New York State Court of Claims

New York State Court of Claims
CASSONE v. THE STATE OF NEW YORK, # 2009-033-366, Claim No. 114701, Motion No. M-76945


Case information

UID: 2009-033-366
Claimant short name: CASSONE
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 114701
Motion number(s): M-76945
Cross-motion number(s):
Judge: James J. Lack
Claimant's attorney: Sullivan Papain Block McGrath & Cannavo, P.C.
By: Jeffrey B. Bromfeld, Esq.
Defendant's attorney: Ahmuty, Demers & McManus, Esqs.
By: Frank J. Pecorelli, Jr., Esq.
Third-party defendant's attorney:
Signature date: December 31, 2009
City: Hauppauge
Official citation:
Appellate results:
See also (multicaptioned case)


This is a claim for personal injuries by Angela Cassone (hereinafter "claimant") due to the alleged negligence of the State of New York (hereinafter "defendant"). Claimant was participating in a "Breast Cancer Walk" at Jones Beach State Park, Wantagh, New York. The incident occurred on October 21, 2007, on the boardwalk. At approximately 11:30 a.m., claimant tripped and fell on an orange cone nailed to the boardwalk. Defendant admits it nailed the cone to the boardwalk to warn about a defect in the boardwalk. The claim of Anthony Cassone is derivative in nature.

Defendant moves this Court for summary judgment on the issue of liability(1) . Defendant argues claimant tripped on a warning device. The cone claimant fell on is approximately 2 feet tall and orange. It is defendant's position the cone is an open and obvious condition. The cone was placed on the boardwalk to warn about a defective condition. Defendant sees no support in placing a burden upon it to place a warning device to warn about a warning device.

In opposition to the motion, claimant argues the warning device was inadequate given the number of people on the boardwalk participating in this walk. Claimant, her daughter and her daughter's friends attended this cancer walk to raise money. According to both sides, 40,000 to 50,000 people participate in this walk, which takes place on the boardwalk. The participants walk down the right side of the boardwalk. When the walkers reach the end of the boardwalk, they turn around and walk in the opposite direction on the other side of the boardwalk. Claimant states it was impossible to see in front of her. Other participants were within an arm's length to claimant. Claimant states she did not see the cone until she tripped on it.

Summary judgment is a drastic remedy which deprives a party of its day in court and should not be granted where there is any doubt as to the existence of a material issue of fact (Moskowitz v Garlock, 23 AD2d 943; Epstein v Scally, 99 AD2d 713). The Court's function is to determine if an issue exists. In doing so, the Court must examine the proof in a light most favorable to the party opposing the motion. Summary judgment may only be granted if movant provides evidentiary proof in admissible form to demonstrate that there are no questions of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851; Wanger v Zeh, 45 Misc 2d 93, aff'd 26 AD2d 729). Once the movant has demonstrated a prima facie entitlement to summary judgment as a matter of law, the burden shifts to the opposing party to submit evidentiary proof in admissible form sufficient to create an issue of fact or demonstrate an acceptable excuse for his failure to submit such proof (Alvarez v Prospect Hosp., 68 NY2d 320). Mere conclusions, speculation or expressions of hope are insufficient to defeat the motion (Amatulli v Delhi Constr. Corp., 77 NY2d 525).

From the evidence presented, it is clear no significant issue of fact exists.

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 foreseeable 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).

A landowner has no duty to warn of an open and obvious danger that can be readily observed by the use of one's senses, however (Tagle v Jakob, 97 NY2d 165) "[u]nder such circumstances, the condition is a warning in itself" (Tarricone v State of New York, 175 AD2d 308, 309).

Defendant indicates the boardwalk is continually inspected for defects. When a defect is found, a large orange cone is nailed over the defect to serve as a warning until it can be fixed.

Claimant's expert indicates that due to the large number of walkers present on the boardwalk defendant should have cordoned off this area or shut down this part of the boardwalk.

Claimant seeks to shift the consequences of her inattentiveness to defendant. The Court is aware a large number of people were on the boardwalk. At the time of the incident, claimant was also aware this large number of people were participating in this walk. Thus, claimant needed to exercise a level of care and attentiveness appropriate to the conditions.

Based upon the foregoing, defendant's motion for summary judgment is granted and the claim is dismissed.

December 31, 2009

Hauppauge, New York

James J. Lack

Judge of the Court of Claims

1. The following papers were read and considered on defendant's motion: Notice of Motion dated July 14, 2009 and filed July 15, 2009; Affirmation in Support of Frank J. Pecorelli, Jr., Esq. with annexed Exhibits A-G dated July 14, 2009 and filed July 15, 2009; Affirmation in Opposition of Jeffrey B. Bromfeld, Esq. with annexed Exhibits 1-7 dated August 18, 2009 and filed August 20, 2009; Affirmation in Reply of Frank J. Pecorelli, Jr. Esq. dated September 8, 2009 and filed September 9, 2009.