PEREZ v. THE STATE OF NEW YORK, #2009-040-081, Claim No. 113089
Claimant, a police officer, was walking from safety checkpoint to his vehicle
when he stepped in hole on exit ramp of State highway. Court finds ramp was
reasonably safe for intended purpose, pothole was not a dangerous condition, and
no notice of condition.
HECTOR P. PEREZ AND CARMEN PEREZ
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
CHRISTOPHER J. McCARTHY
DAVIS & HERSH, LLPBy: Ian M. Sack, Esq.
ANDREW M. CUOMO
Attorney General of the State of
New YorkBy: John M. Shields, Esq., AAG
October 28, 2009
See also (multicaptioned
Claimant, Hector Perez
, failed to establish
by a preponderance of the credible evidence that the State of New York was
negligent in connection with personal injuries he sustained. A bifurcated
trial, addressing liability issues only, was held on May 5-7, 2009 at the Court
of Claims in Hauppauge, New York. There were six witnesses: Claimant; Suffolk
County police officer (“P.O.”) Zacarias Alvarado; New York State
Department of Transportation (“DOT”) employees Michael Zillmann,
John McNeil and Roy Reissig; and Claimant’s expert witness, William
Marletta, Ph.D. Thereafter, the parties were granted additional time to submit
On the early afternoon of November 26, 2005, Claimant was on duty as a member
of the Suffolk County Police Department Highway Patrol Unit. He was one of
three uniformed officers assigned to set up and conduct a seatbelt and safety
checkpoint on the Exit 44 ramp from the westbound service road of New York State
Route 27 (“Sunrise Highway”), that connects to southbound Brentwood
Road, located in Bay Shore, New York. Claimant was injured, while he was
discharging those duties, when he stepped onto an uneven, deteriorated, and
discolored portion of pavement on the ramp. It was a clear, cold, dry
The ramp is in the northwest quadrant of a cloverleaf interchange at the point
where Brentwood Road passes over Sunrise Highway. The interchange permits
communication of traffic between the two roads in all directions (see
Exs. 19, B). In that area, the main line of Sunrise Highway consists of
three travel lanes, plus a shoulder lane in each direction, for a total of eight
lanes running east-west. The service road has two or three additional travel
lanes in each direction, depending upon the location. Brentwood Road also has
two or three lanes in each direction.
The ramp where Claimant fell is a one-way road that curves to the right as it
runs from Sunrise Highway’s service road up to and onto Brentwood Road.
The roadway is made of concrete and consists of one lane, though it is wider
than a single car width.
On each side of the
ramp there are curbs, grassy medians, and guide rails. There are no sidewalks
adjacent to the ramp. The grassy median and guide rail on the exterior of the
curve separate the ramp from another ramp that descends from Brentwood Road onto
the westbound Sunrise Highway service road. Beyond that descending ramp are a
curb, sidewalk, and fence, with a residential area behind it. Beyond the guide
rail on the interior curve of the ramp is a densely wooded area. Interwoven
with the brush is a chain link fence that is about six feet tall, with barbed
wire on top. Beyond the fence, in the center of the cloverleaf, there is a
recharge basin, or sump. A mixed commercial and residential area surrounds the
cloverleaf interchange/ramps. There are no buildings located within the centers
of the cloverleaf ramps.
P.O. Alvarado had conducted seatbelt and safety checkpoint inspections on the
ramp in question “a handful of times before” (Tr., v. I, p. 29).
Claimant’s recollection was confused. At trial, he could not remember
having worked a checkpoint at that ramp in the past. At a 2007 examination
before trial, however, he believed that he had done so (Tr., v. I, pp. 147,
The two officers described the checkpoint in similar terms. Three marked
Suffolk County police vehicles were parked in a line, one in front of another,
on the left-hand side of the ramp, with their overhead red and blue lights
activated. Two columns of cones were placed behind the last police vehicle to
funnel traffic into a lane that was wide enough for only one vehicle to safely
proceed. The placement of the cones also forced vehicles to slow down as they
approached the officers. The officers stood facing the driver’s side of
approaching vehicles to check whether or not occupants were wearing seatbelts.
Those who were not wearing seatbelts were directed to pull over. Typically,
they parked on the left side of the ramp some thirty or forty feet beyond the
officers, at a point where the ramp begins to enter its final curve as it
approaches Brentwood Road. P.O. Alvarado marked, in black ink, the aerial
photograph of the ramp that is Exhibit B with an “A” to indicate
where the police units were located and boxes to indicate where cars pulled over
(Tr., v. I, p. 76-80; see Ex. B). P.O. Alvarado also said that officers
made sure to position vehicles, cones and themselves, so that the location was
safe. Both officers stated, however, that they did not walk the ramp to inspect
the pavement surface prior to setting up the checkpoint (Tr., v. I, pp. 46-47,
The officers had been at the checkpoint for less than thirty minutes when
Claimant fell. The two officers appear to have somewhat inconsistent
recollections about where Claimant began the walk that ended in his fall,
although they seem to be in accord with respect to how the fall itself occurred.
