TKESHELASHVILI v. THE STATE OF NEW YORK, #2008-015-065, Claim No. 112887, Motion
Nos. M-74985, M-74991
Where claimant was admittedly familiar with the fluctuating depth of the water
at Colgate Lake, his own reckless conduct in diving from a dam into shallow
water was the superseding cause of his injuries relieving the defendant of
MIKHAIL TKESHELASHVILI and ANNA TKESHELASHVILI
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Weingrad & Weingrad, LLPBy: Penny Shemtob, Esquire
Honorable Andrew M. Cuomo, Attorney General
Frederick H. McGown, III,
EsquireAssistant Attorney General
September 17, 2008
See also (multicaptioned
Claimants move for partial summary judgment on the issue of liability. The
defendant moves for summary judgment dismissing the claim pursuant to CPLR 3212.
For the reasons which follow, the defendant's motion is granted and the
claimants' motion is denied. Claimant,
Tkeshelashvili, was rendered a quadriplegic on September 4, 2005 when he dove
into water from the eastern spillway of a dam located on the north side of
Claimants allege that the
defendant was negligent in failing to maintain the lake in a reasonably safe
condition in that the water level was too low for swimming and diving and unsafe
for use by the public without restrictions and proper warnings regarding
jumping and diving into the lake, particularly in the area of the dam.
On Friday, September 2, 2005 claimants and their two children went to the
Cortina Hotel in Tannersville, New York where they were joined by friends the
following day (defendant's Exhibit N, EBT of Mikhail Tkeshelashvili, pp. 24,
On Sunday, September 4, 2005 the
claimant went for a drive with his friends Levan Mushtarauli and Georgi Khangava
. at 37 - 43). The three men ultimately proceeded to Colgate Lake in
Levan's car, which the claimant was driving, arriving there at approximately
3:00 p.m. (Id
. at 47, 49). Claimant parked the car in a dirt parking
lot near the lake and he and his friends walked along the shoreline to the
concrete dam (Id
. at 53-54; defendant's Exhibit O, EBT of Levan
Mushtarauli, pp. 16 - 17). Claimant jumped from the upper level of the dam to
the lower level, which was actually a spillway, where he walked two or three
steps and then dove into the lake with his chest forward (Id
At the same time James (Jay) Ward and his friend, Lois Keegan, were sitting in
beach chairs in a grassy area three or four feet from the water line talking
(defendant's Exhibit Q, EBT of James Ward, pp. 9-10; defendant's Exhibits G
and K, Affidavits of James Ward and Lois Keegan). Mr. Ward was facing Ms.
Keegan and Ms. Keegan was facing the nearby dam. Ms. Keegan observed three men
on the dam "being loud, and laughing" (defendant's Exhibit K, affidavit of Lois
Keegan, p. 2). She states the following in her affidavit:
"This man didn't hesitate, he walked right to the edge of the spillway, pulled
his shirt off, and dove headfirst into the water. I thought this was unusual,
because the water is shallow. After diving, the man surfaced, but I noticed he
didn't lift his head. This seemed wrong to me. I kept watching him, waiting for
him to breathe. I noticed he seemed to be trying to lift his head but somehow
seemed unable to do so. . . I asked the other two men if their friend was ok,
but they disregarded my questions, finally the skinny man said, 'He's just
playing!'. I knew something was wrong. Jay was still talking and didn't know
what happened, so I interrupted him and said, 'He needs your help.' "
At this point the claimant had floated face down into deeper water and Mr.
Ward, who is trained in outdoor emergency care, jumped in to assist him
(see defendant's Exhibits G and K, affidavits of Lois Keegan and James
Ward, and defendant's Exhibit Q, EBT of James Ward, pp. 11-17). Mr. Ward turned
the claimant over in the water, stabilized his neck and back, and brought him to
the shoreline until rescue personnel could arrive. Claimant had little or no
sensation in his extremities and was airlifted to Albany Medical Center.
Both Ms. Keegan and Mr. Ward indicate that the two men who were with the
claimant actually hindered the rescue effort. Both indicate in an affidavit
that one man jumped on top of the claimant as Mr. Ward was bringing him to
shore and that both men were grabbing his arms (defendant's Exhibit's G and K,
affidavits of James Ward and Lois Keegan; defendant's Exhibit Q, EBT of James
Ward, p. 18 ). The friends, on the other hand, both testified at an examination
before trial that they simply assisted Mr. Ward in bringing the claimant to
shore. Claimant and Levan Mushtarauli both denied consuming alcoholic beverages
on the date of the accident. Georgi Khangava admitted to having one beer with
his breakfast (defendant's Exhibit P, EBT of Georgi Khangava, p.
Mr. Mushtarauli testified that when he realized the claimant was in trouble
he, like the claimant, dove headfirst from the spillway of the dam, bruising his
hands on the lake bottom (defendant's Exhibit O, EBT of Levan Mushtarauli, pp.
43 - 46). When Mr. Mushtarauli stood up, the water level was only "a little
over [his] knees"(Id. at p. 45, line 11). Prior to diving he looked
quickly at the water but was unable to determine its depth (Id. at
The claimant testified at an examination before trial that he had jumped from
the upper part of the dam to the lower spillway "many times". He had also
into the water from the spillway
"many times" (defendant's Exhibit N, EBT of claimant, pp. 56 - 57). When asked
to estimate the number of times he had been to Colgate Lake prior to the
accident, the claimant testified "I am sure that I’ve been there more than
twenty times but I don’t know how many times because a lot of times"
. at 45). On those prior occasions the claimant had been to the lake,
he observed people swimming, suntanning, talking and children playing
. at 46). On some of those occasions he observed water flowing over
the spillway and on others he did not (defendant's Exhibit N, EBT of claimant,
p. 56; Affidavit of Mikhail Tkeshelashvili annexed to claimants' Notice of
Motion, ¶ 8). Claimant testified, however, that water was not flowing out
of the lake over the spillway on the date of his accident (defendant's Exhibit
N, EBT of claimant, p. 55). Notwithstanding his awareness that water was not
flowing through the spillway at the time, the claimant testified that he "had no
clue" how deep the water was below the level of the spillway when he dove into
the lake (defendant's Exhibit N, EBT of claimant, p. 55).
The affidavit of the claimant submitted in support of his motion indicates
that over a period of five years he and his family visited Colgate Lake
frequently and had last been there during the Memorial Day weekend preceding the
date of the incident at issue herein (May 28, 2005 - May 30, 2005). At that
time he swam near the dam and dove into the water from the spillway (see
Affidavit of Mikhail Tkeshelashvili, ¶ 3). "My family and I, on the
many prior occasions we visited there frequently, dived into the water from
these spillways of the dam. I also saw other people who I did not know diving
into the water from these spillways" (Id. at ¶ 4). The claimant
described the events leading up to the accident and his observation of the water
depth as follows:
"7. Levan, Georgi and I walked out onto the dam. Levan and Georgi were
behind me. Just as I had walked onto the dam many times before with my family
and friends, on the day of my accident, I walked across the dam toward the
spillway. I looked down to the area of the lake where I had dived in off the
spillway many times in the past. I saw the water below was dark and that I
could not see down to the bottom. The water looked no different than it had on
the many prior occasions I had dived from the spillway. The water there was
always dark. It looked the same as it did when I dove from the spillway just
months before, in May.
8. I saw that no water was running over the spillway. This was not
different from prior times when I dove because in the past when I dove off the
spillway, sometimes water would be running over the spillway and sometimes it
would not be running over the spillway. I never encountered any problem diving
off the spillway whether or not water was running over the spillway."
Affidavits were also submitted from claimant Anna Tkeshelashvili, Mikhail
Novakhov, Viktor Kholin, Olga Zakirov, Akmat Zakirov and Konstantin
Tkeshelashvili. Anna Tkeshelashvili states in her affidavit that she had been
to Colgate Lake in each of the summers of 2001 - 2004 and in May, 2005. On
those prior occasions, she swam in the lake and, although she saw others diving
or jumping into the lake from the spillway, she herself did not. Similarly, the
affidavits of Mikhail Novakhov, Viktor Kholin, Olga Zakirov, Akmat Zakirov
and Konstantin Tkeshelashvili all indicate that they had been to Colgate Lake in
the years preceding the accident and had either dived from the spillway
themselves or saw others who did.
