|Claimant short name:||SALMON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||GATHMAN & BENNETT, L.L.P.
By: John C. Bennett, Esq.
|Defendant's attorney:||ANDREW M. CUOMO, Attorney General of the State of
By: John L. Belford, IV, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 27, 2010|
|See also (multicaptioned case)|
Claimant seeks to recover for injuries she sustained when she fell while walking on a sidewalk adjacent to a State highway on June 13, 2004. The liability phase of the trial of this claim was conducted on December 2, 2008 and October 7, 2009(1) in Hauppauge, New York. Claimant presented her testimony and the testimony of: (1) Muthiah Vijayendran, New York State Department of Transportation (NYSDOT) Resident Engineer; (2) Charles Maass, NYSDOT Engineer-in-Charge; (3) George Peterson, Village of Brightwaters Foreman Mechanic; and (4) Daniel Falasco, Village of Brightwaters Village Engineer. Defendant presented the testimony of NYSDOT Highway Maintenance Supervisor John McNeil. Numerous photographic and documentary exhibits were received into evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court concludes that defendant is not liable to claimant for her injuries for the reasons that follow.
At approximately 4:00 p.m. on June 13, 2004, claimant was walking on a sidewalk adjacent to State Route 27A (otherwise known as "Montauk Highway") in front of the Bayshore-Brightwaters Public Library ("the Library"). The Library is located at the southeast corner of the intersection of Montauk Highway, a State highway that runs in an east-west direction, and South Windsor Avenue,(2) which runs north and south. Claimant was walking in a westerly direction, toward South Windsor Avenue, on the sidewalk on the south side of Montauk Highway, in front of the Library. The sidewalk was a concrete path that accommodated between two and three pedestrians walking abreast. A grass strip ran between the sidewalk and the curb to Montauk Highway for most of the stretch of the sidewalk in front of the Library, except for a small asphalt strip that ran east from the corner at South Windsor Avenue. As claimant approached the asphalt strip, she saw some other pedestrians walking towards her, so she moved to the right to let them pass. As she moved to the right, claimant's right foot landed in a depression on the right edge of the sidewalk, next to the grass strip. Claimant lost her balance and tumbled to the ground.
The depression that claimant stepped into was a concrete patch that had been made to fill a "cut-out" in the sidewalk. The cut-out had originally been constructed to accommodate a tree in the grass strip between the sidewalk and the curb, but the tree had been subsequently removed sometime prior to October 1982.(3) Photographs show that the concrete patch did not exist as late as October 1986, as grass can be seen growing into the area of the cut-out (see Defendant's Exhibit Q-3), but the patch can be seen in the lower right corner of a photograph taken on October 24, 2000 (see Defendant's Exhibit T-2). It appears as though the concrete patch existed as early as October 1996, as a photograph shows that the grass that had been growing into the cut-out was no longer present (see Defendant's Exhibit S-4). A similar patch was installed at another cut-out in the sidewalk in front of the Library to the east of where claimant fell. The patches at both locations were lower in elevation than the sidewalk, creating a height differential between the sidewalk surface and the concrete patches. The concrete patch that claimant stepped in causing her fall was acknowledged as being a "tripping hazard" at trial by Charles Maass and Muthiah Vijayendran, two professional engineers employed by NYSDOT.
From 1998 through 2000, the stretch of Montauk Highway in front of the Library was involved in a NYSDOT drainage improvement project ("the project"). Charles Maass, the NYSDOT Engineer-in-Charge of the project, testified that the State has a right-of-way that extends ten feet beyond the curb on State roadways. As part of the project, a NYSDOT contractor performed sidewalk replacement on certain parts of Montauk Highway in the area of the Library. Specifically, the "as-built" drawing(4) for the portion of the project in the vicinity of the Library shows that sidewalk replacement was done on the north side of Montauk Highway (see Defendant's Exhibit A). Further, while the as-built drawing shows that the project also included sidewalk replacement on the south side of Montauk Highway to the west of South Windsor Avenue, no sidewalk replacement or repair was done on the south side of Montauk Highway in front of the Library. NYSDOT, however, replaced the asphalt strip that ran east from the corner of Montauk Highway and South Windsor, and a single tree was planted in front of the Library in the grassy strip between the sidewalk and the curb (see id.).(5) Maass testified that the as-built drawing reflects the work that was done to the area, but that it was possible that some work could have been done and not be reflected on the drawing. Other than the replacement of the asphalt strip, however, Maass did not recall any work being done to the sidewalk area in front of the Library. Maass testified that it was within his discretion in the field to repair or replace sidewalks as part of the project if he saw that such was needed.