Claimant testified that, for the second time that day, he directed a driver to
pull over. The car joined several other vehicles already parked on the
left-hand side of the ramp. He obtained the driver’s information and
walked back to his police vehicle in order to prepare a summons. He then walked
back to the car to deliver the summons. Claimant stated that he stepped off the
pavement and onto the grassy median to speak with the driver because the vehicle
was parked so close to the curb that there was no room to stand on the roadway
itself. The vehicle he issued a summons to was the first car in line, closest
to Brentwood Road. Claimant marked Exhibit 19 to indicate where the cars had
pulled over, drawing the number “1” to indicate the car he cited and
a stick figure to represent where he was standing (Tr., v. I, pp. 165-166;
see Ex. 19). After delivering the summons, Claimant again stepped from
the grassy area onto the pavement to walk back to his police unit. He said he
preferred to walk on the roadway because the grass was uneven and littered with
bottles, dog excrement and other debris.
Claimant testified that, as he stepped off the curb and started walking, he was
watching another car, that was parked behind the vehicle to which he had just
issued the summons, pull away from the curb (which he indicated by the number
“2” on Exhibit 19, with an arrow to mark the direction in which it
moved). P.O. Perez also was looking to make sure there was no oncoming traffic
(Tr., v. I, pp. 166-167; see Ex. 19). He was not sure whether vehicle
number 1was still parked when vehicle number 2 pulled away (Tr., v. I, p. 187).
Claimant stated that he took perhaps four or five steps before he fell. He
tried to stand up, but collapsed back down so that he was sitting in a
“hole” in the pavement (Tr., v. I, pp. 171-172). He testified that
he was unable to identify the exact spot where he fell. “I fell, you
know, as soon as it happened, I couldn’t tell. I wasn’t looking
down to really know exactly the exact spot where I fell into the pothole, where
I stepped into it” (Tr., v. I, p. 169). Claimant testified that he could
not see the condition in the roadway in the moments before his accident because
vehicle number 2 was parked over it. Claimant believed that, when he fell, P.O.
Alvarado was located to his rear and to the left, and that the other officer was
back at the checkpoint (Tr., v. I, p. 178).
P.O. Alvarado, by contrast, recollected that Claimant was walking away from him
and the other officer because Claimant had “told a vehicle to pull
over” which was “pulling over ahead” (Tr., v. I, pp. 47-48).
P.O. Alvarado’s testimony suggests that he and the other officer were at
the checkpoint and that Claimant fell while he was walking up the ramp and away
from the checkpoint to approach the vehicle. In that case, Claimant would have
approached the pothole/condition from a different direction than P.O. Perez
The employee statement contained in the Suffolk County Police Department
Employee Injury Report, dated November 26, 2005, similarly states that Claimant
fell while he was walking from his police vehicle to the checkpoint (Ex. 18).
Claimant admits that he signed the statement, though he testified that the
narrative had been written by his supervisor and was inaccurate. Claimant
testified that, in actuality, he was walking from vehicle number 1 back to his
police unit (Tr., v. I, pp. 183-184).
In any event, P.O. Alvarado stated that he had an unobstructed view of the
accident from where he was standing, 20 to 25 feet away from Claimant (Tr., v.
I, p. 53). He saw Claimant fall, stating that P.O. Perez “crumbled
straight down” so that he wound up sitting in the area of the pothole
(Tr., v. I, pp. 47). P.O. Alvarado agreed that Claimant did not appear to catch
his foot, nor was he pitched forward (Tr., v. I, p. 66). Claimant also stated
that he did not trip on anything (Tr., v. I, p. 180). P.O. Alvarado also stated
that nothing obstructed his view of the pothole/condition just prior to the
fall. He could not recall whether anything had been covering the condition in
the preceding moments (Tr., v. I, p. 53).
Claimant and P.O. Alvarado each identified Exhibits 2-6 as fair and accurate
depictions of the ramp as it looked on the date of the accident (Tr., v. I, pp.
P.O. Alvarado also circled, in
black ink, the aerial photograph that is Exhibit B to indicate the area in which
the discolored pavement is visible (Tr., v. I, p. 78; see
Claimant, likewise, circled a dark spot on the ramp depicted in the enlarged
aerial photograph that is Exhibit 19, and depicted vehicle number 2 parked over
it (Tr., v. I, pp. 157-158; see
Mr. Reissig described the condition as “a section of distressed and
deteriorated concrete that [DOT] would consider a concrete spall area,”
adding that a “spall is similar to what’s considered a pothole but
spalling occurs in concrete pavement where the top part of the surface tends to
deteriorate and flake away” (Tr., v. III, pp. 487-488; see Exs.
2-6). The DOT employees agreed that the black material within the condition is
asphalt and that its presence suggested that a prior repair was made at that
site (Tr., v. III, pp. 492, 522 [Reissig]; Tr., v. II, pp. 421, 429 [McNeil];
Tr., v. I, p. 99 [Zillmann]). Dr. Marletta also believed a repair had been made
(Tr., v. II, p. 280).
More particularly, P.O. Alvarado described the deteriorated area as
“wide,” “jagged,” “uneven” from the rest of
the pavement surface, with “steep angles” on some sides, “no
angle at all” on other sides, and “some loose gravel” (Tr., v.
I, p. 37). Dr. Marletta also saw “very abrupt” sides in places
(Tr., v. II, p. 252; see Exs. 2-6).
Brownish or reddish lines or stains are clearly visible within the condition.
