that her accident was due to defendant’s failure to correct the drop-off between the shoulder and the gutter. Defendant argues that the drop-off was not hazardous and, moreover, was not the proximate cause of claimant’s accident. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Claimant testified that she and her fianc
, Bill King, had engaged in 30-mile bike rides as a shared hobby during the past 1½ years. However, they had never been on this route prior to claimant’s accident. On June 26, 2004, claimant was riding a 10-speed Bianchi bicycle, with flat handlebars, hand brakes, and 26-inch wheels. She described her bicycle as a hybrid mountain and racing bike. Claimant was wearing a helmet, bicycle shoes, padded pants and a shirt.

Route 9D is a two-lane road with a 10-foot-wide travel lane in each direction. For the first five miles claimant and King traveled northbound through rural areas where the travel lanes were bordered by 2½-foot-wide shoulders. Claimant rode behind King in the middle of the shoulder. In the Village of Cold Spring the shoulder widened to 6 feet. At the intersection with Route 301, the shoulder narrowed to approximately 5½ feet. A few blocks after the intersection, at Whitehill Place, the shoulder narrowed again and measured 2½ feet wide. Adjacent to the shoulder was a paved gutter.

Claimant described the road between the intersection and Whitehill Place as level with moderate traffic in the northbound lane. Claimant testified that within three seconds of approaching Whitehill Place, while riding at a speed of 15 mph, “[a]ll of a sudden, my front tire hit a ridge and my bike went one way and I went another” (T:33).[2] Claimant landed on the ground. She observed a drop-off which she estimated to be approximately six inches (T:35).[3] Photographs of the drop-off (Exs. 11-13, 16) and a videotape of the area (Ex. UU) were received into evidence.

Claimant recounted that she was looking straight ahead as she rode and did not notice the width of the shoulder change or any difference in the coloration between the shoulder and the gutter. The photographs received into evidence depict the gutter as a different color (Exs. 11-13); however claimant maintained that this was obscured by noontime shadows. Although claimant was approaching a downward incline, she did not brake or take any action to reduce her speed. Her accident occurred 60 feet beyond Whitehill Place.

In the area of claimant’s accident, Route 9D had been resurfaced in the fall of 2003 pursuant to New York State contracts with Paleen Construction Corporation and A. Colarusso and Son, Inc.[4] The contracts were characterized as “mill and fill” repaving projects which involved the removal and replacement of 40 millimeters of asphalt on approximately one mile of Route 9D (T:139). The contracts provided for paving edge-to-edge or curb-to-curb. There was no provision for paving the gutters or widening the shoulders.

Patrick J. Gigliotti testified that he has been employed by Paleen Construction for 22 years and was the general foreman for the road repaving project. In the course of his work, he noted a drop-off from the shoulder. Gigliotti testified that this drop-off was a concern because it would make it difficult for a car that had left the roadway to return to the roadway. He voiced his concern to the New York State Engineer-In-Charge, Christopher Cox, and requested permission to fill in the gutter area, which would have required 10 tons of material. Permission was denied.

Although, the New York State Inspector’s Daily Report, dated October 7, 2004, indicates that Paleen paved various driveways and “[r]epaired drop-off at edge of pavement along gutters” (Ex. 9), Gigliotti did not recall performing any drop-off repairs. When shown photographs evidencing ramping adjacent to the shoulder (Ex. 12), Gigliotti conceded that the color of the ramped surface matched the asphalt laid by his company.

Patrick’s father, Pasquale Gigliotti, testified that he is the president of Paleen Construction and was also concerned that the “sharp” drop-off would create a difficulty for motorists who had driven off the road and would be attempting to return to the roadway (T:142-43). Pasquale did not realize at the time of the paving that 9D was a bicycle route, but at trial he testified that the drop-off would be more of a concern for bicyclists (T:144). Pasquale conveyed his sentiments to the State and his desire to create a new gutter. Pasquale, however, was not given the necessary authorization to perform the work. When asked to examine the photograph that appeared to evidence ramping in the same color as the asphalt put down by Paleen, Pasquale testified that he could not discern who had added the material.

There was no documentation of the alleged conversations between the State and the Gigliottis regarding their purported concerns about the drop-off and the danger it posed. Despite the Gigliottis’ denials of performing any work on the drop-off, the only documentation referring to the drop-off is to the contrary and indicates that repairs were made by Paleen (Ex. 9). The testimony of both Gigliottis was self-serving and appeared tailored to Paleen’s position as a defendant in the Supreme Court action involving this same accident.

Brian O’Rourke, the Director of Traffic Engineering in the City of Yonkers, testified that he has a bachelor’s and a master’s degree in civil engineering from Manhattan College and has been employed in the private and public sectors. He offered expert testimony on behalf of claimant.

O’Rourke agreed with the Gigliottis that the drop-off was a concern and that the gutter should have been paved. He testified that there should have been a smooth transition from the white edge line on the road to the end of the asphalt. O’Rourke emphasized that when a drop-off is too extreme, it creates a danger that a vehicle might catch its wheel. He further opined that the drop-off created a hazardous condition for bicyclists. He explained that 9D was a shared road between bicyclists and motorists and that the 10-foot travel lane for motorists left only 1 foot for bicyclists. Thus, bicyclists would be forced onto the 2½-foot-wide shoulder.

O’Rourke also noted that the 6-foot shoulder had narrowed to 2½ feet right before the accident site and this was an additional problem because it created a “violation of expectation,” i.e., a bicyclist would presume that the riding conditions would remain constant but, instead the roadway narrowed and sloped (T:205). Additionally, a bicyclist was faced with what O’Rourke described as “intrinsic camouflage” due to the shadows on the road (id.). O’Rourke explained that the colorations made the surfaces of the shoulder and gutter appear to be on the same level. The change occurred abruptly, within 60 feet of claimant’s accident. Therefore, claimant, who was traveling at approximately 15 mph, had less than three seconds to react to the varied conditions.

O’Rourke concluded that the drop-off was the proximate cause of claimant’s accident. In his view, the State should have repaved the gutter as suggested by the Gigliottis and provided a smooth transition from the shoulder to the gutter. He also testified that the standards set forth in Chapter 18 of the Highway Design Manual applied to this situation and the resurfacing project.

O’Rourke conceded, however, that claimant’s testimony estimating the drop-off to be six inches was incorrect as he had measured the drop-off to be no more than two inches (T:182-84, 231, 233-35). He also conceded that the drop-off was not vertical; it was ramped or tapered (T:237-38).

Michael K. Temple testified that he has been employed by the New York State Department of Transportation (DOT) since 1984 and, at the time of the accident, he was the Design Manager for maintenance projects in the DOT Poughkeepsie Office. In this position, he oversaw the design of annual maintenance projects including paving in the area of the accident. At trial, he reviewed the documents relating to the 2003 repaving on Route 9D (Exs. 1-4). He explained that the work was let to an outside vender to remove the existing overlay and then resurface the road. This was not considered a reconstruction or rebuilding project and the Highway Design Manual was not applicable. Gutters were not included in the work to be performed. The project was intended to improve the pavement curb-to-curb or edge-to-edge.

Roger Griemsmann testified that he had been employed by DOT for 36½ years before retiring in March 2007. From 1991 until his retirement, Griemsmann was the Resident Maintenance Engineer for Putnam and Southern Dutchess Counties. He was responsible for maintaining the highways, including Route 9D, in this region. Griemsmann described the shoulders on Route 9D, south of the Village of Cold Spring, as rural. There were small paved shoulders of varying widths lined with trees and grass. He characterized the road in the village as the urban section, with a paved shoulder of six to eight feet, a curb, and a sidewalk. In the village, there was ample room for a car to park on the shoulder. North of the village, the area was also rural and the shoulders narrowed.

Griemsmann testified that the term edge drop[5] usually referred to a differential in elevation between the travel lane and the shoulder. The relative safety of such deferential is evaluated in Section 2.110 of the Highway Maintenance Guidelines. The primary concern posed by a drop-off is the scuffing hazard for drivers who tend to overcorrect their steering as they attempt to return to the road. The acceptability of the height of the drop-off is based on the shape of the edge. Griemsmann explained that in this case, the drop was slight, not sharp, and was located at the edge of the shoulder next to the gutter, and not between the travel lane and the shoulder. Griemsmann was less concerned with a drop-off located between the shoulder and the gutter, than with a drop-off located between the travel lane and the shoulder because a prudent driver keeps his vehicle in the travel lane. Moreover, the issue was tire scuffing for drivers attempting to return to the road, not drivers leaving the road. At his examination before trial, Griemsmann admitted that he knew that bicyclists used shoulders. On cross-examination at trial, he conceded that a drop-off could probably be of concern to a bicyclist on the shoulder. He did not recall if he knew at the time of claimant’s accident that Route 9D was designated as a bike trail. He agreed that, in evaluating the safety of a specific drop-off, he would consider whether a particular road was designated as a bike route. Based on his observations and analysis, Griemsmann concluded that the drop-off was not hazardous.

Viewing the photographs received into evidence, Griemsmann noted that ramping was depicted (Exs. 11, 12, 15, 16). He did not recall sending DOT maintenance forces to perform such work and a search of the department records did not reveal any repairs. He also searched the department records for prior complaints and found none.

