Cacciatore v State of New York

[*1] Cacciatore v State of New York 2006 NY Slip Op 52110(U) [13 Misc 3d 1234(A)] Decided on October 18, 2006 Ct Cl Milano, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 18, 2006
Ct Cl

Mary Cacciatore and Frank Cacciatore, Claimants,

against

State of New York, Defendant.



109721



APPEARANCES:For Claimants:

Dell & Little, Esqs.

By: Joseph G. Dell, Esq.

For Defendant:

Hon. Eliot Spitzer, New York State Attorney General

By: Todd A. Schall, Assistant Attorney General

Frank P. Milano, J.

On July 6, 2004, while visiting the New York State Department of Motor Vehicles (DMV) offices in Garden City, Mary Cacciatore (claimant), accompanied by her husband Frank Cacciatore, tripped and fell, injuring herself. The day was dry and sunny, and no conditions of wetness or slipperiness were implicated.

Mrs. Cacciatore, testifying credibly, stated that she, while exiting the premises, tripped and fell after having caught her right foot on an area rug, commonly known as a "runner", which had been positioned within the last set of exterior doors, in a hallway area which led directly to the open DMV counter space serving the public.

Mrs. Cacciatore testified that after falling she observed that a piece of the rug's material was stuck to the right toe of her sneaker-shod foot. She described the rug in question as "ripped" and "shredded," and she further identified a specific rip in the rug, pointing to it in a photograph of the rug in claimant's Exhibit 5 (E), as the area which caused her to trip.

The rug itself, depicted in claimant's Exhibits 5 (A) through 5 (L) (all photographs), was admitted into evidence, without objection, as claimant's Exhibit 6. It measures 33 inches wide by 148 inches long on one side and 149 inches long on the other side (due to fraying). The rip or tear in the rug, identified as the area over which claimant tripped, is 28.5 inches from the nearest end of the rug and it extends 9 inches from the edge of the rug toward the interior of the rug, running across the rug's width. Another tear, about 4 inches long, again extending widthwise from the rug's edge, is about 5 inches closer to the rug's nearest end than the 9-inch tear, placing it 23.5 inches from the nearest end of the rug.

Further testimony indicated DMV patrons were traversing the rug across its width, not its length. Therefore, an individual approaching from the edge of the rug from which the rips started [*2]would be facing a broken line of fabric, an open-edged rug, with two tears. It is at this location which claimant identified her right foot became caught, over which she tripped, and which caused her to fall.

Upon cross-examination, unable to specifically recall whether the tear in the rug was to her left or right as she approached the rug, claimant testified she was not looking down at the ground as she walked, but looking straight ahead.

Claimant's only other witness, her husband Frank, although at her side when she fell, did not see what caused her to fall, but did observe her fall to her right knee and did testify to the poor condition of the rug. He observed rips in the rug and further said the rug "was very wavy."

There was inexact testimony concerning the specific length of time the rug was in use at the Garden City DMV office at the location of claimant's fall, with evidence suggesting the time ranged from "less than a year" (trial testimony of Judith Ballas) to up to seven years (Exhibit 4, deposition testimony of Anita Vollaro). On this point, the Court credits the trial testimony of Anita Vollaro, a long-time DMV employee at the Garden City office, who testified, as to the length of time the rug in question had been in use at the Garden City DMV, "I would say that it was more than a year." She stated she believed her deposition testimony was referring to wall-to-wall carpeting, not area carpeting, such as the runner rug, to explain her differing estimates of time.

"Having waived its sovereign immunity, the State is subject to the same rules of liability as apply to private citizens" (Preston v State of New York, 59 NY2d 997, 998 [1983]). "It is beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition" (Di Ponzio v Riordan, 89 NY2d 578, 582 [1997]; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]). However, "[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur" (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).

The State's liability for a slip and fall is premised upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).

Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see, Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561), 562 [2d Dept 1992]).

In Bernstein v Red Apple Supermarkets (227 AD2d 264 [1st Dept 1996], lv dismissed 89 NY2d 961 [1997]), the court reversed a trial court's decision to set aside a jury verdict in favor of a plaintiff who had fallen after the heel of her shoe became entangled in a torn rubber mat at defendant's supermarket. Contrary to the trial court's decision finding the condition to be merely [*3]a "slight tear" for which the defendant "may not be cast in damages," the appellate court cited testimony of the plaintiffs at trial as showing that "there was an approximately one foot long slit or tear in the carpeted floor mat at the entrance to the defendant's premises which caused the plaintiff . . . to trip, fall and to sustain serious personal injuries" (Bernstein, 227 AD2d at 265).

Here, the rug's condition was readily observable at trial and the probative value of that one piece of evidence, as to its condition, outweighed the aggregate value of all of the other evidence combined. Charitably characterized, the rug is, and was at the time of the accident, in wretched condition. It was filthy, worn, threadbare, badly frayed, torn and ripped. If a well conditioned, appropriately maintained rug were a hearty stew, claimant's Exhibit 6 would be thin gruel. Beyond its exceedingly poor condition, the rug laid flat on a vinyl floor, subject to bunching, without any rubber backing and unaffixed to the floor in any way.

Moreover, any attempt by defendant to characterize the defects in the rug as trivial' is belied by simple observation of the rug's condition.