Claimant noted three thin brown lines that run in the same direction as the
longitudinal pavement seam in Exhibit 2 (Tr., v. I, pp. 173-174; see also
Exs. 3, 5-6). In addition, Mr. Reissig and Dr. Marletta both testified that
they could see brownish or reddish marks elsewhere on the surface of the
pavement, outside of the condition. Dr. Marletta circled, in blue grease
pencil, one such area, visible in each of Exhibits 2, 3, and 5, that is located
between the condition itself and the curb line of the exterior curve of the ramp
(Tr., v. II, pp. 378-384; see Exs. 2, 3, 5 and 6).
Loose debris, particulate, or gravel also is visible in the photographic
exhibits, both within and without the condition. P.O. Alvarado circled, in blue
ink, loose gravel within the deteriorated condition visible in Exhibit 6 (Tr.,
v. I, pp. 48, 62-63; see Ex. 6). Mr. McNeil said that the areas circled
by P.O. Alvarado contained “fresh broken concrete,” that broken
concrete also is visible on the right-hand side of the photographs that are
Exhibits 2 and 3, and that the debris visible in Exhibit 4 also could have
concrete in it (Tr., v. II, p. 422). Dr. Marletta agreed that the sediment,
black stones and other material located in and around the area of deteriorated
pavement come “from the roadway itself. This is part of the deterioration
of the concrete” (Tr., v. II, pp. 256-257).
Several witnesses estimated the dimensions of the condition. Their estimates
ranged from 2-4 feet wide by 2-4 feet long. As to depth, they testified that it
varied from no depth at all in spots to as much as 2½ or 3 inches in other
places (Tr., v. I, pp. 51-52, 54-55 [Alvarado]; Tr., v. I, pp. 177-178
[Claimant]; Tr., v. II, p. 285 [Marletta]; Tr., v. III, pp. 519, 546-548
[Reissig]; see Exs. 1-6). Claimant even thought that the asphalt was
“raised above the concrete” in some areas (Tr., v. I, p. 177;
see Exs. 2 and 3). He testified that the area where he came to sit after
his fall was an inch or two deep (Tr., v. I, p. 172).
The DOT employees agreed that the agency had exclusive jurisdiction and the
responsibility to maintain the roadway, including, Mr. McNeil said, pothole
repairs (Tr., v. I, pp. 86-87 [Zillmann], v. II, pp. 425-426 [McNeil], v. III,
p. 526 [Reissig]). Claimant testified that there were no cones, barricades, or
bright spray paint around the defect. There was “no warning
whatsoever” (Tr., v. I, p. 167).
Dr. William Marletta is a safety consultant with a doctorate in occupational
safety and health, involved with a number of professional organizations that
focus on safety issues, has published extensively and received honors/awards in
that field, has been certified by the New York State Department of Labor to
engage in safety work, and has testified as an expert witness for both
plaintiffs and defendants (Tr., v. II, pp. 224-236; see also
Exs. 7, 8-B,
It was Dr. Marletta’s opinion that the “defective road condition
is, in fact, a departure from good and accepted safe practices, standards within
the industry, standards within the safety profession” (Tr., v. II, p.
291). Specifically, Dr. Marletta believed the condition departed from the
standards of: (1) the American Association of State Highway and Transportation
Officials (“AASHTO”) maintenance manual, 1987, regarding maintenance
of pavement surfaces and patching of potholes; (2) the American Society of
Testing and Materials (“ASTM”) concerning changes in the levels of
walkway surfaces; and (3) the American National Standards Institute
(“ANSI”) with respect to prompt repairs and the placement of
barricades and color-coded safety markings (Tr., v. II, pp. 291-293; see
Ex. 8B, ¶¶ 5-7).
To establish a prima facie case of negligence, Claimant must demonstrate
by a preponderance of the credible evidence that: (1) Defendant owed Claimant a
duty of care; (2) a breach of that duty; and (3) Defendant’s breach of
that duty was a substantial factor in the events that caused the injury suffered
by Claimant (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315
; Donohue v Copiague Union Free School Dist., 64 AD2d 29, 32-33 [2d
Dept 1978], affd 47 NY2d 440 ; Patrick v State of New York,
11 Misc 3d 296, PJI 2:10, 2:70). “In determining whether claimant has
carried [his or] her burden, the Court, as fact-finder, must weigh the evidence
presented after assessing witness credibility and resolving factual
disputes” (Rice v State of New York, Claim No. 107632, June 19,
2006, Hard, J. [UID No. 2006-032-505; see Burton v State of New York, 283
AD2d 875, 877 [3d Dept 2001]).
The State has a duty to maintain its facilities “in a reasonably safe
condition in view of all the circumstances, including the likelihood of injury
to others, the seriousness of the injury, and the burden of avoiding the
risk,” with foreseeability constituting the measure of liability (Basso
v Miller, 40 NY2d 233, 241 , quoting Smith v Arbaugh’s Rest.,
469 F2d 97, 100 [DC Cir 1972], cert denied 412 US 939 ; see
Miller v State of New York, 62 NY2d 506, 513 ; Preston v State of
New York, 59 NY2d 997, 998 ). That duty extends to “its
highways and their adjacent areas” (Spink v State of New
York, 6 Misc 3d 1025[A] [Ct Cl 2005]; see Friedman v State of New
York, 67 NY2d 271, 283 ).