Christopher Cox testified that he is currently employed by DOT as a Civil Engineer I in the Traffic Safety and Mobility Group in Syracuse. From 2002 to 2007, he was a construction engineer in the Poughkeepsie office. He was the Assistant Engineer-In-Charge of repaving contracts, which included paving the shoulders but not the gutters. During the 2003 repaving project on Route 9D, Cox was on site daily, supervising the work and reporting to the Engineer-In-Charge, Dean Leonard. Cox prepared Inspector’s Daily Reports (Ex. 9) and documented any disputes or questions. If minor issues arose at the scene, he had the authority to use his engineering judgment and direct a modification. A major issue would require consultation with Leonard. Repaving the gutters would have been a major issue requiring Leonard’s approval. Cox also maintained that if he saw something hazardous on a scene, he would speak to Leonard.

When asked how he determined whether the drop-off on Route 9D was hazardous, Cox replied that it was an engineering judgment based on field conditions. He considered the location of the drop-off, its height and shape, and whether its edge was vertical or tapered. Cox explained that elevation differentials are a concern because a tire can get caught and pull a vehicle off the road, and tire scuffing can create difficulties for a motorist trying to return to the road. Cox conceded that, during the time he supervised the repaving, he did not know the area was a designated bike route. He further conceded that a drop-off would be hazardous to a bicyclist in the same manner as it would be to a motorist; however, a bicyclist might return to the road more easily. He also agreed that the road’s use as a bicycle route could be a factor in determining whether the drop-off along the gutter should be repaved.

Cox had no recollection of any conversations with the Gigliottis regarding the northbound lanes. Reviewing the Inspector’s Daily Report of October 7, 2003, he recalled that there was a concern about a drop-off on the edge of the pavement along the gutter and that it was addressed (Ex. 9). Examining the photographs that indicate ramping (Exs. 11-16), Cox testified that they were consistent with his notes in the October 7, 2003 report.

Eric Ophardt, a civil engineer employed by DOT for 18½ years, testified that for the last 8½ years, he has been the statewide Bicycle and Pedestrian Coordinator. In his position, he is responsible for policy programing, education and engineering as it relates to pedestrians and cyclists. Ophardt testified that in 1997, the State designated bike routes. Basically, corridors where cycling was already occurring were identified. Factors considered for designation included shoulder widths, traffic volume, truck usage, road surface, aesthetics, grades and continuities between communities. Shoulders were evaluated because when a vehicle passes, a cyclist usually moves onto the shoulder. There were, however, no specific shoulder requirements. Although Ophardt was familiar with Route 9D, he was not associated with the program in 1997 at the time of the designation.

Route 9D was classified as an “on-road State bicycle route” (Ex. F; T:422) and Ophardt described Route 9D as a road for experienced bicyclists. He explained that on State bicycle routes, bicyclists ride in the roadway and when a motor vehicle approaches, they move to the right and use the shoulder, if one is available (T:427). Ophardt testified that exhibit F, the Hudson Valley Bikeway and Trailways, provided that:

“State bicycle routes are intended for experienced adult cyclists who can share the road with motorized traffic and are primarily for transportation purposes. These routes are not recommended for children or inexperienced bicyclists due to the speed and volume of traffic generally encountered on most State highways. It is recommended that inexperienced adult bicyclists, families and children utilize [the] region’s bike paths, rail trails, trailways and low volume, low speed bike routes or roadways.”


Nicolas Pucino, a professional engineer with DOT and its predecessor agencies for over 30 years, before retiring in 1991, offered expert testimony on behalf of defendant. He was responsible for establishing the State’s system for identifying road deficiencies through accident analyses. From 1989 until his retirement in 1991, he was DOT’s Regional Construction Engineer and oversaw the inspection and construction of roads in Putnam and Dutchess Counties. Pucino visited the accident site four times and took measurements, photographs, and a video of the scene. He described the drop-off as tapered and determined that the shoulder was 2½ feet wide. He measured the drop-off as 1¾ inches to 2 inches and the slope as a maximum of 20 degrees. Pucino found that there was ramping and a contrast in the color of pavement between the shoulder and the gutter (Exs. I, V, W). He rejected O’Rourke’s characterization of “intrinsic camouflage.” In Pucino’s opinion, there was striking contrast between the two surfaces which should have been readily apparent to bicyclists and motorists.

