New York State Court of Claims

New York State Court of Claims

VALENTI v. THE STATE OF NEW YORK, #2009-032-500, Claim No. 109524


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:
The Scagneli Law Firm, P.C.
By: Eric R. Gee, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
January 16, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arose on August 2, 2002 when claimant Philip Valenti, Jr.[1] suffered a serious injury to his right leg as he was attempting to dock his boat at Riverside Park, Coxsackie, New York, on the Hudson River. In the process of attempting to maneuver the boat near the dock to tie it up, claimant went into the water and sustained a serious cut on his right calf when his leg came into contact with an unidentified object under the water. This action against the State of New York is based on allegations that defendant maintained the park and boat dock in an unreasonably dangerous and defective condition.

The day of the accident was a Friday, which was claimant’s day off. Between 1:00 P.M. and 1:30 P.M. he had gone to Hagar’s Harbor, a bar/restaurant and boat docking facility located in Athens, New York. For the summer of 2002, claimant and his wife, Michele Valenti, rented mooring space at this facility for their 20-foot pontoon boat (Exhibit 1). During the afternoon, claimant occupied himself by visiting friends at the bar and getting the boat ready for a planned trip on the river. Claimant stated that because the boat was moored near the outside clam bar, there was always “tons” of debris that had to be cleaned off the boat, and he also drove to a nearby Stewart’s store to get gas. During this time, claimant reported, he consumed “a couple” of beers.

At approximately 4:00 P.M. Michele Valenti arrived at Hagar’s Harbor and the couple had a light meal, during which they each consumed two beers with dinner. The couple then decided to go visit a friend, who lived near the docks at Riverside Park in Coxsackie, to see if he would like to go for a boat ride with them. Claimants were familiar with the docks at that location and had been there four or five times previously during the summer.

The Valentis left Hagar’s Harbor on their boat between 5:00 P.M. and 6:00 P.M. and headed north toward Coxsackie with claimant driving. Along the way, they stopped at one of the river islands and, after pushing the boat up on the sandbar, went for a brief swim. During the boat ride and while at the island, Michele drank 2½ to 3 bottles of Mike’s Hard Lemonade and claimant consumed an additional two beers. At trial, claimant acknowledged that he had a total of 7 to 9 beers during the afternoon.

As they left the island, Michele was driving the boat. She testified that she did not feel intoxicated, but believed her husband may have been slightly inebriated and that was part of the reason she took over the driving. On the other hand, she also stated, it was not unusual for them to swap the driving back and forth during an outing. Both claimant and his wife recalled that the weather was warm and clear, but windy, and that there appeared to be some lightning, indicating a storm, far to the south.

Michele Valenti testified that normally when she drove the boat, she would bring it in close to the Coxsackie docks and then ask her husband to take over for the final adjustments. On this occasion, however, the water was rather choppy and so she asked him to take control somewhat sooner than usual, about 20 to 30 feet south of the docks. Once he was at the controls, claimant drove the boat beyond the docks and then looped back, so that he was approaching from the north.[2] Michele went to the front of the boat, intending to jump off and tie it to the forward cleats in the dock. Because of the choppiness, the boat kept moving back, away from the dock. She did not feel confident about jumping the distance to the dock and asked her husband if he would tie the boat at the front. She then moved to the opening in the middle of the boat, intending to get off at that location and tie the back of the boat after the front tie had been secured.[3]

According to Michele, the water was still so choppy that her husband was unable to get the boat close enough to the dock to safely make the jump:
[I]t had moved about, between one and two feet away from the dock. He realized that he couldn’t, um, jump [onto] the dock so he just decided he was going to go into the water. And that’s what he did, he went “Oh, well,” and he went in and figured he would tie it up, you know, through the water.
(TR-I: 19.)[4]

Claimant’s account of the events leading up to this point agrees in all significant respects with his wife’s account. He stated that she almost always asked him to dock the boat because, in truth, she did not do that part so well. After taking over the controls on this occasion, he maneuvered the boat around, causing it to enter the docks from the north rather than the south, to position the driver side (starboard) against the dock. He then followed his standard procedure of shutting off the engine and allowing the boat to glide toward the dock. As claimant remembered it, he was the one who decided to go to the front of the boat and told his wife to move back so that she could tie the back after he had secured the front.

