|Claimant short name:||MANDELL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Scott Baron & Associates, P.C.
By: W. Bradford Bernadt, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: John M. Shields, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 20, 2010|
|See also (multicaptioned case)|
This is a timely filed claim for damages by Henry Mandell (hereinafter "claimant") based upon the alleged negligence of the defendant. The bifurcated trial of this claim was held on October 27, 2009 and this Decision pertains solely to the issue of liability.
On May 28, 2007, at approximately 7:00 p.m., claimant was riding a bicycle on State Route 27 in the Village of Wainscott, Town of East Hampton, State of New York. Claimant was in a westbound direction, traveling in the bicycle lane of westbound Route 27. While crossing over a drainage grate, claimant's front tire became stuck and claimant was catapulted over the front of his bicycle. The tire became stuck in the space between the edge of the grate and the frame of the box which holds the grate. The grate and manner in which claimant's tire got stuck are portrayed in claimant's Exhibits 1 through 7. Claimant's description of the accident is supported by his witness Paul Foresman. Mr. Foresman is a friend of claimant and was traveling behind him at the time of claimant's accident.
The facts of the accident, as described, are simple and uncontroverted. Claimant contends defendant was negligent in permitting the condition to exist. Claimant argues the gap between the edge of the drain grate and the frame of the box was too large. In support of his position, claimant called Joseph Cannizzo (hereinafter "Cannizzo"), a civil engineer, to testify. Cannizzo inspected the drainage structure and found a 1¼ inch gap between the grate and the frame. The expert noted a ½ inch gap on the other side of the grate. According to the witness, the grate could move a total of 1¾ inches within the frame. Cannizzo also noted there was no locking device to hold the grate within the frame. This movement within the frame was caused by cars traversing the roadway. The witness testified the grate did not meet the requirements of defendant's Highway Design Manual because it failed to provide a design that does not catch a bicycle wheel. This opinion was based on the knowledge that bicyclists were permitted to use the roadway pursuant to the NYS Vehicle and Traffic Law (§1234[a]), that the NYS Highway Design Manual anticipated bicyclists (§18.08 et. seq.), and a reading of the specifications (Exhibit 11) show a ¼ inch gap.
In examining claimant's Exhibit 1, the Court notes claimant used a tape measure to show a gap of 1¼ inch. In addition, in looking at claimant's Exhibit 7, the Court notes claimant's tire is in the gap in question. The wheel is standing straight up and there is no room between the bicycle tire, the edge of the drainage grates, and the frame. The Court estimates the gap to be just over 1 inch. Defendant called one witness, Harold Tarry, to testify. Mr. Tarry is an engineer employed by the NYS Department of Transportation. He is the Design Unit Supervisor and as such he manages a unit of engineers that design highway projects, reconstruction projects and new construction projects. The witness is also involved in bike lane design. Included in designing bike lanes is designing drains within the lanes. The witness identified claimant's Exhibit 4 as standard reticuline grate. It is a grate that maximizes the amount of water runoff for a bicycle to traverse while still providing a suitable surface. This is the only type of grate used where bicycles are allowed. According to the standard specifications for this grate at the time of its installation, the gap between the grate and the frame could be anywhere from of an inch to 1¼ inches. According to the witness there is an additional ¾ of an inch between the curb box plate and the grate, which allows movement. Such a gap is accepted with the design of drains according to New York State's standards. The grate is bolted into the box but the bolt goes through a slot which allows the grate to move. Upon cross-examination, the witness could not say whether or not this particular grate was secured by bolts.(1)
It is incumbent upon claimant to establish: the existence of a foreseeable dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that damages were sustained (Gordon v American Museum of Natural History, 67 NY2d 836).
It is the particular facts and circumstances of each case which will determine whether a dangerous or defective condition exists (Guerrieri v Summa, 193 AD2d 647).
However, a property owner may not be held liable in damages for "trivial defects on a walkway, not constituting a trap or nuisance, as a consequence of which a pedestrian might merely stumble, stub his toes, or trip over a raised projection" (Guerrieri v Summa, 193 AD2d 647, supra, quoting Liebl v Metropolitan Jockey Club, 10 AD2d 1006; see also, Hecht v City of New York, 89 AD2d 524, mod on other grounds 60 NY2d 57; Mascaro v State of New York, 46 AD2d 941, affd 38 NY2d 870; Levine v Macy & Co., 20 AD2d 761) (Marinaccio v LeChambord Rest., 246 AD2d 514, 515).
As previously stated, the Court finds the gap in the grate to be approximately 1¼ inches. Regardless of whether the grate was bolted into place or not, there is no evidence the grate was not operating as designed. The Court finds that the claimant has failed to prove that a dangerous condition existed or that the condition constituted a defect (Trincere v County of Suffolk, 90 NY2d 976).
Assuming arguendo, claimant has proven the condition was dangerous, he has failed to show that defendant was aware of the dangerous condition. Claimant has shown no accident history in this area.
In Urbaniak v Town of Clay, 237 AD2d 875, the Court said
Although a municipality owes an absolute duty to keep its highways in a reasonably safe condition (see, Friedman v State of New York, 67 NY2d 271, 283; Weiss v Fote, 7 NY2d 579, 584, rearg denied 8 NY2d 934), it is afforded a qualified immunity from liability arising out of highway planning decisions (Friedman v State of New York, supra, at 283; Alexander v Eldred, 63 NY2d 460, 465-466; Weiss v Fote, supra, at 585-586). A municipality may not be held liable "absent some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it" (Weiss v Fote, supra, at 586).
Claimant has raised no issue which would cause the Court to strip defendant of its immunity.
Accordingly, the Court finds in favor of defendant and dismisses the claim. All motions not specifically ruled upon are denied.
Let judgment be entered accordingly.
April 20, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. Claimant's expert indicated the grate was not bolted into place.