The State is not an insurer of public safety, however, and negligence cannot be
inferred solely from the occurrence of an accident (see Tripoli v State of
New York, 72 AD2d 823 [3d Dept 1979]; Ebuzoeme v City Univ. of N.Y.,
10 Misc 3d 1079[A] [Ct Cl 2005]. Moreover, a claimant has the duty to use
reasonable care to observe his or her surroundings, to see what is there to be
seen and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42
; Guller v Consolidated Rail Corp., 242 AD2d 283, 284 [2d Dept
1997]; Bouloukos v Blank, 202 AD2d 539, 541 [2d Dept 1994]; Levitt v
County of Suffolk, 166 AD2d 421, 423 [2d Dept 1990], lv dismissed 77
NY2d 834 ).
In order to establish a breach of that duty in a slip and fall case, it is
incumbent upon Claimant to establish that: (1) a dangerous condition existed;
(2) Defendant either created the dangerous condition or had actual or
constructive notice thereof and failed to alleviate the condition within a
reasonable time; and (3) such condition was a substantial factor in the events
that caused the injury suffered by Claimant (see Gordon v American Museum of
Natural History, 67 NY2d 836, 837 ; Medina v Sears, Roebuck &
Co., 41 AD3d 798, 799 [2d Dept 2007]).
With respect to dangerous or defective conditions, “there is no
‘minimal dimension test’ or per se 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 . Rather, it is generally a
question for the trier of fact to determine whether such conditions exist based
upon “facts presented, including the width, depth, elevation, irregularity
and appearance of the defect along with the ‘time, place and
circumstance’ of the injury” (id. at 978, quoting Caldwell
v Village of Is. Park, 304 NY 268, 274 ). Some physical defects,
however, may be too trivial and slight in nature to be actionable (Lamarre v
Rensselaer County Plaza Assoc., 303 AD2d 914 [3d Dept 2003]; Guerrieri v
Summa, 193 AD2d 647 [2d Dept 1993]).
Moreover, landowners are not obligated to warn against conditions on the land
that could be readily observed by the use of one’s senses. Where the
condition is open and obvious, “the condition is a warning in
itself” (Tarricone v State of New York, 175 AD2d 308, 309 [3d Dept
1991], lv denied 78 NY2d 862 ; see also Ruiz v Hart Elm
Corp., 44 AD3d 842, 843 [2d Dept 2007]; Cupo v Karfunkel, 1 AD3d 48,
51 [2d Dept 2003]; Herman v State of New York, 94 AD2d 161 [2d Dept
1983], affd 63 NY2d 822 ).
Upon consideration of all the evidence, including a review of the exhibits and
listening to the witnesses testify and observing their demeanor as they did so,
the Court finds that Claimant failed to meet his burden and did not establish by
a preponderance of the credible evidence that Defendant was negligent in
connection with his fall.
As a preliminary matter, while each of the witnesses testified sincerely, the
Court was not persuaded by the opinions offered by Claimant’s expert and
is unable to credit them (Felt v Olson, 51 NY2d 977, 979 ). Much
of his lengthy experience as a safety consultant concerns workplace safety
issues in industrial, commercial and construction contexts (see Ex.
7). With respect to paving defects, however, the Court determines that
the chief credentials Dr. Marletta cited were less authoritative and were
acquired thirty years ago. During college summers, he worked on a pothole
repair crew for the Town of Babylon, New York. Then, he had an early job as a
field inspector for an engineering firm. Dr. Marletta said that the latter
position included duties as a paving inspector, although that responsibility is
not enumerated in his curriculum vitae (Tr., v. II, pp. 236-237, 325-327; Ex.
Moreover, Dr. Marletta conceded that neither the State nor DOT is bound to
comply directly with the AASHTO recommendations/guidelines, ASTM recommended
practices, and ANSI standards that helped inform his opinions and which feature
prominently in his affidavit (Tr., v. II, pp. 339-343; see Ex. 8B).
By contrast, the Court found the testimony of the DOT employees more credible
and persuasive. Each has worked for DOT for decades and has substantial
pertinent experience with pavement maintenance issues (Tr., v. I, p. 86
[Zillmann]; Tr., v. II, p. 405 [McNeil]; Tr., v. III, pp. 480-486; Ex. E
[Reissig]). For example, Mr. Reissig
responsible for DOT’s Long Island region pavement program for over 20
Ramp Was Reasonably Safe for Its Intended Purpose
Turning to the merits of the Claim, the Court concludes that the State’s
“duty to provide pedestrians with a reasonably safe place to travel”
does not extend to protecting Claimant against the injury he sustained while
walking on this cloverleaf ramp. The duty of a landowner “is not
limitless” (Di Ponzio v Riordan, 89 NY2d 578, 583 ). It
depends upon the extant circumstances and the State is “under no
obligation to provide for everything that may happen upon its highways”
(Lyons v State of New York, 192 Misc 983, 988 [Ct Cl 1948], affd
274 App Div 1086 [4th Dept 1949]; see Ring v City of Cohoes, 77 NY 83, 86
). Rather, its duty “extends only to foreseeable uses of the
highways by vehicular traffic and pedestrians alike,” but “not every
use of a highway by a pedestrian comes within the scope of the State’s
duty” (Kelley v State of New York, Ct Cl, Claim No.101747, July 10,
2002, Lebous, J. [UID No. 2002-019-015]; see Hamilton v State of New
York, 277 AD2d 982, 984 [4th Dept 2000], lv denied 96 NY2d 704
The Court further concludes that the ramp was reasonably safe for vehicular
traffic which, even Dr. Marletta agreed, is the “primary use” of
this ramp (Tr., v. II, p. 293). P.O. Alvarado testified that he actually had
observed cars going over the condition, that they even had enough room to go
around it if they needed to, and that vehicles that did go over the condition
did not seem to have any difficulty doing so (Tr., v. I, p. 39). Dr. Marletta
also acknowledged that vehicles would have no problem traversing the condition
and, in fact, said that it was “not such a deep hole” that they
would sustain damage (Tr., v. II, p. 376). Mr. Reissig testified that the
condition depicted would not be considered a hazardous or dangerous condition on
the travel lane of a highway or ramp (Tr., v. III, p. 489).
