De Luke v. State

• Decision Date: 10 January 1991
• Citation: 169 A.D.2d 916,564 N.Y.S.2d 635
• Parties: , 65 Ed. Law Rep. 468 Donna A. De LUKE, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 635

564 N.Y.S.2d 635

169 A.D.2d 916, 65 Ed. Law Rep. 468

Donna A. De LUKE, Appellant, v. STATE of New York, Respondent.

Supreme Court, Appellate Division Third Department.

Jan. 10, 1991.

Parisi, De Lorenzo, Gordon, Pasquariello & Weiskopf, P.C. (Thomas E. De Lorenzo, of counsel), Schenectady, for appellant.

Robert Abrams, Atty. Gen. (Frank K. Walsh, of counsel), Albany, for respondent.

Before MAHONEY, P.J., and CASEY, WEISS, MERCURE and HARVEY, JJ.

WEISS, Justice.

Appeal from a judgment of the Court of Claims (Hanifin, J.), entered December 13, 1989, which dismissed the claim.

On November 4, 1986, claimant, a student at the State University of New York at Cobleskill in Schoharie County fell while descending a flight of stairs located between her dormitory at Fake Hall and Champlin Dining Hall where she ate her meals. Claimant testified that when she placed her left foot on to the first stair "[t]he stair gave way and broke loose and crumbled off and I fell to the landing". Following a bifurcated trial on the issue of liability, the Court of Claims rendered a decision dismissing the claim on the ground that claimant did not prove the State was negligent in failing to observe and anticipate the effects of a hairline crack on the step on which she fell prior to the fall and in the course of a reasonable inspection program. Claimant has appealed.

At the very outset, claimant has urged that our review of the underlying determination not be limited to whether the verdict is against the weight of evidence; rather, that we weigh the relative probative force of conflicting inferences which may be drawn from the testimony (see, Freund v. State of New York, 137 A.D.2d 908, 909, 524 N.Y.S.2d 575, lv. denied 72 N.Y.2d 802, 530 N.Y.S.2d 554, 526 N.E.2d 45; Cordts v State of New York, 125 A.D.2d 746, 749, 509 N.Y.S.2d 166). While indeed this court may render judgment as warranted by the record, it is important to observe that the trial court had the advantage of hearing the witnesses firsthand (Northern Westchester Professional Park Assocs. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809) and we are therefore reluctant to disturb any findings based solely upon credibility (see, Buffett v. Buffett, 166 A.D.2d 819, 563 N.Y.S.2d 167; Arnold v. State of New York, 108 A.D.2d 1021, 486 N.Y.S.2d 94). Within these principles, we examine the record to determine whether the State acted reasonably under the circumstances and whether an accident as described by claimant should have been foreseeable to the property owner (see, Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868). Reduced to the lowest common denominator, the issue distills to whether the evidence presented established that the State had notice of the alleged defective condition of the stairs before the accident (see, Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 838, 501 N.Y.S.2d 646, 492 N.E.2d 774) and failed to act appropriately.

Claimant called as witnesses three of the State's employees who worked in maintenance and repair at the college. Each was familiar with and had used the stairs, but none had any knowledge of either the condition of the subject stairs or of any requests to repair them. She then presented Caryn Kaplan, the residence hall director who testified that when she observed that the stairs were in "poor condition", she prepared and filed with the maintenance office a request for repair form a few days prior to the accident. Karen Cleary, claimant's classmate, testified that she had observed the stairs 30 days before the accident and that they were "pitted", contained "fine cracks" and had "crumbled" in places. She had been walking in front of claimant at the time of the fall but did not see it happen. On cross-examination, claimant testified that just before she fell, she had observed that the steps "were uncrumbled, unbroken with fine cracks in them. They appeared intact." In her examination before trial, however, claimant testified that she had looked at the stair as she was stepping on it and that "[i]t appeared fine". At that deposition she also testified that "the stairs were clear, they were unbroken and they were dry". Although her deposition testimony was that when asked, "Did you at any time notice any problem with any of the stairs?", she answered "No," upon the trial she stated that she had misunderstood the meaning of the word "problem".

In contrast, the State produced ...