The Court finds the rug in question to have been in use at the location of claimant's fall at the Garden City DMV office for in excess of one year. Further, given the condition of the rug as it existed on July 6, 2004, a seriously degraded condition, the Court finds, due both to the variety and number of defects and further, to the advanced nature of the defects themselves at the time of claimant's accident, that the defects which then existed, the wear, tears, rips, and fraying, had existed for a lengthy period of time prior to July 6, 2004. Accordingly, the defendant had notice of the dangerous condition presented by the rug, which condition caused claimant's fall.

Notwithstanding the defendant's several attempts to disavow responsibility for the placement or care of the rug in question, the Court finds the defendant to have exercised exclusive control over the rug. This was demonstrated in several ways.

Initially, it should be noted DMV was the sole occupant of the entire building, which was the site of claimant's fall. Moreover, the landlord, the owner of the premises, had no on-site presence whatsoever. The landlord was entirely absent, without so much as an office or an employee on site.

It has been long recognized "that the person in possession and control of property is best able to identify and prevent any harm to others . . . . Indeed, a person who chooses to take possession and control of property is fairly charged with the responsibility of maintaining it and should expect to be held responsible for any defects" (Butler v Rafferty, 100 NY2d 265, 270 [2003]). For that reason, "[a]n out-of-possession landlord is not liable for injuries that occur on the premises after the transfer of possession and control to a tenant unless the landlord (1) is contractually obligated to repair the premises or (2) has reserved the right to enter the premises to make repairs, and liability is based on a significant structural or design defect that violates a specific statutory safety provision" (Reichberg v Lemel, 29 AD3d 664, 665 [2d Dept 2006]).

Here, the lease between the landlord and DMV required the out-of possession landlord to provide janitorial services (defendant's Exhibit B, Lease § 12) and to make repairs "to put and keep the premises, fixtures and appurtenances in good order and condition . . . except repairs required as a result of the negligence of the Tenant" (Lease § 13a). Neither of these lease provisions was persuasively demonstrated to apply to the unaffixed runner rug (as opposed to the installed wall-to-wall carpeting). Further, the rug did not involve the structure, fixtures or appurtenances of the building, but rather represented an interior design choice over which the [*4]DMV exercised exclusive control (see Brockington v Brookfield Development Corp., 20 AD3d 382, 383 [2d Dept 2005]).

To that point, demonstrating DMV's ability to exercise control over the rug in question, which the Court finds DMV chose to exercise, § 28 of the Lease (defendant's Exhibit B), entitled, "ALTERATIONS BY TENANT," reads, "It is understood and agreed by and between the parties hereto that during the Lease period, renewal period, extension or holdover period the Tenant reserves the right to make minor alterations or installations, such as carpeting, installation of telephone and related equipment, etc."

Upon cross-examination, defendant's witness Judith Ballas, the most senior DMV employee on site, and as manager of the premises, responsible for its operation, in response to a question about the rug, "They [DMV supervisory staff] would remove it periodically and put a new carpet in place, right?" answered, "Yes, sir."

Finally, once the claimant's accident occurred, DMV took it upon itself, without any involvement of the landlord, to replace the rug and to purchase a new rug, buying it through a DMV procurement program, using DMV funds to buy the replacement rug. While the Court recognizes that evidence of subsequent remedial measures are generally inadmissible in a negligence case, such evidence may be considered where there is an issue of maintenance or control (Niemann v Luca, 214 AD2d 658, 658 [2nd Dept 1995]; Cleland v 60-02 Woodside Corp., 221 AD2d 307, 308 [2nd Dept 1995]).

The Court has considered the subsequent measures taken by DMV for that limited purpose only. In fact, evidence of subsequent remedial measures was admitted in a remarkably similar case, also involving a dispute over control of a torn carpet which caused a plaintiff's injuries. In DeRoche v Methodist Hosp. of Brooklyn (249 AD2d 438, 439 [2nd Dept 1998]), it was the defendant landlord seeking to introduce evidence of subsequent remedial measures taken by a tenant. The court explained that:

"[T]he defendant admitted that it was responsible for the maintenance of the leased premises, but denied that its duty to maintain the premises encompassed repair or replacement of the carpeting installed by [the tenant]. Moreover, the lease which was in effect on the date of the plaintiff's accident did not clearly define the scope of the defendant's maintenance responsibilities, or make any specific reference to the carpeting. Under these circumstances, the defendant should have been permitted to elicit evidence that [the tenant] repaired or replaced the carpeting after the plaintiff's accident."

Although the Court finds the defendant failed in its responsibility to provide the public, in a public space at the Garden City DMV, an area free of a dangerous or defective condition, and therefore finds the defendant liable, the Court also finds the claimant contributed to her fall. The claimant failed to observe the rug prior to her fall, having testified to looking straight ahead, not down, as she crossed and ultimately tripped on the torn and ripped rug. To the extent claimant failed to see what was plainly there to be seen, and to avoid the dangerous condition defendant permitted, a badly worn, torn rug, in a heavily traveled pedestrian hallway, the Court finds claimant to have been partially responsible for her fall.

The Court recognizes, and common experience validates, people do not, nor should they, walk about, eyes cast exclusively downward, affixed to the ground, to navigate. However, the [*5]use of long range vision, peripheral vision and an occasional glance down, are all part of walking about safely, and part of avoiding missteps or tripping. Accordingly, the Court finds the claimant to be 10% responsible, and defendant 90% responsible, for claimant's fall and ensuing damages.

All motions not previously decided are hereby denied.

Let interlocutory judgment be entered accordingly.

The claim will be conferenced by telephone on November 9, 2006 at 10:30 a.m. for the purpose of scheduling a trial as to damages as well as any further disclosure proceedings related to claimants' damages. The Court will initiate the telephone conference.