Licari v. State

• Decision Date: 30 September 2013
• Docket Number: Claim No. 119105
• Citation: Licari v. State, 2013 NY Slip Op 33968(U), Claim No. 119105 (N.Y. Ct. Cl. Sep 30, 2013)
• Parties: CAROL ANN LICARI, Claimant, v. STATE OF NEW YORK, Defendant.
• Court: New York Court of Claims

2013 NY Slip Op 33968(U)

CAROL ANN LICARI, Claimant, v. STATE OF NEW YORK, Defendant.

Claim No. 119105

STATE OF NEW YORK COURT OF CLAIMS

FILED: October 16, 2013

September 30, 2013

DECISION

BEFORE: HON. JAMES H. FERREIRA Judge of the Court of Claims

APPEARANCES:

For Claimant:

Cassisi & Cassisi, P.C.

By: Richard Schirmer, Esq.

For Defendant:

Hon. Eric T. Schneiderman

Attorney General of the State of New York

By: Faisal H. Sheikh

Assistant Attorney General

Claimant Carol Ann Licari filed this claim with the Chief Clerk of the Court of Claims on October 29, 2010. In it, claimant seeks damages arising from injuries she alleges that she suffered on March 24, 2010 when she tripped and fell while walking on a "sidewalk/walkway" along the Hempstead Turnpike, between Gardiners Avenue and Southberry Lane, in the Town of Hempstead, Nassau County, New York. Claimant alleges in this claim that the sidewalk/walkway was in a defective, dangerous and/or hazardous condition and that defendant State of New York was negligent with respect to its ownership, inspection, operation, maintenance, management and/or control of the sidewalk/walkway.

A trial on the issue of liability was held on February 5, 2013 at the New York State Court of Claims in Hauppauge, New York. Claimant testified and called three other witnesses: her husband, Joseph Licari, and New York State Department of Transportation (hereinafter NYSDOT) employees Guillermo Rodriguez and James Paul Cona.¹ Claimant also offered documentary evidence, which was received into evidence.² Defendant called no witnesses and offered no documentary evidence. The parties also submitted post-trial memoranda. The relevant evidence presented at trial is summarized as follows.

Claimant testified that, on March 24, 2010, she went for a walk from her home, located at 33 Farm Lane in Levittown, New York, to the Rite Aid on Hempstead Turnpike. She intended to attend mass at St. Bernard's Church after visiting the Rite Aid. She was early so she walked a "huge circle" to get to the Rite Aid.³ She took this route about three times per week. Claimant testified that there are two sidewalks along the Hempstead Turnpike where she had her accident. One sidewalk is adjacent to a dealership and a store, "then there is a service road, and then there's an outside . . . sidewalk which is closer to Hempstead Turnpike." She took the "outside sidewalk" on the day of her accident because she was going to cross the street at the intersection of Southberry Lane and Hempstead Turnpike. The Hempstead Turnpike was on her right and the service road was on her left. Traffic on the Hempstead Turnpike was heading East and she was walking against thetraffic. With respect to her accident, claimant testified: "I encountered this piece that was sticking up from the sidewalk which I did not see and I fell over." She testified that the object that caused her to fall was "a steel . . . metal piece sticking up out of the ground." The metal "looked like it was cut off. It was ragged on top" and was sticking up out of the concrete. Claimant further testified that it "looked like a sign was taken off of it because it was up like so high and it had like little round holes in it that looks like something was bolted to it."

Claimant was shown a series of photographs, admitted into evidence as Claimant's Exhibits 9,10 and 11. She testified that the photographs depict what she fell on and affirmed that they were a fair and accurate depiction of the way the site looked on the date of the incident. She identified the object in the photographs using a red arrow (Claimant's Exhibits 9A, 10A, 11A). Claimant was shown another photograph - Claimant's Exhibit 8 - and identified it as depicting the "bolt" that caused her to fall. She testified that the photograph fairly and accurately depicted the object as it appeared on the date of her fall. The Court notes that Claimant's Exhibits 9, 10 and 11 depict what appears to be a metal object sticking out of a concrete walkway. There are trees, lightpoles and signs on the walkway. Claimant's Exhibits 7 and 8 depict what appears to be a metal object sitting on a gravel or rocky surface. The object has a nut and bolt through it and a ruler held next to it indicates that the object is approximately 2 to 2½ inches off the ground.

