New York State Court of Claims

New York State Court of Claims

ALAM v. THE STATE OF NEW YORK, #2008-041-508, Claim No. 111620


Claim is dismissed after trial where alleged dangerous condition of public walkway which caused claimant to trip and fall was open and obvious and constituted only a trivial defect.

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):

Claimant’s attorney:
H. BRUCE FISCHER, P.C.By: H. Bruce Fischer, Esq.
Defendant’s attorney:
New York State Attorney GeneralBy: Todd Schall, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 5, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


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 p.m.

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 claimant’s fall.

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 [1983]). “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 [1997]; 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 [1986]; 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 Dept 1992]).

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 seven feet.

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 [1997]). 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 [1997]; 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.

August 5, 2008
Albany, New York

Judge of the Court of Claims