By the time he reached the front of the boat and picked up the rope that he intended to use to tie it, the boat had already pulled back, away from the dock about two feet. Claimant said that he felt that he could not jump all the way to the dock and, about that time, his wife told him she would not be able to tie the back. “So, what happened, we were having fun that day, I guess. I, I just went, ‘Wee,’ I jumped off, like having fun, I went in the water” (Tr II: 35). On cross-examination, claimant described further:
[B]y the time I left the steering wheel and coasted in and got to the front of the boat, it has already. . . pulled away about two feet. . . . Now, I’m grabbing the rope and I’m looking up and I see we’re two feet away, I mean, there’s no way I’m gonna jump to the dock. . . . So, I just jumped in.
(Tr II: 48-49)

Once he was in the water, claimant recalled, he let go of the rope and went straight down until his feet touched the bottom of the river. He was looking up toward the surface and estimated that his head was about four feet under water at that point. As he pushed himself up from the bottom to go back up to the surface, he felt a “sharp object” hit his right leg. Floating toward the surface, he saw his wife above him looking down. At first she was smiling and then, according to claimant, her face went white. She shoved the boat’s ladder toward him and, as he tried to take a step on it, he realized that his leg was badly cut. He saw blood in the water and “half my calf was hanging out” (Tr II: 35). According to Michele, she had already moved the ladder to the front of the boat, so that claimant could climb on the boat, before she looked down and saw the blood “gushing” from his leg (Tr I: 20).

Claimant fell back in the water and Michele let go of the ladder, which was then lost to them. Claimant and his wife both started yelling for help and a woman who had been sitting on a bench in the park asked if she should call 911. Michele said that she should and then turned back to try to help her husband. By both accounts, he was positioned in the middle of the front of the boat, both when he went into the water and after he was injured and fell off the ladder. Holding on to Michele’s hand, he started “walking” along the side of the boat to get to the opening in the middle. Michele kept hold of him so that he would not go under the boat, walking on the boat’s seats as they made their way around to the side. At one point claimant went underwater and his wife began to scream, but he floated back up and continued around the boat.

When claimant reached the side door, he realized that he could only get onto the boat by putting his weight on his right leg which was useless. Refusing to give in, however, he told Michele to continue to help him get to the other side, and they proceeded to move around the back of the boat to get to the opposite doorway. He was then able to use his left arm and his good leg to get partway onto the boat. Michele then pulled him up the rest of the way by grabbing him under his arms and “falling” backwards.

During these maneuvers, the boat had drifted away from the dock, a distance that claimant estimated to be between 100 and 300 feet away and which Michele estimated to be 75 to 100 feet away. He was aware that there was a police officer on shore along with some other men, and that they were yelling at Michele to start the boat and pull into shore. At first, she was unable to get the motor started, but she finally succeeded and was able to drive the boat back toward the dock. Several people then came onboard, put claimant on a stretcher, tied his leg and transferred him to a waiting ambulance.

Both claimant and his wife described their boat as a 20-foot pontoon powered by a 50- horsepower motor located at the rear of the boat under a sundeck structure (Exhibit 1). During normal operation, the engine’s propellers are under the water line. The boat has doorways/gates in the middle of the front of the boat, leading onto a narrow deck, and on each side, where they are flush with the side of the boat.

Prior to this day, neither claimant nor his wife had ever gone into the water at this location, although claimant said they had gone swimming further out into the river. Claimant had also walked into the water, up to his knees, at the boat launch, which was located 75 to 100 feet north of the floating docks, in order to get into his friend’s boat. He could not recall seeing any “No Swimming” signs around the docks and said that he had seen people swim there in the past, although there was no one doing so on the day in question. Claimant acknowledged that he could not see far beneath the surface prior to jumping into the water (Tr II: 51), and Michele said that she had not been able to look into the water immediately before her husband jumped, because she was standing in the middle of the boat waiting to jump off. Neither claimant nor his wife saw what struck his leg to cause the laceration, and neither was ever informed afterwards of what caused the injury.