The Court rejects Dr. Marletta’s contention that it is “reasonable
to assume” that pedestrians, bicyclists, workers, and others also would be
using the ramp (Tr., v. II, pp. 293-294). To the contrary, the Court determines
that this ramp was not intended for such traffic, nor was it reasonably
foreseeable that it would be so utilized, except under remote and extraordinary
circumstances. Dr. Marletta described it as a “heavily traveled,”
“fairly busy and well used exit ramp” (Tr., v. II, pp. 252, 367).
As noted above, the ramp serves as a conduit for traffic between busy, multilane
thoroughfares, devoid of sidewalks or road shoulders that might invite or
accommodate foot or bike traffic. Residential areas are separated from the area
by another ramp and guide rails, next to which a sidewalk has been provided.
There is nothing in the center of the cloverleaf to draw visitors, and the
curious are discouraged by trees, a fence and barbed wire.
P.O. Alvarado testified that he had never seen pedestrians or bicyclists on or
crossing this ramp. In fact, other than repair crews, as noted below, he never
saw “anyone just walking to get from one point to another” on any
ramp on Sunrise Highway (Tr., v. I, pp. 30-31). He stated that “there was
no pedestrian traffic supposed to be in the location and also no bicycle
traffic. I didn’t see it as a safety hazard for vehicles or
pedestrians” (Tr., v. I, pp. 39-40).
The DOT employees agreed that they would not consider the ramp to be a
pedestrian area and/or expect to see foot traffic there (Tr., v. I, p. 134)
[Zillmann]; Tr., v. II, p. 417 [McNeil]; Tr., v. III, p. 507 [Reissig]). Mr.
Zillmann said that employees under his supervision only “rarely”
have occasion to walk on the road surface of the ramp (Tr., v. I, p. 95). Mr.
McNeil said that DOT personnel would not be on roadways without safety
protections, such as trucks, cones, or barrels in place (Tr., v. II, pp.
The Court is unable to credit Claimant’s statement that he had seen bike
riders and pedestrians on the grass median of this ramp before his accident
because he was confused about his past familiarity with the ramp (Tr., v. I, pp.
147-148). Even if Claimant’s recollection is accepted, he never saw
people on the concrete pavement itself (Tr., v. I, p. 148).
There was some testimony that pedestrians might be on highway ramps on
infrequent occasions, and under unusual circumstances. For example, DOT workers
might perform maintenance chores, police officers and motorists could be on the
ramp during law enforcement vehicle stops, or as a result of an accident, or
breakdown (Tr., v. I, p. 32 [Alvarado]; Tr., v. I, p. 134 [Zillmann]; Tr., v. I,
p. 186 [Claimant]; Tr., v. II, pp. 430-431 [McNeil]; Tr., v. III, pp. 529, 552
Given the configuration of this ramp and its location, the Court determines
that the ramp was suitable and safe for its intended purpose of conveying
vehicles from Sunrise Highway to Brentwood Road. The Court further concludes
that the possibility was sufficiently remote that a pedestrian or bicyclist
might elect to go onto the ramp that Defendant did not have a duty to maintain
the ramp surface “in such a state of repair and unmarred smoothness”
that pedestrians and bicyclists could travel on it with “assured
safety” (Cotter v State of New York, Ct Cl, Claim No. 99844, April
12, 2001, Read, J. [UID No. 2001-001-511], Slip Op at 4 [bicyclist injured when
front wheel was caught in a drainage grate on roadway]; see also Yocum v
State of New York, Ct Cl, Claim No. 110797, filed February 11, 2009, Hudson,
J. [State not required to keep park roadway in reasonably safe condition for
in-line skaters]; Schroeder v State of New York, Ct Cl, Claim No. 108278,
February 20, 2007, Schweitzer, J. [UID No. 2007-036-101] [movement of drain
grate sufficient to “cause a serious cycling mishap” not deemed
dangerous condition on “road designed primarily for automobiles to drive
at a speed of 55 miles per hour”]; Grover v State of New York,
Ct Cl, Claim No. 97757, December 19, 2000, Midey, J. [UID No. 2000-009-014],
affd 294 AD2d 690 [3d Dept 2002] [two- inch “hump” in street
pavement did not affect vehicular traffic and “not in portion of the
roadway designated as or intended for a pedestrian crossing”]).