Three days after the accident occurred Norman Channing, an Investigator for the
Department of Environmental Conservation's (DEC) Division of Law Enforcement,
went to the scene of the accident with James Ward. Mr. Ward showed him the
eastern spillway of the dam and Officer Channing took pictures of the area and
obtained Mr. Ward's version of the events of that day. The pictures, submitted
by both the defendant and the claimants in support of their respective motions,
were taken at approximately the same time of day the claimant's accident
occurred and under similar weather conditions (see claimants' Volume
Eight of Eight, EBT of Channing, pp. 37-39). According to Officer Channing,
the photograph marked as claimants' Exhibit 32 depicts the shallow depth of the
water near the dam (claimants' Volume Three of Eight, Channing's Photographs of
Colgate Lake Dam; claimants' Volume Eight of Eight, EBT of Channing, p. 55).
Levan Mushtarauli testified at an examination before trial that the photograph
marked as claimants' Exhibit 32 depicts where he and Georgi were standing on the
dam just before the claimant's accident and that the photograph marked as
claimants' Exhibit 36 depicts the spillway from which he (and the claimant) dove
(claimants' Volume Eight of Eight, EBT of Levan Mushtarauli, p. 39).
Colgate Lake, situated in Greene County, New York, lies within the Catskill
Forest Preserve which consists of approximately 272,000 acres (defendant's
Exhibit L, Catskill Park State Land Master Plan, p. 7; defendant's Exhibit E,
Affidavit of Paul Trotta, ¶ 5). The Ranger district comprising Greene
County includes an estimated 96,000 acres of state land, the majority of which
lies within the Catskill Forest Preserve (defendant's Exhibit L, Catskill Park
State Land Master Plan; defendant's Exhibit J, Affidavit of Darryl Kittle,
¶ 3). According to the 1998 publication entitled New York State, A
Morphometric Atlas of Selected Lakes, Colgate Lake has a surface area of 26
acres, a mean depth of 4.6 feet, a maximum depth of 10 feet, and a watershed
area of 5.5 square miles (see claimants' Volume Three of Eight, Exhibit
4, p. 24; Volume Two of Eight, Envelope No. 4, Bates stamp 312).
The Catskill Park State Land Master Plan (Master Plan) establishes the
following four classifications of State land within the park: Wilderness, Wild
Forest, Intensive Use and Administrative Areas (defendant's Exhibit L, Catskill
Park State Land Master Plan, p. 1; defendant's Exhibit E, Affidavit of Paul
Trotta). Colgate Lake, located in the Black Dome Valley, lies in an area
designated as Wild Forest (defendant's Exhibit L, Catskill Park State Land
Master Plan, pp. 56- 58; defendant's Exhibits E, Affidavit of Paul Trotta and
J Affidavit of Darryl J. Kittle). According to the affidavit of Paul Trotta, a
DEC Forester, "Wilderness is the most pristine and Wild Forest is next"
(defendant's Exhibit E, Affidavit of Paul Trotta, ¶ 5). Unlike Intensive
Use areas, such as public beaches and campgrounds, there is very little
infrastructure and few amenities in areas designated as Wild Forest (defendant's
Exhibit E, Affidavit of Paul Trotta, ¶ 6). Colgate Lake contains no formal
beach and has no lifeguards (defendant's Exhibit E, Affidavit of Paul Trotta,
¶ 9; defendant's Exhibit I, Affidavit of Shirley Denesha, ¶ 5). There
is no prohibition against swimming at Colgate Lake and there are no signs at the
lake which address the issue of swimming (defendant's Exhibit E, Affidavit of
Paul Trotta, ¶ 7).
Although Colgate Lake lies within a Wild Forest area, it was acknowledged in
the Master Plan (defendant's Exhibit L, p. 59) that unrestricted use of the lake
was a growing problem.
"The lake is a popular swimming, picknicking [sic] and camping spot.
Unsupervised and unrestricted use is a present and growing problem. There are
no plans for any organized recreational development. Other than parking lots
and the connecting foot trail, there are no man-made interior facilities."
At his examination before trial, Jeffrey Breigle, a DEC Forest Ranger,
testified that he patrolled the Colgate Lake area three to four times per week.
He estimated that during weekdays approximately 20 to 25 people were at the
lake on a "nice" day and nearly 100 people on weekends (claimants' Volume Eight
of Eight, EBT of Jeffrey Breigle, pp. 12 - 13). Mr. Breigle also testified
that he frequently observed people sitting on the dam, standing in the spillway,
and swimming near the dam (Id. at 15 - 16).