Maass testified that the Table of Maintenance Jurisdiction on the as-built drawing for the portion of the project in the vicinity of the Library (see id.) shows that the State does not have maintenance responsibility for the sidewalks within the right-of-way along this stretch of Montauk Highway. Similarly, Muthiah Vijayendran, a NYSDOT Resident Engineer whose responsibilities included maintenance of State highways, testified that the State had maintenance jurisdiction over the roadway surface of Montauk Highway from curb-to-curb, but did not have maintenance jurisdiction over the sidewalk in front of the Library. Vijayendran testified that the responsibility for sidewalk maintenance lay with the locality. John McNeil, a NYSDOT Highway Maintenance Supervisor, testified that if he became aware of a hazardous condition that posed an imminent danger on a sidewalk in the State right-of-way over which the State does not have maintenance jurisdiction, his practice is to contact the locality with the maintenance jurisdiction and advise them about the condition. If McNeil was unable to contact the locality, he would direct his crews to secure the area as needed until the locality was contacted and responded to the condition.
According to the Table of Maintenance Jurisdiction on the as-built drawing (see id.), the Village of Brightwaters and the Town of Islip each have maintenance jurisdiction over portions of the sidewalk in front of the Library. The Village of Brightwaters has maintenance jurisdiction over the stretch of sidewalk from the corner of Montauk Highway and South Windsor Avenue east to a point that is approximately halfway down the asphalt strip that is near the corner, and the Town of Islip has maintenance jurisdiction over the sidewalk east of that point. Daniel Falasco, Village Engineer for the Village of Brightwaters, and George Peterson, Village of Brightwaters Foreman Mechanic, both testified that the area where claimant fell was not within the maintenance jurisdiction of the Village of Brightwaters. No witnesses from the Town of Islip were called to testify about its maintenance jurisdiction, or lack thereof, over the specific site of claimant's fall.
Maass testified that before the project was accepted by NYSDOT, thereby releasing the contractor from any further work on the project, the Village of Brightwaters had sent to NYSDOT a "punch list" of items it wanted corrected or addressed. Nowhere in that punch list did the Village of Brightwaters identify the two concrete patches as items it wanted addressed before the project was accepted. Maass testified that he did not recall whether the Town of Islip had submitted any punch list for the project. The work on the project in the area of the Library was completed and accepted by Maass on August 1, 2000.
On July 12, 2004, one month after claimant's fall, Irene Kavanagh, a representative of the Library, made a service request (SR) to NYSDOT to fix the condition of the two "sunken" concrete patches in front of the Library (Claimant's Exhibit 7, at unnumbered p.9). Vijayendran responded to the SR by conducting an investigation, as well as visiting the site. According to a July 16, 2004 e-mail Vijayendran wrote to his supervisor about the SR, the Library representatives believed that NYSDOT made the cut-out "during a capital contract on RT27A [Montauk Highway]" (id., at unnumbered p.2). According to the e-mail, Maass "concurred that it was done by his contractor for some plantings and those have since died" and that "[s]omeone must have filled those voids with concrete and those sections have sunk" (id.). Vijayendran noted that Maass's version of how the cut-outs and the concrete patches came into existence "did not jibe" with the Library's account (id.). Vijayendran testified that at the time his assistant spoke to Maass and that he did not personally speak to Maass. Maass testified at trial that he did not remember NYSDOT's contractors making any cut-outs to the sidewalk in front of the Library as part of the project, and further that the trees that were being planted were small and did not require cut-outs.(6) In the e-mail, Vijayendran concluded that the responsibility for the maintenance of the sidewalk lay with the Town of Islip (id.).
