The Court found that the State was fully liable for damage to claimant's telephone equipment which was stored on State property, occurring during routine mowing operations.
|Claimant(s):||VERIZON NEW YORK, INC.|
|Claimant short name:||VERIZON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||SOLOMON & SOLOMON, P.C.
BY: Todd M. Sardella, Esq.,
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: Michael R. O'Neill, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 4, 2010|
|See also (multicaptioned case)|
In this claim, claimant alleges that a State employee negligently damaged its telephone equipment and facilities while mowing State lands adjacent to New York State Route 414 in Seneca County on or about August 2, 2004. The trial of this claim was bifurcated, and this decision therefore addresses solely the issue of liability.
At the trial, Paul J. Estro, a local maintenance manager with the claimant, was the sole witness to testify on claimant's behalf. He testified that on August 2, 2004, he responded to an alarm indicating that telephone service had been interrupted, and that upon arriving at the scene along Route 414, he discovered that a telephone cabinet had been damaged and that a fiber cable inside the cabinet had been cut. It was necessary to splice that cable in order to restore telephone service. Mr. Estro prepared a Property Damage Report (Exhibit 1) in which he indicated that the "[d]amager was mowing ditch and cut cable".
Edward L. Granger, a highway maintenance worker with the State Department of Transportation, testified on behalf of the defendant. Mr. Granger acknowledged that he was engaged in mowing operations alongside Route 414 in the vicinity of this telephone cabinet on August 2, 2004. He testified that during his mowing operations, the grass was higher than or at least equal in height to this cabinet, although he admitted that despite the height of the grass, the cabinet was in plain view. Mr. Granger testified, however, that although he was mowing in the immediate area, he did not recall or believe that he struck this cabinet with his mower blade.
In order to establish a prima facie case of negligence, a claimant must establish: (1) that the defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of claimant's injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence. In this particular matter, defendant's employee had a duty to both observe and avoid claimant's cabinet, which housed the particular cable that was cut. Based on the evidence at trial, it is patently obvious that the damage to the cabinet (and cable), which was admittedly in plain view, was caused by the State's employee who was mowing in the immediate vicinity at the time. It is therefore clear that the defendant breached its duty to exercise proper care, and that such breach was the proximate cause of claimant's damages.
Accordingly, based upon the foregoing, the Court finds that the State is fully liable to claimant for the damages caused by the cutting of this telephone cable. There was no testimony to even remotely suggest that there was any comparative negligence on the part of the claimant.
Any motions not heretofore ruled upon are hereby denied.
The Clerk of the Court is hereby directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY
November 4, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims