Colangione v. State

• Decision Date: 12 November 1992
• Parties: Harry A. COLANGIONE, Sr., Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 948

589 N.Y.S.2d 948

187 A.D.2d 844

Harry A. COLANGIONE, Sr., Appellant, v. STATE of New York, Respondent.

Supreme Court, Appellate Division Third Department.

Nov. 12, 1992.

Morris J. Bloomberg, Albany, for appellant.

Robert Abrams, Atty. Gen. (Joseph Koczaja, of counsel), Albany, for respondent.

Before MIKOLL, J.P., and YESAWICH, LEVINE, CREW and HARVEY, JJ.

CREW, Justice.

Appeal from a judgment in favor of the State, entered June 26, 1992, upon a decision of the Court of Claims (E. Margolis, J.).

On July 8, 1988, claimant was injured while alighting from a boat docked at the Red Rock Bay camping area on Lake George in Washington County. To disembark, claimant stood on the gunwale, placed his right hand on the railing and "hopped" or jumped down approximately 20 inches to a dock built and maintained by the State. As claimant landed on the decking of the dock, which was built with pressure treated two-by-eight-inch No. 2 southern yellow pine boards, one of the boards broke and claimant's leg fell through, resulting in a broken fibula.

Claimant's theory at trial was that the State was negligent in, inter alia, its design, construction and/or maintenance of the dock. Specifically, claimant contended that because the board in question contained a large knot, it had been misgraded and the State, through the exercise of reasonable care, should have discovered and remedied the alleged defect. During trial, claimant was permitted to amend his claim to include a cause of action for breach of implied warranty of fitness based upon the rental fee paid and permit received for the dock space. The Court of Claims thereafter concluded that even assuming the board in question was improperly graded, the State's carpenters were not negligent in relying upon the grade stamped on the lumber and, further, that the State, as a landowner, had exercised reasonable care under the circumstances. The Court of Claims also found that claimant had abandoned his breach of warranty claim by failing to raise it in his posttrial brief. The claim was dismissed in its entirety and this appeal by claimant followed.

There should be an affirmance. Although this court may render judgment as warranted by the record, we are well aware that the Court of Claims had the advantage of observing the witnesses firsthand and are therefore reluctant to disturb any findings based solely upon credibility (De Luke v. State of New York, 169 A.D.2d 916, 917, 564 N.Y.S.2d 635; see, Cipriano v. State of New York, 171 A.D.2d 169, 172, 574 N.Y.S.2d 848, lv. denied 79 N.Y.2d 756, 583 N.Y.S.2d 191, 592 N.E.2d 799). As a landowner, the State has a duty to use reasonable care under the circumstances in maintaining its property in a safe condition (see, Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; Walter v. State of New York, 185 A.D.2d 536, 586 N.Y.S.2d 391). While the Court of Claims may have misconstrued some of the testimony regarding, inter alia, the manner in which claimant's accident occurred, the record fully supports its determination that the State did not breach its duty of care to claimant.

Both expert witnesses agreed that No. 2 southern yellow pine was appropriate for building this type of dock and that the maximum permissible knot size for a two-by-eight-inch No. 2 structural grade board was 2 1/2 inches for an edge knot and 3 1/2 inches for a center knot. Claimant's expert, utilizing grading rules established by the Southern Pine Inspection Bureau, measured the knot to be four-by-six inches and thus concluded that the board did not conform to No. 2 structural grade standards. The State's expert, utilizing standards adopted...