On cross-examination, claimant affirmed that she had walked this route about three times per week and had never noticed the condition before. She acknowledged that, shortly before her accident, she did not see anyone walking in front of her or towards her. She affirmed that she was looking straight ahead, and not down, at the time of the accident. On redirect, claimant explained that she usually used the other sidewalk, the one on the other side of the service road. She waswalking on the median on the date of her accident because she was going to the Rite Aid. She testified that "people walk on that sidewalk all the time." On recross, she affirmed that there was a crosswalk at the corner of the other sidewalk across the service road at Southberry Lane. She also affirmed that she had walked on the median prior to the accident and had not noticed the condition.

Next, Joseph Licari, claimant's husband, testified that he accompanied claimant to emergency room on March 24, 2010. On the way there, claimant showed him where she fell. The next day, Mr. Licari returned to the location. He saw "a piece of metal sticking out of the concrete." "It was like where a sign used to be . . . that came down." The metal was "all rusted." He took photographs of the piece of metal that claimant said that she tripped over. Mr. Licari testified that the object depicted in Claimant's Exhibit 8 "looks like" the piece of metal that he was referring to. He affirmed that the photograph depicts the condition of the metal on the day after the accident. He was shown Claimant's Exhibit 7 and testified that he was holding the ruler in that photograph while someone else took the picture. Mr. Licari affirmed that the photograph fairly and accurately depicted the condition of the bolt as it appeared on that day. He recalled that the metal object was two inches high. He testified that the concrete around the "bolt" was "all broken up." On cross-examination, Mr. Licari acknowledged that he did not witness the accident.

Next, Guillermo Rodriguez testified that he has been employed by NYSDOT as an Assistant Resident Engineer for about eight years. In this position, he serves as the second-in-charge to the Resident Engineer in the Nassau Central Residency in Region 10. His responsibilities include supervising several employees, including Highway Maintenance Supervisors I and II and a Sign Crew Supervisor. Rodriguez testified that a Highway Supervisor I is responsible for such tasks as guiderail and pothole repairs and supervising mowing operations. The Sign Crew Supervisor isresponsible for maintenance and placement of signs on State roadways in the Residency. On a daily basis, Rodriguez visits each NYSDOT job site and drives on each road in the Residency, "looking for work," including any missing signs. If he finds something that needs to be done, he makes a record of the location and give it to the supervisor. Rodriguez does not keep records of his daily inspections. NYSDOT uses a database called MAMIS to keep track of jobs done on its roadways. Highway Maintenance Supervisors and Sign Crew Supervisors also submit daily work reports to the Resident Engineer. Rodriguez testified that he identifies missing signs through police reports, which the Residency obtains "through claims," or if he notices "a post with no sign" while he is driving. Rodriguez testified that he does not walk the roadways, and that he did not know of anyone that he supervised who would walk the roadways. If he sees a missing sign, he flags it by putting a cone or barrel next to it. If it is something that is deemed an emergency, it will be taken care of right away; otherwise, it will be added to the next day's work. Rodriguez testified that the Resident Engineer also inspects the State roadways in the Residency and that the Highway Maintenance Supervisors II have inspection responsibilities in the areas in which they are assigned. No records are kept of these inspections. Rodriguez affirmed that NYSDOT is responsible for all signs on State roadways. This responsibility extends to repairing, replacing, reinstalling and removing signs.

Rodriguez testified that New York State Route 24 - also known as the Hempstead Turnpike - between Gardiners Avenue and Southberry Lane is contained within Nassau Central Residency. He is familiar with the layout of that area. Hempstead Turnpike has six lanes of traffic - three heading eastbound and three heading westbound — with a center median. The westbound side of the highway has a sidewalk. The eastbound side has a "marginal median," then a town road, and then a sidewalk. Rodriguez was shown Claimant's Exhibit 9 and identified it as depicting the eastboundsection of the Hempstead Turnpike with the marginal median and the town road. Rodriguez testified that the State is responsible for the maintenance of the Hempstead Turnpike, and the Town of Hempstead is responsible for the maintenance of the town road. The town is also responsible for the maintenance of the sidewalk adjacent to the westbound portion of the Hempstead Turnpike and for the sidewalk adjacent to the town road. The State is responsible for the maintenance of the signs on the sidewalks and the center median. With respect to the marginal median, Rodriguez testified: "we don't maintain anything on there except State signs." It was his understanding that the State had never been responsible for maintaining the marginal median except for the State signs. He testified: "It's not really a sidewalk. It's a median." There are also town signs on the median; the town is responsible for maintaining those. Town signs are identified as such by the letters "TOH" on the...