After claimant was taken from the boat, he was quickly put in an ambulance and sent to Albany Medical Center. Michele Valenti remained at the park to be questioned by police. At trial, she acknowledged that she told them her husband had come into contact with the boat’s propeller: “I don’t know why I said that. . . . I did say that, I was in a state of shock” (Tr I: 43). She did not see her husband again until about 1:30 A.M.

Claimant did not recall speaking to anyone at the accident scene but confirmed that once he was at the hospital he spoke to Sgt. Lurenz and agreed to have his blood drawn for a blood alcohol test. When asked on cross-examination, claimant emphatically denied that he had ever told anyone that he cut his leg on the boat’s propeller. In fact, he testified, he told the officer he had no idea what caused the cut.

The final witness with information about the day of the accident was Patrick Lurenz, who in 2002 was a first-year Police Officer for the Village of Coxsackie. On the day in question, he received a radio dispatch around 6:00 P.M., informing him about some sort of distress at the village boat launch. Lurenz was about a mile away from the park when he received this message, and he responded immediately, as did others on the force. When he arrived at the park, he saw a boat about 50 to 100 yards offshore, with one person in the water and another partially on the boat and partially hanging over the side. One of the other policemen present, Sgt. Brian Lutz, had commandeered a small boat with a motor, and other officers obtained jet skis from a private party who had been loading several into his vehicle. Lurenz used one of the jet skis, but by the time he got it into the water, Sgt. Lutz was already bringing the boat back to shore.

Officer Lurenz observed the Valentis that day. Mr. Valenti appeared to be impaired, with a glassy-eyed look, slurred speech, and an uncertain recollection of events. On cross-examination, Lurenz acknowledged that these could be indications of shock, not necessarily signs of inebriation, but he stated that he had also smelled the odor of alcohol on Mr. Valenti’s breath. Later, at the hospital, he asked claimant how much alcohol he had consumed, and claimant replied that he had had about a twelve-pack of beer. Lurenz witnessed a blood sample being drawn from claimant, with his consent. The sample was subsequently found to have a blood alcohol level of .15 (Exhibit E).

While still at the boat launch, Lurenz had been able to ask claimant how he had hurt himself. At trial, he described the response.
[Claimant] said that while on their boat, they had traveled from the Athens, um, vicinity, up river to Coxsackie to the area of the Coxsackie boat launch. Uh, and while attempting to either dock or tie up or somehow secure their boat, um, that the boat had, uh, either hit the dock or somehow lurched or moved and he fell off the rear portion of the boat into the water, and the moving prop had struck his leg . . . [o]r that he had struck the prop, I guess . . .
(Tr II: 83.) This account was also written into the Police Investigative Report that Lurenz prepared later in the evening (Exhibit C).

Several employees, past and present, of the State of New York and the Village of Coxsackie also testified. Two of the State employees were Christopher Fallon, Park Manager of Thatcher State Park at the time of the accident, and Michael Krish, Fallon’s predecessor, who had been Park Manager from 1987 to 1999. Both men reported that this Park Manager position carries with it responsibility for overseeing the Hudson River Island State Park, including its 18 primitive campsites and the Athens and Coxsackie boat launch sites, which were used by a State vessel to transport staff to and from the island park. Work crews under their supervision would go to the Riverside Park in Coxsackie several times a week, sometimes daily, and their chief responsibilities there were to check the equipment at the playground adjacent to the boat launch, make sure the boat launch site itself was free of debris or other hazards, and check the vessel that was kept there.

The boat launch site is located about 400 feet south of the floating docks where claimant’s accident occurred, and it was the understanding of both Fallon and Krish that those floating docks were maintained by the Village of Coxsackie. Fallon identified Exhibit 6 as the agreement between the State and the Village of Coxsackie that was in effect in 2002. This document acknowledges that the New York State Office of Parks, Recreation and Historic Preservation has jurisdiction over the boat launch and “related areas commonly known as Coxsackie Riverfront Park and Boat Launch” and by the agreement, the Village was permitted to operate and maintain the site as a recreational facility. The Village’s maintenance responsibility was limited to “security, mowing, snowplowing, trash removal, repairs to bollards, landscaping, turf maintenance, leaf removal and general upkeep of the property.” The Village would not be responsible for the boat launch itself or for the maintenance or repairs of adjacent paved access and parking surfaces. The agreement makes no reference to the floating docks.

