Fahmida Alam (claimant), while visiting Belmont Lake State Park (Park) on
Sunday, August 14, 2005 with her family, fell and injured herself. After
walking on a paved walkway to the Park’s bathroom facilities, claimant
tripped and fell as she returned on the walkway, at approximately 2:30
There were three witnesses and three admitted exhibits at trial. Claimant and
her husband, Golam Alam, testified, as did Park manager (for 16 years) Sal
Buonomo. The three exhibits are all photographs of the walkway upon which
claimant fell, taken at varying distances from the spot claimant fell. While
the photographs were taken approximately three and one-half months after the
incident, all of the witnesses related that they fairly and accurately depicted
the condition of the walkway as it existed on August 14, 2005, the date of
The matter, both legally and factually, is straightforward. The law of
premises liability in New York is well established, particularly that of trip
[or slip] and fall claims.
“Having waived its sovereign immunity, the State is subject to the same
rules of liability as apply to private citizens” (Preston v State of
New York, 59 NY2d 997, 998 ). “It is beyond dispute that
landowners and business proprietors have a duty to maintain their properties in
reasonably safe condition” (Di Ponzio v Riordan, 89 NY2d 578, 582
; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [3d
Dept 2004]). However, “[w]hile the State clearly owes a duty to claimants
and others entering upon its property to maintain it in a reasonably safe
condition under the circumstances, it is not obligated to insure against every
injury which may occur” (Smith v State of New York, 260 AD2d 819,
820 [3d Dept 1999]).
The State’s liability for a slip [or trip] and fall is premised upon
proof that it either created the alleged dangerous condition or knew, or in the
exercise of reasonable care, should have known that a dangerous condition
existed but, nevertheless, failed to remedy the situation within a reasonable
time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept
2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v
State of New York, 188 AD2d 918, 919 [3d Dept 1992]).
Where there is insufficient proof that the defendant created or had actual
notice of the condition, liability turns on the issue of whether defendant had
constructive notice. “To constitute constructive notice, a defect must be
visible and apparent and it must exist for a sufficient length of time prior to
the accident to permit defendant’s employees to discover and remedy
it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837
; see Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005,
1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d
Claimant was wearing sandals on August 14, 2005. Returning from the bathroom
facilities with her son, the footwear became caught in a crack in the walkway
pavement and she fell. The location of her fall is marked by a blue
“x” on Exhibit 2 and a blue circle on Exhibit 3 (her son’s
position on the walkway at the time of her fall is marked by a blue
“s” on Exhibit 2).
She had traveled the same walkway moments earlier and agreed that while she
observed the general walkway condition, she did not see the specific
“defect” (her word) over which she fell. She had never complained
of the walkway’s condition, although she had been to the Park on four or
five previous occasions. When questioned earlier at a deposition about the
depth of the crack over which she tripped, claimant testified to it being the
depth of the tip of her right index finger. At trial, claimant testified that
the walkway cracking was readily observable from a distance of between five and
The only witness for defendant was Park manager Buonomo, responsible for all
Park operations and safety during the time in question. The Park is a State
Park for the public’s recreational use 365 days per year, for such things
as baseball, basketball, walking and rowing. In 2005, it served approximately
395,000 patrons and on August 14, 2005 specifically, approximately 3,500 people
used the Park. Mr. Buonomo further testified, based upon the walkway’s
location within the park and its proximity to bathroom facilities and
concessions, that between 65% and 70% of the Park’s patrons on any
given day would traverse the area where claimant fell.
Also, Mr. Buonomo indicated the Park (including the walkway in question) hosted
upwards of a dozen “walk-a-thons” or “run-a-thons” per
year and served as the staging area of summertime children puppet and magic
shows. Despite such activity, in the 12 to 13 years he served as Park manager
leading to August 14, 2005, Mr. Buonomo reported receiving no complaints of, or
incidents involving, the walkway’s condition, nor was he made aware of
claimant’s fall until “late ’05 or early ’06,” no
report of claimant’s fall apparently having been made or received on
August 14, 2005 (a day on which Mr. Buonomo was present and on duty in the
Park), or thereafter.
Moreover, Mr. Buonomo testified that the walkway cracking where claimant fell
contained no height differential in the pavement, that the distance
between the gaps in the pavement were “less than one quarter of an
inch,” and that the cracking condition of the walkway could be seen at a
distance of 15 to 20 feet. He also stated the walkway’s condition, as it
existed on August 14, 2005, had not changed for approximately 5 years.
Notice of the pavement’s condition not being in dispute, the Court is
left to determine whether the condition of the walkway on August 14, 2005 was
dangerous. The only three exhibits were three photographs of the area where
claimant fell, one taken a few feet from the spot, another further away, and the
last, still further , affording the Court varying perspectives and distances
from which to view the walkway’s condition. Simple observation of any of
the photographs reveal the walkway’s “spider-web” type
cracking (the Court’s terminology) to be open and obvious, even from a
great distance, and to clearly be of a trivial nature.
Such a conclusion is strongly supported by the testimony of Park manager
Buonomo, and by claimant herself. In claimant’s own words, the depth of
the cracks where she fell approximated the tip of her index finger. Mr. Buonomo
said there existed no height differential in the cracking and that the gaps
between the cracking approximated one quarter of an inch.
There is no “rule that a defect must be of a certain minimum height or
depth in order to be actionable” (Trincere v County of Suffolk, 90
NY2d 976, 977 ). The existence of a dangerous or defective condition is
determined by an examination of the particular facts and circumstances of the
claim, including the width, depth, elevation and appearance of the condition,
together with the specific circumstances of the accident and injury. “Of
course, in some instances, the trivial nature of the defect may loom larger than
another element. Not every injury allegedly caused by an elevated brick or slab
need be submitted to a jury . . . [h]owever, a mechanistic disposition of a case
based exclusively on the dimension of the . . . [alleged] defect is
unacceptable” (Trincere, 90 NY2d at 977-978 ; see
Grover v State of New York, 294 AD2d 690 [3d Dept 2002]; Denmark v
Wal-Mart Stores, 266 AD2d 776 [3d Dept 1999]).
It is also well established that the owner of a public passageway cannot be
held liable for a trivial defect on a public walkway, unless the defect
constitutes a trap or nuisance (Trionfero v Vanderhorn, 6 AD3d 903,
903-904 [3d Dept 2004]; see Alig v Parkway Parking of N.Y., Inc.,
36 AD3d 980 [3d Dept 2007]). The State will not be held liable for a trivial
defect where the defect is “open and obvious and capable of being
avoided” (Vachon v State of New York, 286 AD2d 528 [3d Dept 2001]).
Beyond finding the condition of the walkway to be open and obvious, the Court
finds any defects therein to be trivial in nature.
For all of the foregoing reasons, the claim is dismissed.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.