The Highway Law provides in pertinent part that the State Commissioner of Transportation shall have the power to construct sidewalks adjacent to State highways in a town (Highway Law § 10 ). However, the responsibility for the maintenance of all sidewalks in the town constructed by the State adjacent to State highways lies with the town (see Highway Law § 140 ), and thus, the State bears no responsibility for such maintenance and cannot be held liable for a failure to maintain sidewalks that fall within the maintenance jurisdiction of a town (see Van Etten v State of New York, 103 Misc2d 487 [Ct Cl 1980]).
The evidence adduced at trial clearly demonstrates that the Town of Islip - and not the State of New York or the Village of Brightwaters - had the duty to maintain the portion of the sidewalk where claimant fell. In her post-trial memorandum, claimant requests that the Court take judicial notice of a decision rendered by Supreme Court Suffolk County granting summary judgment to the Village of Brightwaters and the Bay Shore-Brightwaters Public Library and Bay Shore Union Free School District in a parallel action commenced by claimant against the aforementioned governmental entities (see Salmon v Bay Shore-Brightwaters Pub. Library, et al., Sup Ct, Suffolk County, Jan. 30, 2007, Tanenbaum, J., Index No. 19362-2005). In that decision, Supreme Court found that neither the Village of Brightwaters nor the Library owned the sidewalk or had a "special use" duty to maintain the sidewalk, and further that the sidewalk was owned by the State of New York (id., at p.3).(7) Nothing in Supreme Court's decision is inconsistent with this Court's determination that the Town of Islip was responsible for the maintenance of the sidewalk. Further, for the reasons stated above (see fn 7), the Court is not bound by Supreme Court's determination that defendant owned the sidewalk area. Moreover, the evidence adduced at trial demonstrates that defendant did not own the sidewalk, but rather that it merely had a right-of-way over the sidewalk. Irrespective of whether defendant owned or had a right-of-way over the sidewalk, Highway Law § 140 (18) is clear that the responsibility for the maintenance of the sidewalk lay with the Town of Islip and therefore liability may not be predicated upon that ground against the State. Moreover, the fact that the State repaired or replaced the sidewalk along this stretch of Montauk Highway, or may have had the discretion to repair conditions existing on the sidewalk, does not alter the unconditional duty that Highway Law § 140 (18) imposes on the Town of Islip to maintain the sidewalk where claimant fell. Furthermore, McNeil's testimony that State maintenance crews occasionally secured sidewalks adjacent to State highways in the presence of an imminent danger is of no moment. None of these voluntary acts by the State supersede the Town's statutory duty to maintain the sidewalk or impose on the State a duty to maintain, replace or repair the sidewalk.
Inasmuch as the Town of Islip had a duty to maintain the sidewalk in front of the Library, defendant cannot be held liable for the failure to maintain it. Accordingly, defendant's motion to dismiss the claim for a failure to make a prima facie case of negligence based upon defendant's alleged failure to maintain the sidewalk, upon which the Court reserved decision at trial, is hereby granted.