The Pothole/Spall Was Not A Dangerous Condition
Assuming, arguendo, that it was the State’s duty to maintain the
ramp for pedestrian traffic, Claimant failed to show that a dangerous condition
existed for such users.
The testimony and exhibits establish that the depth of the pothole/spall varied
considerably from place to place. Dr. Marletta opined that the condition
depicted “is clearly a hazard,” noting “significant”
depths of between 1½ inches to 2 ½ inches, that “some
of the sides are steeply sloped” and “abrupt vertical
transitions” that pose a hazard “to anybody stepping on it”
(Tr., v. II, pp. 259-260 [emphasis supplied]). Implicit in Dr. Marletta’s
statement is what is explicit in the testimony of others, namely that, in other
places, sides sloped more gently and the condition was more level. In fact, Dr.
Marletta, like Claimant himself, said that some of the asphalt material
actually was above the level of the surrounding concrete roadway (Tr., v. II, p.
274). That being the case, it is important to know where Claimant stepped onto
the pothole/spalled condition.
Unfortunately for Claimant, on this point the record is murky. It is not clear
that the officers even agree about the direction from which Claimant approached
the condition. While explained away by Claimant, the statement contained in the
Injured Employee Report (Ex. 18) only compounds the confusion.
Moreover, Claimant testified that he took only a few steps off the curb, but
does not know where he fell. P.O. Alvarado reported that Claimant
“crumbled straight down” and did not appear to have caught his foot,
nor was he thrown forward. Thus, the Court cannot determine that Claimant
encountered one of the steep or jagged areas that, Dr. Marletta contends, were
hazardous. It appears equally possible to the Court that Claimant fell,
instead, on a more benign portion of the condition. For example, Dr. Marletta
reviewed the video recording of the condition that is Exhibit 1, stopping in
several places to discuss specific areas that he deemed to be significant to his
analysis and opinion (see Tr., v. II, pp. 271-277; Ex. 1, at 19 and 23
seconds; cf. Exs. 5 and 6). As might be expected, the vertical
conditions that Dr. Marletta deemed to be hazards are located along the edges of
the condition, some appearing to be located towards the Brentwood Road side of
the ramp, while others are closer to the longitudinal seam in the center of the
roadway. Thus, the direction from which Claimant approached the condition, as
well as the route he took, both of which are unclear, would affect the
likelihood that he encountered those defects.
Moreover, the Court determines, after its review of the testimony and
exhibits, that the depth of the condition does not exceed two inches at any
point. Claimant’s estimate that the condition was three inches deep in
places (Tr., v. I, p. 177) is overstated. In any event, Claimant said that he
came to sit in an area that was only an inch or two deep.
While no per se rule establishes minimum dimensions that must pertain in
order for there to be a dangerous condition, often no liability is found with
respect to irregularities, gaps, holes, depressions, drop-offs, or
non-alignments of an inch or two, even when they are found on a sidewalk or
parking lot, places where, unlike this ramp, heavy pedestrian traffic may be
expected (Allen v Carr, 28 AD2d 155 [4th Dept 1967]; Mitchell v State
of New York, Ct Cl, Claim No. 109289, December 23, 2008, Midey, J. [UID No.
2008-009-195]; Rice v State of New York, Ct Cl, Claim No. 107632, June
19, 2006, Hard, J. [UID No. 2006-032-505]; Barone v State of New York,
Claim No. 92646, filed March 23, 1998, Bell, J.; Dwyer v State of New
York, 5 Misc 2d 787 [Ct Cl 1957]). The Court finds that the depth of this
pothole/spall does not constitute a dangerous condition in the context of this
Claimant also failed to establish that Defendant was on notice with respect to
the condition. There was no evidence that the State created the original
pothole/spall. Likewise, there is no evidence that the prior repair, however
artfully or inartfully made, in any way contributed to making the original
condition worse (see Kushner v City of Albany, 27 AD3d 851 [3d
Dept 2006], affd 7 NY3d 726 ). In that regard, the Court credits
the testimony of Messrs. McNeil and Reissig that the condition could be
the result of further spalling of the concrete surrounding the prior asphalt
repair, rather than evidence that an earlier repair had deteriorated so that
portions of the original defect once again were exposed (Tr., v. II, p. 429
[McNeil]; Tr., v. III, pp. 537-538 [Reissig]).
Claimant, likewise, failed to establish constructive notice. The Court is
unpersuaded that several factors cited by Claimant, in fact, evidence a
long-standing condition of which the State should have had notice.
The Court finds, to the contrary, that inclement weather in that vicinity
during the days preceding Claimant’s fall could have had a quick and
adverse effect on the condition (Tr., v. II, pp. 368-369, 399 [Marletta]; Tr.,
v. I, pp. 125-126 [Zillmann]; Tr., v. II, pp. 445-447 [McNeil]; Tr., v. III, p.
493 [Reissig]; Exs. A, F). Mr. McNeil said that, after salting and/snow removal
operations, crews routinely go out to fill potholes because the plows
“tend to pull out the material of the potholes” (Tr., v. II, pp.
