New York State Court of Claims

New York State Court of Claims

ARATO v. THE STATE OF NEW YORK, #2009-016-020, Claim No. 111030


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):

Alan C. Marin
Claimant’s attorney:
Bornstein & Emanuel, Richard D. Saul, Esq.
Defendant’s attorney:
Andrew Cuomo, Attorney Generalby: John M. Shields, AAG.
Third-party defendant’s attorney:

Signature date:
March 31, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the decision following the trial of the claim of Michael Arato, a physician by vocation and an avid bicyclist. On December 5, 2000, Dr. Arato left his house in Setauket and rode east intending to complete a 30- or 35-mile loop. Still eastbound, but about 12 miles from home, while riding on the shoulder of Route 25A just east of Miller Avenue in Shoreham (Suffolk County), Dr. Arato’s front wheel dropped into the space or gap between a drainage grate and its frame, and he was thrown from his bike. The edge at issue is the long side of the rectangular grate parallel to the lane of vehicular traffic and closest to it.

That day, the weather was clear, the portion of the road where he fell was flat, straight and recently paved. The road shoulder in this area was designated as a bicycle route with signs and schematics painted on the pavement.

Claimant was riding alone; there were no witnesses. Dr. Arato stated that he did not personally have any recollection of how his accident occurred, and that what he knew was told to him by an EMS technician who responded after the accident.

Five days after his accident, Dr. Arato returned to the area and took photographs, five of which are in evidence (cls exhs 1-4 and 8). In addition, claimant offered three photos taken by counsel some time after the accident (cl ehxs 5-7). Completing the photographic evidence were two photos offered by defendant (exh A).

Two photos show a tire dropped down into the gap of the Miller Avenue grate, which claimant testified was his tire or comparable to the kind of tires he had on his bike (cl exh 1 and 2); claimant argues that the gap is thus obviously too wide.

All the photographs, except claimant’s exhibit 8, are of the accident site. Exhibit 8, one of the photographs taken by claimant, was described by him as, “what I would consider a properly installed grate” - - there is no gap or a very slight one, between the grate and the pavement.

Claimant points to no standards on this spacing and did not call an expert engineer as a witness. In addition to Dr. Arato, taking the stand at trial were two employees of the State Department of Transportation (DOT): Harold Tarry, who was then a design unit supervisor, and Michael Bahnsen, a highway maintenance supervisor.

Mr. Tarry explained that this grate, known as a reticulum grate, was in standard use - - no evidence was adduced as to any available alternative. Its design was the result of the Bicycle Safe Grate Inlets Study, produced by the American Association of State Highway Transportation Officials (AASHTO), which also produced the Bicycle Safe Grate Inlets Design Manual. The studies covered the ability of the grates to provide drainage, as well as allowing bicycles to safely traverse over them: “they did hydraulic tests in terms of how much, how well they let water in but they also did tests where they had bicyclists ride over the grates.” Tarry added that corrugated metal was placed between the longitudinal lines “to keep the wheel from falling in there,” which can be seen, for example, in the photograph that is claimant’s exhibit 3 in evidence. The AAHSTO design manual does not deal with the space between the grate and the frame. Tarry indicated that the grate is standard, that his office was not involved in the design of the frame, including the spacing, and that on the contract specifications, there is no designation of how much space should be left between the frame and grating.

Tarry testified that such space in any of the grates, “could vary from five eights of an inch to an inch and a quarter. But it would, it would generally be about an inch.” Looking at photos of the grate, Tarry said it was within standards, but added that were it wider than an inch and a quarter, “it would seem to be outside it but from what I can tell here it’s within standards.”

One of the photographs shows a tape measure across the gap, which Dr. Arato testified was “a little bit less than two inches” (cl exh 3). Shown this photo, Mr. Tarry said the gap looked to be an inch and a quarter, and in looking at a different photo (cl exh 7), thought the space was one inch, but conceded that in his deposition, he had described it as an inch and a half (when asked if it was two inches wide). Maintenance supervisor Bahnsen testified when shown photos of the subject grate (cl exhs 1 and 2) that the space was not more than an inch wide.

The tape measure in exhibit 3, which looks smudged, is difficult to read. The clearest indicators are the numerals “2,” “3,” and “4.” The distance between an adjacent pair (2 and 3, or 3 and 4) is presumably one inch. Looking at the exhibit, to this trier of fact, the gap is barely wider than one inch.

In any event, there is no standard thereon. Dr. Arato testified that these grates exist every couple of hundred feet along the route he biked, and claimant offered what he called a normal grate (cl exh 8), but could find no other grate like the Miller Avenue grate.
While the State has a duty to maintain its roads, including bicycle routes along them, in a reasonably safe condition, that does not make it an insurer. Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976); Clairmont v State of New York, 277 AD2d 767, 716 NYS2d 760 (3d Dept 2000), lv denied 96 NY2d 704, 723 NYS2d 131 (2001).

To implicate liability, claimant must show that a dangerous condition existed which was either created by the defendant, or if not so created, was known or should have been known and could have been remedied. See Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986).

As for whether this was a dangerous condition, there were, as noted, no recognized standards that claimant, who did not call an expert, relied upon. DOT’s Tarry testified that anything over one and a quarter inches was too wide, albeit without giving a source and as noted, the pictorial evidence is unclear as to just how wide the gap was. But with that said, a bicycle tire could – and of course did - - fall into the gap at Miller Avenue, a grate within a designated bike lane.

Claimant may thus have shown that such was a dangerous condition. But he fails to prove either that the State created the gap, or that it had actual or constructive notice thereof.

As for creating same, this was a standard grate, and, as we learned, the only one available on the market. The grates may be removed to clean out a clogged drain (“[we] rock them back, tilt them out”), but that is insufficient to prove that defendant created the gap. As Tarry and Bahnsen testified, the bolts securing the grates have some give to them. Moreover, although located in the highway shoulder, the grates are subject to some vehicular traffic.

There was one similar such incident involving a grate and bicycle in 1999 which occurred at a different location. Both Tarry and Bahnsen testified that there were no complaints about the Miller Avenue grate. Dr. Arato, who testified that he bicycled this route hundreds of times and that “it’s possible” he had ridden over this grate “many times” previously, never saw the gap.

As for constructive notice, these grates exist every couple of hundred feet; some grates may be removed for cleaning, but there was no showing that anything was done to the Miller Avenue grate. Tarry testified in his deposition that the grates were inspected to see that they were securely bolted down, but not for the spacing from the frame. Given the evidence - - including that there was no explicit standard that the actual width of the gap was subject to different estimates, and that traffic and give in the bolts could affect the grates - - claimant has not met his burden of proving constructive notice.
In view of the foregoing, the claim of Dr. Michael Arato (no. 111030) is dismissed, and the Clerk of the Court is directed to enter judgment accordingly.

March 31, 2009
New York, New York

Judge of the Court of Claims