Exhibit 10, which was identified by Fallon as an accurate picture of Riverside Park as it appeared in 2002, shows some stone or rocks alongside the shoreline. Neither Fallon nor Krish knew who had placed the material there, but both assumed that it had been put there to help stabilize the shoreline. Neither of these witnesses recalled ever seeing any “No Swimming” signs, although Krish believed that swimming was not allowed. Finally, both witnesses were familiar with the wooden floating docks that were installed by the Village at the beginning of the season and removed at the end of the season for many years. Neither could recall receiving any complaints relating to these docks or reports of injury occurring on or near them.

George Igler, former Regional Capital Facilities Manager for the State Office of Parks and Recreation, testified that it was his understanding the State had acquired the Coxsackie boat launch and surrounding property in 1961 (Exhibit 2 [acquisition map]; Exhibit 5 [memorandum reciting history of property]). As part of his job responsibilities, he was in charge of any construction that occurred under the jurisdiction of the agency in the region, and he was familiar with a reconstruction project for the Coxsackie park site that was in the planning stages around the time of claimant’s accident. Exhibit 2 shows the conditions existing prior to the rehabilitation (i.e., as they were at the time of claimant’s accident), while Exhibit 17 shows the area with the planned improvements.

In 2002, as they were preparing the reconstruction project, Igler saw the stone and concrete pieces along the shoreline, but he had not seen them when he was at the site in 1980. He did not know the origin of the material, who put it along the shoreline, or precisely what purpose it served. With respect to the floating docks that were at the location (shown on Exhibit 2), it was Igler’s understanding that they were owned and maintained by the Village of Coxsackie.

Stephen McCorkell, a Senior Landscape Architect with the Office of Parks and Recreation, served as project manager for the major boat launch reconstruction project about which Igler testified, a project that began to be implemented in 2003. He identified Exhibit 15 as a portion of the technical specifications for the reconstruction project, which featured a new bulkhead at the deep-water docking area, concrete sidewalks, new floating docks, a gangway down to the docks, and stabilizing bars to hold the floating docks to the gangway. The project also encompassed repaving and enlarging the parking area, rebuilding the existing boat launch, improving the landscaping, and relocating the basketball court and the park entrance. Once the project was complete, the new docks would be owned and maintained by the State. McCorkell confirmed that the previous wooden dock assembly, which had been in use at the time of claimant’s accident, belonged to the Village of Coxsackie (Tr: 97).

With respect to the stone or concrete along the shoreline, McCorkell testified that it had been placed alongside the old timber bulkhead primarily for erosion control. He did not know who had placed it there, only that it had not been the Office of Parks and Recreation. During the reconstruction project, some of this stone was removed, but most of it was simply buried behind the new steel bulkhead, which was built 18 inches further into the water than the existing timber bulkhead. As with the other State witnesses, McCorkell could not recall seeing any “No Swimming” signs posted in the area, but he stated that it was the policy of the Office of Parks and Recreation to prohibit swimming around the boat launch. Although he frequently saw debris accumulate along the shoreline or at the boat launch site, he was not aware of any accumulation in the deep-water area around the floating docks. Such an accumulation would be unlikely, he explained, because the river at that location would have currents below the surface, related to the tidal change, causing water to flush in and out around the docks.

Ward Collesides was the Superintendent of Public Works for the Village of Coxsackie in 2002. He testified that his crew of four was involved primarily in mowing, putting docks in in the spring and taking them out in the fall, and providing basic maintenance and upkeep of the gazebo. The Village did little, if any, work along the shoreline or on the riverbed, he said, because that was State property and the agreement between the Village and the State (Exhibit 6) provided only for the Village to maintain the park by mowing, plowing, and keeping the boat launch open and free of debris. For anything else, they needed the State’s permission.

The floating docks that were in use at that location in 2002 were owned and maintained by the Village, and if they needed to be repaired, it was the Village that would do the work. Collesides was not aware of any complaints about these docks or any reports of injury on or around them.

With respect to the stone that was located along the shoreline prior to the reconstruction, Collesides understood that it came from an old fertilizer plant that had been torn down many years ago and the rubble from its foundation used to reinforce the shoreline. He was not sure, however, who would have placed it there. He believed he recalled seeing a “No Swimming” sign on the floating docks, probably around 2001 or 2002, but he stated that the Village would not have put up such a sign, again because the property was owned by the State.

Collesides had only been Superintendent of Public Works for a year when claimant’s accident occurred. His predecessor, John Halstead, held the position from 1992 to 2000, and the transcript of his deposition (Exhibit 18) was placed into evidence. Halstead gave a similar account of his Department’s responsibilities during that time, and confirmed that the Village had no responsibility with respect to the boat launch, which was managed by the State.

Halstead described the floating docks in greater detail than the other witnesses, explaining that they were comprised of five or six sections which were moved into place by a backhoe. The sections were connected by four hook cables threaded through an eyebolt, with long pipes that slid through each dock section so that they would be stable and rock up and down in unison. The docks were then attached to the concrete pier by an A-frame that jutted out from the pier. The docks themselves floated on plastic barrels and there was nothing between them and the riverbed. Photographs from his deposition (labelled Exhibits 3 through Exhibit 12 of Exhibit 18A) show the floating dock in detail.
To establish a prima facie case of negligence a claimant must establish “(1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury suffered by the plaintiff which was proximately caused by the breach” (Kampff v Ulster Sanitation, 280 AD2d 797 [3d Dept 2001 ]; Murray v New York City Hous. Auth., 269 AD2d 288 [1st Dept 2000]). In the instant case, any duty owed by the State to claimants would arise from its status as the owner of the property on which the injury occurred. “As a landowner, the State has a duty to use reasonable care under the circumstances in maintaining its property in a safe condition” (Colangione v State of New York, 187 AD2d 844, 845 [3d Dept 1992], quoting Basso v Miller, 40 NY2d 233, 241 [1976]). The duty to exercise reasonable care requires that the State, as the owner and operator of a recreational area, protect the public from foreseeable risks of harm (see Basso v Miller, supra). Like any other landowner, however, the State is not an insurer of the safety of those using the property for recreational purposes, and the mere happening of an accident does not render the State liable (see Paul v Kagan, 92 AD2d 988, [3d Dept 1983]).

Latent hazards give rise to a duty to warn entrants and protect them from that danger (see Tagle v Jakob, 97 NY2d 165 [2001]; Soich v Farone, 307 AD2d 658, 659 [3d Dept 2003]). Where the condition is open and obvious, a landowner's duty to maintain the property in a reasonably safe condition is not obviated; it merely negates the requirement to warn of such a condition (see MacDonald v City of Schenectady, 308 AD2d 125 [3d Dept 2003]). In either case, however, a claimant must still demonstrate that the risk of harm was foreseeable because the State had actual or constructive notice of the condition and failed to act reasonably to remedy it (see e.g. Morrow v Ashley, 3 AD3d 619, 620 [3d Dept 2004]).

Consequently, in the instant case, in order to establish that there was a breach of duty by defendants, claimants must prove by a preponderance of the credible evidence that: (1) a dangerous condition existed; (2) the defendant either created the dangerous condition or had actual or constructive notice thereof and failed to warn of the danger or eliminate the danger within a reasonable time; and (3) such condition was a proximate cause of the claimant’s injury (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Dapp v Larson, 240 AD2d 918 [3d Dept 1997]; Ligon v Waldbaum, Inc., 234 AD2d 347 [2d Dept 1996]; Bernard v Waldbaum, Inc., 232 AD2d 596 [2d Dept 1996]).

The first and third elements are easily proven. There was, without doubt, some sort of dangerous object in the water or on the riverbed in the area next to the floating dock and that object caused claimant’s injury. For the State to be liable for those injuries, however, claimants must still prove that it had actual or constructive knowledge of the hazard and failed to warn and/or take corrective measures to remove it.

The Court of Appeals has described the burden in situations such as this as follows: “There must be some proof that the potential danger reasonably could have been neutralized and that its existence was or should have been discovered by the State” (Preston v State of New York, 59 NY2d 997, 998 [1983] [park patron stepped on rusty, jagged pipe several inches underwater in an area especially designated for swimming]). Claimants’ difficulty in the instant case is of proving that the State either created the dangerous condition or had actual or constructive notice thereof, and then failed to warn of the danger or eliminate the danger within a reasonable time.

