New York State Court of Claims

New York State Court of Claims

BLISS v. THE STATE OF NEW YORK, #2008-033-591, Claim No. 112164


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Cross-motion number(s):

James J. Lack
Claimant’s attorney:
The Law Office of John C. Dearie & AssociatesBy: Michael J. Croce, Esq.
Defendant’s attorney:
Andrew M. Cuomo, New York State Attorney GeneralBy: John L. Belford, IV, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 29, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This is a timely filed claim based on negligence for alleged injuries suffered by Leon Bliss (hereinafter “claimant”). On March 6, 2008, a bifurcated trial was held to determine liability.

On May 13, 2003, at approximately 11:00 a.m., claimant arrived at Robert Moses State Park, parking field 5. Claimant[1] was with his wife and they decided to take a walk on the beach. Claimant had been to this park at least a hundred times before the accident date. He described the weather as clear and crisp. Claimant and his wife walked across the concrete by the concession stand and went onto the beach. While going toward the ocean, claimant testified that he noticed men with shovels digging around in the beach area and he also noticed a snow fence still lining the beach.

Claimant and his wife spent only a minute or two by the water and then began walking back toward the parking lot. As he and his wife walked back toward the concession, claimant did not notice anything that he could recall. He did not recall the men working, indicating that he was not paying attention to what was going on at this time. Claimant was walking and talking with his wife.

Claimant states that as he was walking on the sand, he suddenly fell and landed on the concrete leading to the concession. After falling, claimant says that he noticed a hole that he had stepped into in the sand. Claimant described the hole as about 6 to 8 inches deep. Claimant’s wife helped him get up and then she ran over to where the defendant’s workers were working and asked for help. A man came over to claimant. He indicated that the first aid station was closed and he then led claimant and his wife to the main office. An EMT[2] was called to the office and claimant related what happened.

On cross-examination, claimant admitted that the sand that he observed as he walked was not smooth. Rather, claimant described the sand as “wavy”. He stated that these types of undulations were all over the beach in the area that he was walking. In his estimation, the winter, wind and erosion had caused all of these undulations. Claimant noted the beach was not smooth, as it is in the summer.

Claimant testified that he never saw the hole he fell into before his accident. After the accident, claimant said he took a glimpse of the area where his foot was and saw the hole. He did not focus on the hole because he was focused on his injuries.

On cross-examination, claimant described the hole as “an indent in the ground and it blended in with the sand” (TT p. 40). In addition to the depth of 6 to 8 inches, claimant testified the hole was approximately 12 inches wide. Defense counsel asked claimant the following:
Q: Okay. Was there any wet sand around the top of it that might have been created by someone digging?

A: I don’t believe so. It just blend in. That’s why I never seen it.

(TT pp. 40-41). Claimant acknowledged that at the time of his deposition he was unaware as to how deep the hole was. When pressed about this discrepancy, claimant stated that the hole had to be “two - - four to six inches deep at the time” (TT p. 44), which is why he did not notice it.

Claimant testified that on the morning of his accident, he did not observe any of the workers he saw digging in the area where he fell. Further, claimant indicated that there were no tire tracks in the sand near where he fell.

Claimant’s wife testified that the hole was about 10 to 12 inches across and about 8 to 10 inches deep. On cross-examination, she stated the hole looked like it was for a fence post and had been dug with a “special hole digger” (TT p. 66).

Elizabeth Wintenberger is the park manager of Robert Moses State Park and was in that capacity on the date of claimant’s accident. During the course of her testimony, she stated that it would be rare for workers to use shovels. Most of the work that is done at Robert Moses State Park is done using a payloader to dig or grade sand. Ms. Wintenberger testified that a payloader is used to put stakes into the ground for snow fences and it is also used to pull the stakes out. No digging is done by hand for this task. The stakes used are about two inches wide and do not leave a hole when they are pulled out of the ground.

Upon being shown a photograph (claimant’s Exhibit 1A) of the area claimant fell, Ms. Wintenberger was asked if that was a typical location for a snowfence. She indicated any snowfence would be 30 to 40 yards closer to the ocean.

Devin Pratt was the EMT working at the time of claimant’s accident. Pratt treated claimant and then examined the area where claimant fell for the hole (defendant’s Exhibit B). Pratt did not find a hole in the area where claimant fell but saw a 5 to 5 ½ inch difference between the edge of the cement and the sand. He testified that this difference was normal.

As the owner and operator of the park, the State’s duty is to use reasonable care in maintaining the property in a reasonably safe condition to prevent the occurrence of foreseeable injuries (Basso v Miller, 40 NY2d 233). The duty of care is limited by claimant's reasonable expectations under the circumstances. The defendant's obligation in such a situation is to make the premises as safe as they appear to be so that claimant can fully comprehend and see the risks which will be assumed (Drew v State of New York, 146 AD2d 847; see also, Walter v State of New York, 185 AD2d 536).

According to Mochen v State of New York, 57 AD2d 719, 720:
Negligence 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.

It is incumbent upon claimant to establish: the existence of a forseeable dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant’s accident; and that damages were sustained (Gordon v American Museum of Natural History, 67 NY2d 836).

In the instant matter, the Court is not persuaded that a dangerous condition existed. The beach had been subjected to months of winter conditions, storms and wind. As described by claimant, the beach was full of undulations which had formed naturally. Claimant indicated that no work was taking place in the area in which he fell and that there were no tire tracks in that area. Claimant and his wife give differing descriptions of the “hole”. According to claimant’s wife, the hole appeared to have been dug with a posthole digger. On the other hand, claimant said there was no difference in the color of the sand and this area blended in with the rest of the beach.

The Court finds that the “hole” claimant tripped in was a naturally occurring undulation caused by the environment.

Assuming arguendo claimant could prove a dangerous condition, defendant had no notice of the condition. The sand of a beach is the ultimate example of a transient condition. Every time the wind blows, there is a change in the surface of the beach.
Accordingly, the Court finds in favor of defendant and dismisses the Claim. All motions not specifically ruled upon are denied.

Let judgment be entered accordingly.

September 29, 2008
Hauppauge, New York

Judge of the Court of Claims

[1].In giving some background information concerning himself, claimant divulged that he lost his left eye in a job related accident in 1990. However, claimant possesses a valid driver’s license and drove to the beach on the date of the accident.
[2].Emergency Medical Technician.