The State of New York purchased the property where Colgate Lake is located in
1975 (defendant's Exhibit R, EBT of Paul Trotta, p. 101). The dam at the lake
was built in 1887 as a timber crib and laid-up stone structure (claimants'
Volume Two of Eight, Envelope No. 4, Bates 312). It was rehabilitated in 1914
and repaired several times throughout the years (Id. at 312, 309, 317,
318, 319, 327; claimants' Volume Two of Eight, Envelope No. 5, Bates 392, 395,
397, 409). In 1996, for example, repairs were made after water was observed
leaking from the dam at the rate of 200 - 300 gallons per minute (defendant's
Exhibit H, Affidavit of Thomas Miller, ¶ 5; claimants' Volume Two of Eight,
Envelope No. 4, Bates 316, 319). The dam was classified as a Class B downstream
hazard potential dam (defendant's Exhibit F, Affidavit of Donald Canestrari,
¶ 8). "The downstream hazard potential is the risk a dam poses to
downstream people and property in the event the dam fails" (Id. at ¶
2; see also claimants' Volume Five of Eight, Bates 928 - 929). The dam
was periodically inspected and, according to status reports maintained by the
DEC Environmental Audit Unit, the dam was ranked as an N3 dam in 1998. The dam
was assigned an N2 ranking in 2000 (claimants' Volume Four of Eight, Bates 739,
743). A dam with an N3 ranking "[p]oses a discernible but not substantial
threat to the public health or the environment" and a dam with an N2 ranking
"[p]oses a potential substantial threat to the public health or the environment"
(claimants' Volume Three of Eight, Exhibit 15, Memo from Donald Canestrari,
According to the affidavit of Thomas Miller, Bureau Chief of the DEC Bureau of
Design and Construction, design work performed at the dam in 1998 addressed
only the problem of leakage and not the spillway capacity deficiency or
deficiencies with the downstream side of the dam (defendant's Exhibit H,
Affidavit of Thomas Miller, ¶ 7). As a result, it was decided that a new
dam would be needed. However, due to budgetary
and a shortage of engineers, bids
for the construction of a new dam were not opened until April, 2007 (Id
at ¶ 8).
Colgate Lake was drained and construction of a new dam commenced in 2007.
Claimants' counsel Stephen Weingrad, Esq., and his assistant, MichaelVignieri,
visited the lake for the purpose of taking measurements and pictures of the area
after it was drained. In an affirmation submitted in support of the claimants'
motion, Mr. Weingrad indicates "the westerly side of the crest of the eastern
spillway of the dam is four feet (4') above the lake bottom at the face of the
dam" (Affirmation of Stephen Weingrad, Esq., ¶ 4). While holding a ruler
at a point "about" six inches below the crest of the spillway, Mr. Vignieri
stood six feet from the spillway and the ruler intersected his body at the level
of his chest (Affirmation of Stephen Weingrad, Esq., ¶ 5). Referencing
the photographs attached to his affirmation, Mr. Weingrad states the following
(Affirmation of Stephen Weingrad, Esq., ¶ 5):
"The photographs are intended to show that when there is water in the lake, even
if the water is a few inches below the crest of the eastern spillway, it is at
least chest high on a person of Mr. Vignieri’s height of five feet and ten
inches (5' 10") standing six feet (6') out from the face of the spillway. The
water would have been still higher on Mr. Tkeshelashvili, who is shorter at five
feet and eight (5' 8") in height."
Mr. Weingrad's affirmation does not provide a precise measurement from a point
level with the top of the eastern spillway to the ground at a distance of six
feet from the face of the spillway, indicating only that the water surface would
be at Mr. Vignieri's chest if the water level was "about" six inches below the
crest of the spillway .
Mr. Weingrad's affirmation and the annexed photographs reflect that the lake
bed at the face of the dam appears to have been flattened. The affidavit of
Thomas Miller indicates that in 1998 there was minor regrading of the bottom of
the lake which created a level area used by construction equipment to come on
site and take soil borings (defendant's Exhibit H, Affidavit of Thomas Miller,
¶ 4). The lake bottom at the face of the dam previously "sloped right to
the concrete face of the dam. The net effect was that the water at the base of
the dam was actually made deeper" according to Mr. Miller (Id.).
In addition to the claimant's observation that water flowed over the spillway
on some occasions and on other occasions did not, employees from the DEC
testified that the water level of the lake fluctuated based upon the prevailing
amount of precipitation. Paul Trotta, a Regional Forester in Region 4 where
Colgate Lake is located, testified that the "Colgate Lake water level fluctuates
based upon the rainfall that comes into the watershed that feeds that lake"
(defendant's Exhibit R, EBT of Paul Trotta, p. 53; defendant's Exhibit E, Trotta
Affidavit, ¶ 13). Jeffrey Breigle, a Forest Ranger for the DEC who works
in the area of Colgate Lake, also testified that sometimes the water level is up
and flowing over the spillway and at other times it is not "[p]articularly if
you’re talking about the summer months. Summer months it’s
generally very low. The water level goes down particularly if we have a year
where we don't have a lot of rain" (claimants' Volume Eight of Eight, EBT of
Jeffrey Briegel, pp. 16 - 17).
The deposition testimony of Mr. Trotta also made clear that the water level of
the lake was difficult to maintain by virtue of ongoing leaks in the dam
(see defendant's Exhibit R, EBT of Paul Trotta, p. 95). In fact, he
testified that the dam leaked "the whole time I've been familiar with it"
(Id. at 113; see also claimants' Volume Two of Eight, Envelopes 4
& 5, Bates 279, 283 - 290, 307 - 310, 311, 316, 320, 392, 395, 397,409).
According to Mr. Trotta, the concern was "more from an esthetic recreation
perspective, but it was not believed, in [his] remembrance, that the dam
failure, catastrophic failure was an issue" (defendant's Exhibit E, Affidavit of
Paul Trotta, ¶ 15).
As a landowner, the State is subject to the same rules of liability as a
private citizen and must act reasonably in view of all the circumstances
(Preston v State of New York, 59 NY2d 997, 998 ; see also
Basso v Miller, 40 NY2d 233 ). The circumstances to be
considered include "‛ the likelihood of injury to others, the seriousness
of the injury, and the burden of avoiding the risk'" (Basso v Miller, 40
NY2d at 241 [citation omitted]). Thus, where the State, as landowner, reserves
an area for swimming and provides beach facilities such as picnic tables,
barbecue pits, trash cans, and outhouses, it has a duty to either inspect and
remove hazards from the water or to give warning that the waters are used at the
swimmer's own risk (Preston v State of New York, 59 NY2d at 998). As
noted by the Court of Appeals in Preston, however:
"Mere ownership does not give rise to the duty, but inviting the public to swim
there does. Obviously, an individual who bathes in a State lake in a primitive
area of the Adirondacks cannot expect the State to have 'sanitized' the area for
safe public use" (Id. at 998).
While the State owned Colgate Lake, it did not specifically reserve the
area for swimming nor did it invite the public to swim there (cf.
Jarmolowski v State of New York, 23 AD3d 786 ). Claimant
successfully established, however, the State’s awareness that Colgate
Lake was a popular recreational venue and that people commonly swam in the lake
and sat and walked upon the dam. Claimant's presence at the lake and on the dam
was thus foreseeable and the State therefore had a duty to maintain the area in
a reasonably safe condition (see Zmieske v State of New York, 180
AD2d 894 ; Walter v State of New York, 185 AD2d 536 ;
Mesick v State of New York, 118 AD2d 214 , lv denied 68 NY2d
Defendant's reliance on those cases holding that a landowner has no duty to
warn of natural transitory conditions are inapposite (see e.g. Herman
v State of New York, 63 NY2d 822 , rearg denied 64 NY2d 755
; DeWick v Village of Penn Yan, 275 AD2d 1011). The thrust
of the instant claim is the failure to warn people using the lake against diving
from the dam. It is contended that such a warning was necessary because of the
danger of low water levels in the lake caused by a failure to maintain the dam
(see Cosgrove Affidavit submitted in support of claimants' motion, p. 7-
8; claimants' bill of particulars submitted with motions). Claimants
established that during the summer months when precipitation was light the water
level of the lake was difficult to maintain due, in part, to the problem of
water leaking from the dam (defendant's Exhibit R, Trotta EBT, p. 113). A
leaking dam is neither a transitory nor a natural condition. As a result,
defendant's reliance on this body of law to negate the existence of a duty to
warn is misplaced.
