|Claimant(s):||EDIA MICHEL and CHENET DELVA|
|Claimant short name:||MICHEL|
|Footnote (claimant name) :||The claim as filed spelled claimant's last name as "Michael." At trial, she testified that the correct spelling is "Michel."|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Harry Organek, Esq.|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Joseph L. Paterno, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||March 15, 2010|
|See also (multicaptioned case)|
This decision follows the liability trial of the claim of Edia Michel and Chenet Delva.(2) In the claim, it is alleged that on April 13, 2001, Ms. Michel was injured when she fell on a torn mat in the entrance of the Coney Island location of the Department of Motor Vehicles ("DMV"), at 2875 West 8th Street in Brooklyn.
Claimant testified that she went to the DMV in order to renew her driver's license. She was working that day, and went during her lunch break, having asked her supervisor for extra time. She drove there, parked and entered the building without incident. She took a ticket, sat down and waited to be called. At some point before being called -- less than 15 minutes after she had arrived -- she left the building to put money in the parking meter and then returned to the building, where the door was open; it was a sunny day. Just inside the door was a mat. Michel described what happened next as follows:
[W]hile I'm going see, to the direction, my left side and then I walked to go in my left side and I felt something under, I felt something on my left side and then my foot get inside of the, of the mat. The hole is too big . . . it pull me more, it pull me more. And then I fell.
Michel further explained that her left foot had gotten caught in a hole in the mat, while her right foot was on the mat. When her foot got caught, she tried to pull it out, which caused the mat to tear more, "[a]bout two times the way it was." Thereafter, she fell, landing on both knees and her left side. She said that after she fell, her left foot was still stuck in the mat, "[u]p to my ankle." At the time of her fall, she was carrying only a shoulder bag and was wearing a light coat and nursing shoes with flat soles.
Claimant described the size of the mat as three to four feet wide and five to six feet long, and she described the size of the hole, which she also referred to as an opening, as "like a handful, five fingers." On claimant's exhibit 1, which is her hand-drawn diagram of the mat, claimant represented the hole by marking off a squarish shape in the bottom left corner. She described the mat as "dirty . . . and it looked old to me . . ." She had not seen the hole before her accident.
Michel recalled that after she fell, a security guard came and got the mat off her foot, and he brought her to see an employee that she described as the manager. Michel said that she explained to the manager what had happened, after which she processed her license renewal right away and asked claimant if she wanted to go to the emergency room, which she declined to do.
On cross-examination, claimant conceded that she had walked across the mat twice before her accident - when first entering the DMV, and then when leaving to put money in the parking meter - and that there was nothing obstructing her view of the mat. However, she said that she hadn't seen the hole before she fell, explaining that, "[w]hen you walk, you don't walk head bent . . . "* * *
On her case, claimant also read portions of the deposition of Sandra Mercedes-Little. Ms. Mercedes-Little is currently the office manager at the Massapequa office of the DMV (Nassau County) and was previously the office manager at the Coney Island location.(3) She was working there on April 13, 2001, and at some point that day was made aware that an accident had occurred in the building. She prepared an accident report (claimant's exhibit 2) based on "secondhand" information, which she believed came from a security officer. She was told that a customer "got caught in a tear or she made a tear. As she fell, the tear increased. And she tried to prevent her fall but she indicated that the carpet continued to rip and she fell forward."
The accident report contains the typewritten question, "What corrective action might prevent a repetition of this type of accident?," after which follows Mercedes-Little's handwritten entry, "remove edge or order new mat." The witness confirmed that after the incident, the edge was removed and a new mat was ordered.
Asked what she recalled about the edge that was removed, Mercedes-Little stated that, "[t]he edge was intact and there was a tear that would resemble, I guess, a seam. A seam tear on a garment. And so, if I removed it or if someone else removed it for me, we just took that edge off." She recalled that the entire edge of the three-foot length of the mat was removed; Mercedes-Little estimated the size of the mat at three feet by five feet.
She said that the mat's purpose was to "absorb moisture, rocks from people's shoes . . ." She testified that the mat was made of "carpeting, similar to like a Berber, a very heavy gauge carpet. Horizontal ridges and a rubber border. . . It was sort of like [a] traction-type of mat and that was carpeted." As to the volume of customers at the Coney Island DMV, Mercedes-Little said that the office saw on average one thousand to thirteen hundred people a day.