The Court credits the testimony of the State witnesses that rebar or mesh can
be brownish in color when it is originally installed in the roadbed, having
acquired a patina of rust while in the storage yard (Tr., v. I, p. 104
[Zillmann]; Tr., v. III, pp. 520-521 [Reissig]). Dr. Marletta was forced to
recant his earlier testimony to the contrary and conceded as much (Tr., v. II,
pp. 278-279, 385). Thus, the Court concludes that the reddish, brownish marks
are not a reliable “indication of long-term exposure to water,” as
Dr. Marletta contended (Tr., v. II, p. 274).
The Court, likewise, determines that the loose stone or gravel seen in the
photographic exhibits could be of recent vintage. Dr. Marletta asserted that
the condition had existed for some time because there weren’t enough small
loose stones evident, either in the pothole/spall itself, or elsewhere on the
roadway toward the curb line, to account for the amount of deterioration evident
in the condition (Tr., v. II, pp. 285-286, 288-289).
P.O. Alvarado’s eyewitness observations, however, contradicted Dr.
Marletta’s assertion. The officer circled, in blue ink on Exhibit 6,
loose gravel that he saw within the deteriorated condition (Tr., v. I, pp.
62-63; see Ex. 6). He also saw gravel along the roadway outside of the
deteriorated area, which he testified “comes from vehicles as vehicles
drive over the hole. The, the gravel material would somewhat eject to the sides
as the tires go over the pothole” (Tr., v. I, p. 81; see Ex. 2).
The testimony of Mr. McNeil and Mr. Reissig corroborated P.O. Alvarado’s
observations (Tr., v. II, pp. 422, 435 [McNeil]; Tr., v. III, pp. 500, 502-503
[Reissig]; see Exs. 2-4, 6). Mr. McNeil further thought that the
particles circled by the officer and visible in other photographs, as well, were
dispersed along the roadway in a manner consistent with snow plowing (Tr., v.
II, pp. 419-421, 423-424; Exs. 2-4, 6).
The DOT employees agreed that none of them had received any complaints about
the condition, nor were they aware of any accidents having occurred prior to
November 26, 2005 (Tr., v. I, p. 123 [Zillmann]; Tr., v. II, pp. 406-407
[McNeil]; Tr., v. III, pp. 487, 515 [Reissig]). P.O. Alvarado stated that he
had seen the same or a similar condition on the ramp on a “handful”
of other occasions, though he never lodged a complaint about it because he
“didn’t see it as a safety hazard for vehicles or pedestrians”
(Tr., v. I, pp. 39-40).
As a result, the Court concludes that Claimant failed to establish that the
condition had existed for a sufficient period prior to his fall that Defendant
could be said to have failed to alleviate the condition within a reasonable
Condition Was Open and Obvious
Claimant testified that he could not see the pothole/spall in the moments
before he fell because vehicle number 2 was parked over it. Yet, it also was
his testimony that, as he walked the few steps in the split second before he
fell, “to be honest with you, no [nothing was covering the pothole]. I
was looking at the car pulling away and I’m looking at the traffic”
(Tr., v. I, pp. 179-180). Finally, the officers did not inspect the ramp when
they set up the checkpoint. The Court concludes that Claimant was distracted by
the other vehicle and his lookout for other traffic, and it was this inattention
to where he was walking that accounts for his failure to see what was there to
be seen, and thereby avoid an accident, that accounts for his fall (see Lolik
v Big V Supermarkets, 210 AD2d 703, 704 [3d Dept 1994], revd on other
grounds, 86 NY2d 744 ).
In this regard, the Court rejects Dr. Marletta’s theory that the
condition constituted a trap because aspects of the human gait and a
person’s top view perspective make it difficult to distinguish even minor
differences in the levels of surfaces when the person is standing directly over
them (Tr., v. II, pp. 307-309; see Ex. 8B, ¶ 6, pp. 8-9). Dr.
Marletta conceded that the top view perspective theory assumes that the
individual actually saw the condition (Tr., v. II, p. 348). Claimant clearly
stated, however, that his attention was directed elsewhere. It was this failure
to see what was there to be seen and not an inability to judge the depth of the
condition that accounts for his fall.
Further, the condition covered several square feet and its color contrasted
with that of the surrounding pavement. In fact, the contrast is so marked that
the officers were able to identify the portion of discolored pavement in aerial
photographs that depict the condition from a bird’s eye perspective.
Exhibit 19 indicates that the photograph depicts a view from an “eye
alt[itude]” of 204 meters (nearly 670 feet), and Exhibit B also appears to
be from a perspective that is hundreds of feet above the roadway.
Finally, P.O. Alvarado said that he did not bring the condition to the
attention of the other officers “[b]ecause we were all there. I figured
we all, we all seen it. We were all able to see it” (Tr., v. I, p. 45).
Thus, the Court concludes that the pothole/spall should have been readily
visible to Claimant.
The Court determines that the State was under no duty to warn Claimant because
the condition was open, obvious and readily apparent. Dr. Marletta testified
that orange spray paint around the defective area, barricades, and posted signs,
all would have safeguarded the general public from the condition (Tr., v. II,
pp. 305-306, 350, 388-389). The Court is unpersuaded that orange spray paint
would have alerted Claimant to the condition since Claimant was not looking at
the pavement, but rather, was watching the car pull away and looking out for
The Court gives even less credit to Dr. Marletta’s contention that
barricades should have been placed. The DOT employees agreed that, in general,
they would not recommend placing barriers upon roadways (Tr., v. II, p. 439
[McNeil]; Tr., v. III, p. 507 [Reissig]). The Court concludes that such
barriers could well have posed hazards in their own right and were not necessary
because vehicles could pass over the condition easily and even go around it if
they wished to do so.
