New York State Court of Claims

New York State Court of Claims

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.

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:
DAVIS & HERSH, LLPBy: Ian M. Sack, Esq.
Defendant’s attorney:
Attorney General of the State of New YorkBy: John M. Shields, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 28, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, Hector Perez[1], 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 post-trial memoranda.

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 day.

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.[2] 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, 203).

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, 206-207).

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 himself related.

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. 34-35, 151).[3] 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 Ex. B). 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 Ex. 19).

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, ¶ 2).[4]

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 [1980]; Donohue v Copiague Union Free School Dist., 64 AD2d 29, 32-33 [2d Dept 1978], affd 47 NY2d 440 [1979]; 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 [1976], quoting Smith v Arbaugh’s Rest., 469 F2d 97, 100 [DC Cir 1972], cert denied 412 US 939 [1973]; see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]). 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 [1986]).

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 [1917]; 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 [1991]).

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 [1986]; 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 [1997]. 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 [1952]). 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 [1991]; 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 [1984]).
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 [1980]). 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. 7).

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[5] has been responsible for DOT’s Long Island region pavement program for over 20 years.
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 [1997]). 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 [1879]). 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 [2001]).

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. 426-427, 431).

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 [Reissig]).

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 Claim.
Notice Not Established
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 [2006]). 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. 419-420).
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 time.
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 [1995]).
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 other traffic.
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 overruled.
The Chief Clerk is directed to enter judgment accordingly.
October 28, 2009
Albany, New York
Judge of the Court of Claims

[1].The Claim of Carmen Perez is derivitive in nature. Therefore, all references to Claimant herein shall be to Hector Perez.

[2].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).
[3].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).
[4]. 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).

[5].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 Dept 2001]).