When the hazard that caused injury is identified, either immediately or after subsequent investigation, it is then possible to determine whether the landowner had a duty to take the steps that would have been necessary to learn of its existence and take appropriate steps. A case in point is Schiff v State of New York (31 AD3d 526 [2d Dept 2006]), involving a canoeist who disembarked at a canoe launch site and impaled his leg on a rusty metal rod, partially encased in concrete, which was submerged in about three feet of water. The trial court granted judgment in favor of the claimant, holding that the State, which had developed the site for use by canoeists, should have inspected the area to make sure that it was safe for such use. Because it had this duty to inspect the area for such hazards and would have discovered the danger if it had inspected, the State was held to have constructive notice of the dangerous object (Schiff v State of New York, UID #2004-033-077, Claim No. 107777, Motion No. M-68136 [Ct Cl Sept. 30, 2004], Lack, J.). On appeal, the Second Department reversed, holding that the State had no such duty:
Although a duty to inspect for underwater hazards has been recognized where the State invites the public to swim at a posted beach (see Preston v State of New York, 59 NY2d 997 [1983]), the State is not required “to scrutinize every square foot of riverbed and lakebottom that it owns” (id. at 998), and we decline to impose a duty upon the State to conduct an underwater inspection at a canoe launching site.
(31 AD2d at 529.)[5]

Here, however, the identity and nature of the object that cut claimant’s leg is unknown and, therefore, it is simply impossible for the Court to decide what, if anything, the State could have done to become aware of the hazard and take steps to either remove it or provide warnings. It is impossible, therefore, to define the nature of the duty that the State allegedly breached and to connect such breach to claimant’s injury.

Claimants argue that the State was on constructive notice of dangerous and defective conditions at Riverside Park because of the area of rough stone and concrete that lined the shoreline not far from the floating docks. It would be sheer speculation, however, to conclude that the object claimant encountered was in any way connected to the stone and concrete riprap or even to conclude that some portion of that material would have made its way to the area of the docks. The only testimony suggesting movement of any sort dealt with some shifting of stones at the top of the pile, out of the water and adjacent to the grassy area.

In other words, claimant’s injury could have been caused by any of a number of hazards that were underwater at that location at that precise time, and none of these potential causes is significantly more probable than the others. It is no more likely that claimant was injured by a portion of the stone or concrete that had migrated to the floating docks than by a floating object carried along in the tidal current at that location at that precise moment. There also remains the possibility, supported by some of the evidence, that the cut was actually caused by the boat’s propeller, the only sharp object that is known to have been in the immediate vicinity.

The rule is well settled that “[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury” (Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987], quoting Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; Wiwigac v Snedaker, 282 AD2d 801 [3d Dept 2001]). Although it is not necessary for an injured party to rule out every remote possibility of other causes, where as here, there is no proof as to what actually caused the injury and where there could be more than one potential cause, there can be no recovery (Dapp v Larson, 240 AD2d 918 [3d Dept 1997]; Leary v North Shore Univ. Hosp., 218 AD2d 686 [2d Dept 1995]; Kornhuber v State of New York, 196 AD2d 629; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]; Earle v Channel Home Ctr., 158 AD2d 507 [2d Dept 1990])

The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim.

Let judgment be entered accordingly.

January 16, 2009
Albany, New York

Judge of the Court of Claims

[1].The claim of Michele Valenti is derivative in nature and unless otherwise indicated or required by context, the term “claimant” shall refer to Philip Valenti, Jr.
[2].The path taken was marked with a pen on Exhibit 12.
[3].Exhibit 3, a side view of the boat, shows where Michele was standing after she moved back (MV) and where her husband was standing (PV).
[4].The trial transcript consists of two volumes, I and II, each of which begins with page number 1. For instance, the quotation at the top of the page is located on page 19 of the first volume of the transcript.
[5].Claimants in this action attempt to distinguish Schiff on the ground that the floating docks at Riverside Park served not only as a place to moor or launch a boat or canoe but also as an attraction for fishermen, children and other persons who wished to enjoy the waterfront. It can be argued, however, that persons are even more likely to actually go into the water at a canoe launch site than they would be in the area of a floating dock. In any event, this argument ignores the most critical difference between Schiff and the instant action: in Schiff the object that caused the injury was identified, while in this case it was not.