In negligence actions arising out of diving accidents "the element of causation
can be resolved on summary judgment where the record eliminates any legal cause
other than reckless conduct of the plaintiff or where, notwithstanding any
negligent conduct on the defendant's part, the conduct of the plaintiff was so
reckless that it constituted an unforeseeable superseding event sufficient to
break the causal chain" (Butler v Marshall, 243 AD2d 971, 973 ).
Thus, a plaintiff's familiarity with a natural body of water together with the
knowledge that the water level fluctuated has been held to be the sole legal
cause of injuries arising from an ill-fated dive into shallow water (Olsen v
Town of Richfield, 81 NY2d 1024 ). The same result obtains when
"[b]y virtue of [his] general knowledge of pools, his observations prior to the
accident, and plain common sense, plaintiff must have known that, if he dove
into the pool, the area into which he dove contained shallow water" (Smith v
Stark, 67 NY2d 693, 694 ; Howard v Poseidon Pools, 72 NY2d 972
; Boltax v Joy Day Camp, 67 NY2d 617 ).
The claimant visited Colgate Lake and dove from the spillway frequently over
the five-year period preceding his accident. Claimant testified that he was
aware that water would sometimes flow through the spillway of the dam and at
other times it would not. In fact, the claimant testified that he observed that
no water was flowing through the spillway prior to his dive into the lake on
September 4, 2005. Given the extent of his prior experience at Colgate Lake,
his awareness of the intermittent nature of the flow of water through the
spillway and the unrefuted testimony that water levels varied up or down during
the summer months depending upon the amount of precipitation, claimant knew or
should have known that the depth of Colgate Lake fluctuated. Claimant also knew
or should have known that the water in front of the spillway was shallow in
light of the fact that, according to measurements taken by claimants' counsel,
"the westerly side of the crest of the eastern spillway of the dam is four feet
(4') above the lake bottom at the face of the dam" (Affirmation of Stephen
Weingrad, Esquire ¶ 4). In other words, when water is not flowing through
the spillway the depth of Colgate Lake near the face of the eastern spillway
from which the claimant dove on the date of his accident was never greater than
four feet. In addition, according to the New York State Morphometric Atlas of
Selected Lakes (relied on by both parties) the mean depth of the lake is only
4.6 feet. These facts establish, in light of the claimant's experience at
Colgate Lake, that he knew both that the area in front of the spillway was
shallow and that the precise depth at any particular time varied.
Although claimant was less than precise in describing the manner of his dive
from the spillway, Lois Keegan was quite clear when describing her observations
of the claimant's actions in her affidavit in which she states: "[T]his man
didn't hesitate, he walked right to the edge of the spillway, pulled his shirt
off , and dove headfirst into the water" (defendant's Exhibit K, Affidavit of
Lois Keegan, p.2) . Such conduct by a person who, based upon his substantial
prior experience, knew or should have known both that Colgate Lake was shallow
and that the actual depth of the lake fluctuated constitute, as a matter of
law, "an intervening act which was so extraordinary or far removed from the
defendant's conduct as to be unforeseeable" (Meseck v General Elec. Co.,
195 AD2d 798, 800 ; Haughton v T & J Elec. Corp., 309 AD2d
1007 , lv denied 1 NY3d 508 (2004) thus entitling the defendant to
summary judgment in its favor.
Claimant's testimony at his examination before trial in which he states he had
"no clue" as to the depth of the water at the eastern spillway at the time of
his ill-fated dive provides additional support for the granting of defendant's
motion. Despite his long experience swimming at Colgate Lake and diving from
the spillway, notwithstanding his awareness that water levels at the lake
fluctuated and in spite of his observation that water was not flowing through
the spillway immediately prior to diving, the claimant failed to determine the
level of the lake before entering the water. Furthermore, claimant stated in
his affidavit that because the water was "dark" he was unable to see the lake
bottom prior to diving. A headfirst dive into "dark" water without first
determining its depth is clearly reckless conduct in circumstances, such as
those present here, where the claimant was aware that the water level of the
lake fluctuated (see Lionarons v General Elec. Co., 215 AD2d 851
, affd 86 NY2d 832 ; Butler v Marshall, supra;
Mortis v Dittl, 275 AD2d 940 ; Johnson v Harrington, 215
AD2d 857 , lv denied 87 NY2d 802 ). This is particularly
true where the claimant, through long experience at the accident site, knew that
the water was shallow. The fact that the claimant and others had successfully
completed dives from the spillway of the dam on prior occasions does not render
claimant's conduct any less reckless or more foreseeable (see Egan v
A.J. Constr. Corp., 94 NY2d 839, 842 ).