Pucino testified that there was obvious ramping adjacent to the northbound shoulder. He explained that ramping is created for safety reasons, to provide a transition where an edge is too steep. The ramping signified to Pucino that after the repaving, a judgment decision had been made to address the transition. He noted that the ramping was well blended and a little rougher in texture than the shoulder, which indicated that it had been done by hand. In Pucino’s opinion, the ramping was part of the paving contract since the Inspector’s Daily Report of October 7, 2003, indicated a repair to the “drop-off at edge of pavement along gutters” (Ex. 9). While the report does not specify the location, the area of claimant’s accident was the only place with gutters on the section of Route 9D covered by the repaving contracts.

Pucino reviewed the road history for Route 9D. He testified that the record plans for 9D were dated 1931 and the road was last resurfaced in 2003. The documents indicated that the type of contract involved in 2003 was like a purchase order for maintenance. This signified to Pucino that it was not a reconstruction project and, therefore, the standards at the time of original construction apply rather than the Highway Design Manual. He noted that ten-foot travel lanes were common on old roads.

Pucino also reviewed Section 2.110 of the Highway Maintenance Guidelines. He testified that the shape of the edge of a drop-off is a critical element for safety. Referring to the accompanying graph, Pucino identified shape B as classic asphalt pavement and shape C (a 45-degree angle) as closest to the tapered edge present here. Pucino testified that even shape B was safe up to a 3¼- inch differential. Furthermore, Pucino stated, all of the assessments were based on the scrubbing problem and not upon a vehicle leaving the road. In terms of leaving the road, he opined there was no problem until a drop-off was five inches. Reading the graph, Pucino concluded that the edge drop at two inches would be in the “safe” category and certainly no worse than “reasonably safe” (Ex. OOO).

Pucino also took photographs at varying points on Route 9D in the four to five miles heading north to the Village of Cold Spring. In that stretch of the road, the shoulder was narrow and did not widen until the village. Pucino opined that a bicyclist’s expectations after Cold Spring should have been a resumption of conditions that had existed prior to the more developed village. Moreover, a bicyclist must look ahead and be prepared for changing conditions.

Pucino testified that the reduction of the shoulder was clearly visible, the edge of the shoulder was ramped and well tapered, and the contrast between the asphalt and grass-covered gutter was clear, even if there were shadows. Pucino also challenged the alleged existence of the shadows. With the ample sight distances and the straight alignment of the road, in Pucino’s view, the road conditions were not a contributing factor of the accident. Claimant was riding at 15 mph, heading down a steep hill without applying her brakes. Pucino opined that claimant had a greater sight distance than 60 feet and, thus, ample time to react to the conditions before her.
The State has a duty to use reasonable care in maintaining its highways and the adjacent areas in a reasonably safe condition to prevent the occurrence of foreseeable injuries (see Basso v Miller, 40 NY2d 233, 241). The State also has a duty to warn the public of any latent dangers that are not readily apparent (see Cohen v State of New York, 50 AD3d 1234; Walter v State of New York, 185 AD2d 536). There is no duty, however, to warn against a condition which is open and obvious and readily observable by the reasonable use of one’s senses (see Martinez v City of New York, 307 AD2d 989). Moreover, “[n]egligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of claimant to show affirmatively by competent evidence that the injury complained of was caused by reason of some breach of duty by the State. Negligence must be proven” (Mochen v State of NewYork, 57 AD2d 719, 720).

In the context of sporting and recreational activities, it is well settled that a property owner's legal obligation to a participant is only to make the conditions as safe as they appear to be (see Turcotte v Fell, 68 NY2d 432, 439). “[B]y engaging in a sport or recreational activity, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation” (Morgan v State of New York, 90 NY2d 471, 484). “This includes those risks associated with the construction of the playing surface and any open and obvious condition on it” (Welch v Board of Educ. of City of N.Y., 272 AD2d 469; Joseph v New York Racing Assn., 28 AD3d 105, 108; see Sykes v County of Erie, 94 NY2d 912, 913). It is not necessary to the doctrine’s applicability that the injured party may have foreseen the exact manner in which the injury occurred “so long as he or she is aware of the potential for injury of the mechanism from which the injury results” (Maddox v City of New York, 66 NY2d 270, 278). The awareness of the risk is “to be assessed against the background of the skill and experience of the particular plaintiff” (Maddox v City of New York, 66 NY2d 270, supra at 278; see Morgan v State of New York, 90 NY2d 471, supra at 486).

While participants in a sporting activity are not deemed to have assumed the risks of concealed or unreasonably increased risks (see Morgan v State of New York, 90 NY2d 471, supra at 485), “[i]f the risks of the activity are fully comprehended or perfectly obvious, [the] plaintiff has consented to them and [the] defendant has performed its duty” by making the conditions as safe as they appear to be (Turcotte v Fell, 68 NY2d 432, supra at 439; Restaino v Yonkers Bd. of Educ., 13 AD3d 432). Claimant was bound to see that which could have been observed by a proper use of her senses (see Meyer v Tyner, 273 AD2d 364; Paulo v Great Atl. & Pac. Tea Co., 233 AD2d 380).

In Dobert v State of New York, 8 AD3d 873, a bicyclist fell off her bicycle at a State park when her tire struck a depression in the roadway which was the result of a cut made in the pavement years earlier to install a water line. Although the cut had been repaired, the soil had presumably settled, causing a slight depression. The Court noted that the depression was readily observable, as conceded by claimant, and held that claimant “had no reason to expect a perfectly smooth roadway” and that “[t]he risk of injury from falling off her bicycle was inherent in this activity and she cannot recover from defendant” (id. at 874).

Similarly, in Goldberg v Town of Hempstead, 289 AD2d 198, the infant plaintiff, a fairly experienced cyclist, was riding her bicycle on a dirt-base path of a baseball field owned and maintained by the defendant when she fell because her bicycle struck a hole in the ground. The Second Department denied plaintiff recovery. The Court noted that the hole was open and obvious as depicted in a photograph received into evidence and “[s]ince the risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces” the infant plaintiff had assumed the risk associated with riding her bicycle on the ballfield and defendant had “discharged its duty of care by making the field as safe as it appeared to be” (Goldberg v Town of Hempstead, 289 AD2d 198, supra at 198; see Rivera v Glen Oaks Vil. Owners, Inc., 41 AD3d 817, 818, citing Goldberg v Town of Hempstead, 289 AD2d 198 [“(t)he risk of striking a hole and falling is an inherent risk in riding a bicycle on most outdoor surfaces”]).

So too here, when an experienced athlete, such as claimant, is aware of, or should reasonably appreciate, the potential dangers of striking a rut and falling while riding on a 2½-foot shoulder which varied in measurements throughout her route, yet participates in the activity despite this awareness, she must be deemed to have assumed the risk of injury which flows therefrom (see Joseph v New York Racing Assn., 28 AD3d 105, supra at 108 [experienced athlete who is aware of or should be aware of potential danger of performing sporting activity on premises and yet participates in the activity despite the awareness she/he must be deemed to have assumed the risk of injury which flows therefrom]; Verro v New York Racing Assn., 142 AD2d 396, 399 [an experienced jockey who had ridden on the subject track previously, assumed the risks posed by various features of the track which allegedly caused his accident, since all of those risks were fully comprehended or perfectly obvious]).

Upon review of all the trial evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that claimant has failed to establish that defendant was negligent.[6] Specifically, claimant failed to establish that the alleged defect was of a significant depth and width as to pose a foreseeably dangerous condition (cf. Sevilla v State of New York, 111 AD2d 1046 [four-to eight-inch drop-off between roadway and shoulder was excessive and represented a dangerous condition which was a proximate cause of claimant’s accident]; Bottalico v State of New York, 87 AD2d 807, affd 59 NY2d 302 [four-to six-inch drop-off from roadway to shoulder was a substantial hazard). In this case, the evidence established that the drop-off was no more than two inches and was tapered rather than vertical. It is noted that the drop-off was located between the shoulder and the adjacent gutter and not between the roadway and its adjacent shoulder.

The sum of the evidence leads to the conclusion that the alleged defect did not constitute a trap or nuisance and claimant’s fall was due to her own inattentiveness (see Dobert v State of New York, 8 AD3d 873, supra; Goldberg v Town of Hempstead, 289 AD2d 198, supra).


June 6, 2008
White Plains, New York

Judge of the Court of Claims

[2]. References to the trial transcript are preceded by the letter “T.”.
[3]. Later testimony of another witness, Brian O’Rourke, established that the drop-off at the location of claimant’s accident was two inches, and claimant does not dispute this measurement (see Claimant’s Post-Trial Memo).
[4]. Claimant has a separate case pending in Supreme Court, Westchester County, against the two contractors (Elizabeth Desoye v A. Colarusso & Son, Inc., and Paleen Construction Corp., Index No. 21163-05).
[5]. The terms edge drop and drop-off were used interchangeably during the trial to describe a difference in elevation between road surfaces.
[6].While claimant does not allege negligent design, in any event, defendant’s decision not to further remedy the drop-off was a well reasoned planning decision which is accorded qualified immunity (see Smythe v Woods, 41 AD3d 1130; Spanbock v Trzaska, 287 AD2d 496 [court rejected argument that traffic study was plainly inadequate or without reasonable basis]).