With regard to inspection and maintenance of the mat, the witness testified that the office had its own maintenance crew employed by the building's landlord. Asked if there was a protocol for the replacement of the mat, she answered, "No . . . the maintenance crew, if he were to bring something to my attention, then I would order one. But during that time when there was no fiscal crisis if I just didn't like the way the mat looked, if it looked unsightly, I could order another one." Mercedes-Little did not know how long the mat had been in place prior to claimant's accident, nor did she know on average how long a mat in that location was in place before it was reordered.* * *
Sandra Mercedes-Little was also called to testify at trial by defendant. Her trial testimony was consistent with her foregoing deposition testimony. In addition, she testified as follows. Aside from the cleaning crew provided by the landlord, Mercedes-Little stated that she personally took a daily walk around the premises, including the lobby where the mat was located. Asked when her most recent walk would have been prior to claimant's accident, she said, "either that morning or sometime later in the day."
Mercedes-Little testified that prior to the incident, she did not observe any defects in the mat. Nor was she notified by the maintenance staff, landlord or anyone else as to a tear in the mat. She added that there had not been any similar incidents involving the mat before claimant's accident.
The witness explained that her purpose in walking around was to oversee the facility, not only for safety reasons, but to "make sure there was no offending graffiti or anything of that nature, that . . . nothing was out of place, that the cleaning people had restored . . . things to their proper place . . that no one had posted any bills."
She added that, "[e]veryday I had the area that I looked in, which was the lobby and outside and inside and yes, I would look at the mat . . . making sure it was lined up. So, I would say I would, can I definitively say every single day I looked . . . at the mat? There may have been a time or two that not, but no, mostly I did . . . the cleaning people will clean underneath the mat, and . . . esthetics, that's a personal thing with me. I wanted to see that it was lined up, that it looked nice." She also stated that the maintenance staff cleaned daily, including vacuuming the mat on a daily basis.
As to replacing mats at the facility, she had to "make a justification to Albany," such as that the mat was "esthetically unpleasing or . . . had gotten too dirty." She did not recall ever replacing a mat because of a tear.
Asked, essentially, whether all mats in the office took approximately the same amount of time to wear out after having been put down, Mercedes-Little answered that, "I couldn't say . . . Our office visits and volumes vary . . . from year to year . . . from process to process . . . Case in point being, with . . .eight year renewals now in effect and around that time . . . prior to that it was four year renewals."
As to the normal traffic of one thousand to thirteen hundred people a day, she explained that not all of them would traverse the mat in question, because the parking lot is at the rear of the building, and the majority of the people that enter use the rear entry, not the front entry used by claimant.
With regard to the defect in question, Mercedes-Little said that it "appeared to be a . . . tear along . . . a seam. Like . . . something that could be made with a pointed object, dragged, like a tear of a seam," and she did not recall there being a flap.* * *
The State has a duty to maintain reasonably safe premises. Basso v Miller, 40 NY2d 233 (1976). But the State is not an insurer and negligence may not be inferred solely from the occurrence of an accident. See Mochen v State of New York, 57 AD2d 719 (4th Dept 1977). In order to establish liability, claimant must show either that defendant created, or had actual or constructive notice of a dangerous condition which caused his accident. See, for example, Bernard v Waldbaum, Inc., 232 AD2d 596, 597 (2d Dept 1996).
Claimant did not argue that defendant created the condition or had actual notice, nor was any evidence presented to that effect. Rather, claimant alleges constructive notice, arguing that since the defect was large enough to encompass her entire foot, that could not have occurred except through a progression of time, i.e., a period of days or weeks or months.
As for whether there was constructive notice, the condition at issue must be visible and apparent and have existed for a sufficient period of time to have been discovered and remedied. Gordon v American Museum of Natural History, 67 NY2d 836 (1986); Giuffrida v Metro North Commuter R.R. Co., 279 AD2d 403 (1st Dept 2001). With regard to whether the defect was visible and apparent, it must be noted that neither the mat itself nor photographs thereof were introduced at trial. Claimant simply described the defect as a hole or opening. Mercedes-Little's testimony as to the appearance of the defect was much more specific than that of claimant; she credibly described the tear as a straight line, like a tear in the seam of a piece of clothing. This is further supported by the accident report which indicates that removing the edge would be an appropriate corrective action. I find that claimant has failed to demonstrate that such a straight line tear, along the edge of the mat, would have been visible and apparent prior to her accident.
Moreover, as to whether the defect existed for a sufficient period of time to have been discovered and remedied, there was no concrete evidence as to how long the tear had been there. Claimant testified only that the mat appeared old and dirty, and Mercedes-Little had no knowledge. That claimant testified that her entire foot went in the hole is not sufficient to demonstrate that the tear had existed for any particular period of time.
In sum, claimants have not met their burden of proving constructive notice, and therefore, claim no. 111031 is dismissed. LET JUDGMENT BE ENTERED ACCORDINGLY.
March 15, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. Inasmuch as the claim of Chenet Delva is derivative in nature, references to claimant in this decision are to Edia Michel.
3. It is unclear whether claimant's testimony as to having seen "the manager" after her fall referred to Mercedes-Little or another person.