Although the proof established that leaks in the dam were a continuing and
long-standing problem, the claimants failed to submit proof, expert or
otherwise, that the rate at which the water leaked from the dam was any greater
in September 2005 than it was on the many occasions Mr. Tkeshelashvili was at
Colgate Lake during the preceding five year period. While claimants established
that the dam at the lake had been leaking since at least 1976 (claimants'
Volume Two of Eight, Envelope No. 4, Bates 328, 343), they failed to establish
that the shallow depth of the water was a condition different in kind than those
with which the claimant was familiar (cf. Searles v Town of
Horicon, 116 AD2d 93 ). Accordingly, the fact that the dam leaked for
over 30 years and was leaking in September 2005 does nothing to negate the
claimant's familiarity with the fluctuating water level of the lake and the
dangers associated with diving into shallow water.
Based on the foregoing, defendant's motion for summary judgment dismissing the
claim is granted, and the claimants' motion for summary judgment is denied.
Saratoga Springs, New York
HON. FRANCIS T. COLLINS
the Court of Claims
The Court considered the following papers:
Motion No. M- 74985
1. Notice of motion dated May 20, 2008;
2. Affirmation of Penny Shemtob dated May 20, 2008;
3. Affirmation of Stephen Weingrad dated May 14, 2008 with Exhibits;
4. Affidavit of Mikhail Tkeshelashvili sworn to May 20, 2008;
5. Affidavit of Anna Tkeshelashvili sworn to May 20, 2008;
6. Affidavit of Francis A. Cosgrove sworn to May 16, 2008 with Exhibits;
7. Affidavit of Mikhail (Michael) Novakhov sworn to May 17, 2008;
8. Affidavit of Viktor (Victor) Kholin sworn to May 17, 2008;
9. Affidavit of Olga Zakirov sworn to May 17, 2008;
10. Affidavit of Akmal (Ali) Zakirov sworn to May 19, 2008;
11. Affidavit of Konstantin Tkeshelashvili sworn to May 17, 2008;
15. Claimants' Exhibits Volumes 1 - 8.
Notice of motion dated May 23, 2008;
Affirmation in support of motion for summary judgment of Frederick H. McGown,
III dated May 23, 2008 with exhibits A - S;
Defendant's memorandum of law in support of motion for summary judgment dated
May 23, 2008;
Affirmation in opposition to the State's motion for summary judgment of Penny
Shemtob dated June 11, 2008;
Defendant's reply memorandum of law dated June 12, 2008.
.Reference to claimant in singular form refers
to Mikhail Tkeshelashvili.
. Claimant was born in Kutaisi, Georgia in
1962 (defendant’s Exhibit N, P. 9). He graduated from high school in
Kutaisi and completed a program of study in Economics at Rostov University in
Russia (defendant’s Exhibit N, p. 10). He moved to the Ukraine in 1989
and immigrated to the United States in 1992 where he settled in Brooklyn, New
York with his family (Id
. at 12-13).
. Claimant's examination before trial
testimony was taken with the aid of an interpreter.
. Claimant’s use of the word "jump" was
generally synonymous with the word "dive" (see
defendant's Exhibit N,
claimant's EBT, pp. 31-32, 55).
. Lois Keegan indicates in her affidavit that
the claimant's friends appeared to be drinking and that she smelled alcohol
while standing near them (defendant’s Exhibit K).
.Claimant's use of the word "jump" was
generally synonymous with the word "dive" (see
defendant's Exhibit N,
claimant's EBT, pp. 31-32, 55).
. It appears that the funds for a "major
rehab" of the Colgate Dam were available in 2000 (claimants' Volume Two of
Eight, Envelope No. 4., Bates 358).