In the alternative, claimant argues that defendant is liable for her injuries inasmuch as defendant constructed the cut-out and the concrete patch that caused claimant's fall. As noted above, the proof adduced at trial did not establish that defendant owned the sidewalk where claimant fell, so defendant cannot be held liable under well-established precedent fixing liability where a landowner either created or had actual or constructive notice of a dangerous condition (see e.g. Gordon v American Museum of Natural History, 67 NY2d 836 ). However, defendant may be liable as a non-landowner of the sidewalk if it "negligently constructed or repaired the sidewalk or actually created the defect that caused the accident" (Kobet v Consolidated Edison Co. of N.Y., 176 AD2d 785, 786 [2d Dept 1991]; see Forelli v Rugino, 139 AD2d 489 [2d Dept 1988]; Friedman v Gearrity, 33 AD2d 1044 [2d Dept 1970]). Claimant's proof does not establish that defendant negligently constructed or repaired the sidewalk or that it actually created the defect that caused claimant's fall. The proof at trial does not demonstrate either by whom or when the sidewalk was constructed with the cut-outs. Claimant argues that the July 16, 2004 Vijayendran e-mail establishes that the cut-outs were made by NYSDOT's contractors during the 1998-2000 drainage improvement project. The objective evidence, however, suggests otherwise, as photographs clearly show that the cut-outs were present in 1978 and 1986 (see Defendant's Exhibits O-2; Q-3). Further, the Court declines to grant much weight to Vijayendran's recitation of Maass's statement that the cut-outs were done by "his contractor," as the information was compiled second hand and was directly contradicted by Maass's credible trial testimony that no cut-outs were made in front of the Library as part of the project, which was supported by the above-referenced photographs.
The evidence adduced at trial permits the inference that defendant constructed the sidewalk with the two cut-outs at some point long before the 1998-2000 project, to accommodate trees that had been removed prior to October 1982. Even assuming, however, that the sidewalk was constructed by defendant with the cut-outs, it is not the mere presence of the cut-outs that created any dangerous condition. Rather, the uneven surfaces between the concrete patch and the sidewalk created the condition that caused claimant to trip and fall, and there was no credible evidence as to what person or entity made that patch. Indeed, the as-built drawing did not reflect any replacement or repair having been made to the sidewalk in front of the Library, although Maass acknowledged that it was possible for some work to not be reflected on the finished as-built drawing. Nevertheless, Maass credibly testified that he did not recall any work being done to the sidewalk in front of the Library as part of the project, and there was no other proof offered that would support a finding that defendant created the concrete patch. This striking lack of proof precludes a finding that defendant created the condition that caused claimant to stumble and fall.
Inasmuch as claimant has failed to prove by a preponderance of the credible evidence that defendant negligently constructed or repaired the sidewalk or created the defect that caused claimant's fall, defendant cannot be held liable for claimant's injuries.
It is the conclusion of this Court that defendant is not liable to claimant for her injuries. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim. Any motions or objections not previously ruled upon are hereby DENIED.
Let judgment be entered accordingly.
May 27, 2010
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. The liability phase of the trial of this claim commenced on December 2, 2008, and was scheduled to be completed that day. However, after taking claimant's testimony, claimant moved for an adjournment to conduct post-note of issue discovery, as defendant had disclosed certain documentary evidence to claimant on the eve of trial that should have been disclosed during discovery. Defendant did not object to the application, and the Court granted claimant's motion. After the additional discovery was completed, the trial was continued and concluded on October 7, 2009.
2. South Windsor becomes Windsor Avenue north of its intersection with Montauk Highway.
3. Photographs that were received in evidence show that a tree was present at the location of claimant's fall as late as April 1978, but that the tree was no longer present in October 1982 (see Defendant's Exhibits O-1 and P-1).
4. An "as-built" drawing is an engineering drawing that illustrates the work that was completed on a project.
5. Although it appears as though NYSDOT had planned for three trees to be planted in front of the Library (see Claimant's Exhibit 6), the as-built drawing (Defendant's Exhibit B) and a photograph taken in front of the Library after work was completed on the project (Defendant's Exhibit T-2) confirm that only one tree was planted in front of the Library as part of the project.
6. A photograph that was taken of the area on October 24, 2000, shortly after work was completed on the project, confirms that no cut-out was made to the sidewalk to accommodate the newly planted tree ( see Defendant's Exhibit T-2).
7. Inasmuch as the State was not a party to the companion Supreme Court action and did not have a full and fair opportunity to contest the prior determination, the doctrine of collateral estoppel may not be invoked to preclude the State from taking a contrary position to any issue decided in that action ( see D'Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 ).