Accordingly, the Court determines that Claimant failed to establish by a
preponderance of the credible evidence that Defendant was negligent in
connection with his Claim. All motions and cross-motions are denied as moot.
All objections upon which the Court reserved determination during trial are now
The Chief Clerk is directed to enter judgment accordingly.
Albany, New York
HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims
.The Claim of Carmen Perez is derivitive in
nature. Therefore, all references to Claimant herein shall be to Hector Perez.
.Dr. Marletta inspected the ramp on May 8,
2008 and his measurements indicated that the width of the ramp varied from 12 to
24 feet (Tr., v. II, pp. 244, 251).
.Claimant also testified that the photographs
(as well as the video recording that is Exhibit 1, which he also said was a fair
and accurate depiction of the area on the date of his accident) were taken by
his wife about three weeks after the accident (Tr., v. I, pp. 151-152).
. Claimant’s Exhibit 8-B was admitted
into evidence, not for the truth of the matters asserted therein, but, rather,
to memorialize Dr. Marletta’s credentials and materials he reviewed and
relied upon in forming his opinions (Tr., v. II, p. 264).
.Claimant’s application to preclude Mr.
Reissig as a witness was denied (Tr., v. III, pp. 458-474). The Court
determined that the objections of Claimant’s counsel were untimely and
that he failed to establish that Claimant would be prejudiced by allowing the
witness to testify. He maintained that Claimant was prejudiced because expert
disclosure by Defendant was not made at least 60 days prior to trial, the date
provided by the parties for the Court’s Preliminary Conference Order,
dated March 12, 2007. Defendant provided Claimant and the Court comprehensive
disclosure information with respect to this witness in early April 2009, nearly
40 days in advance of the trial date. Claimant apparently rejected that
disclosure as untimely, but did not assert any prejudice at that time. His
counsel neither copied the Court on the correspondence, nor otherwise apprised
the Court that a dispute existed. Claimant’s counsel maintained that, had
disclosure been made 60 days before trial, he would have hired an investigator
to research Mr. Reissig’s credentials. Claimant’s counsel conceded,
however, that he did not attempt to investigate Mr. Reissig after the notice he
did receive. He said that he did not seek an adjournment because he considered
the trial date final.
First, the Court notes that the witness is a State employee. Thus, it is not
clear that CPLR 3101 (d) applies at all since “the scope of disclosure for
employees of a party, whether noticed as experts or not, is defined by CPLR 3101
(a), rather than CPLR 3101 (d), which governs the extent of disclosure in
instances where non-employee expert witnesses are involved”(Lippel v
City of New York, 281 AD2d 327, 328 [1st Dept 2001]). Second, to the extent
3101 (d) does apply, the Court further notes that Defendant did provide
disclosure with respect to this witness and the scope of his likely testimony,
as a prophylactic measure, both to Claimant and the Court nearly 40 days in
advance of the trial date. Third, the Court conducted a trial preparation
conference with the parties on April 21, 2009. Pursuant to the Court’s
instructions, the parties provided their proposed witness lists and exhibits to
each other and to the Court in advance of the telephone conference. Defendant
again provided disclosure of Mr. Reissig’s credentials (see Ex. E),
thus, alerting Claimant that Defendant sought to preserve its right to call the
witness. One expressly stated purpose of the trial preparation conference was
to address any outstanding issues before trial. Claimant’s counsel was
silent, failing to alert the Court as to any concerns about, or assert any
prejudice that might result from, Mr. Reissig giving testimony. Fourth, on the
second day of trial, and over Defendant’s objection, the Court granted
Claimant’s application to have potential witnesses excluded from the
courtroom while his expert, Dr. Marletta, testified (Tr., v. II, pp. 220-224).
At that time, Defendant indicated that he was removing Mr. Reissig from the
courtroom in order to preserve the opportunity to call him as a witness.
Another potential witness for Defendant stayed in the courtroom with the
understanding that he would be precluded from testifying. Claimant’s
counsel again made no comment or objection about Mr. Reissig. Finally, after
all of the foregoing, at the beginning of the third day of this trial,
Claimant’s counsel moved to preclude the witness.
It is the Court’s determination that counsel failed to show that Claimant
was prejudiced by either the disclosure provided, or the time when it was
tendered, that the application was untimely, and that the contentions of
Claimant’s counsel were without merit. In the absence of such showing,
the Court further concludes that Claimant’s counsel had sufficient time to
conduct an investigation of Mr. Reissig. The scope of Mr. Reissig’s
testimony was not a surprise to Claimant. Moreover, his counsel failed to avail
himself of several opportunities to raise the issue with the Court in a timely
manner prior to trial so that his concerns, as well as possible remedies, could
have been explored (see Hernandez-Vega v Zwanger-Pesiri Radiology Group,
39 AD3d 710 [2d Dept 2007]; Shopsin v Siben & Siben, 289 AD2d 220 [2d