Locario v State of New York

[*1] Locario v State of New York 2010 NY Slip Op 51790(U) [29 Misc 3d 1210(A)] Decided on September 13, 2010 Ct Cl Marin, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 13, 2010
Ct Cl

Shirley Rose Locario, Claimant,

against

State of New York

[FN1], Defendant.

114700



For Claimant:

Levine & Slavit, Esqs.

By: Leonard S. Slavit, Esq.

For Defendant:

Andrew M. Cuomo, Attorney General

by: John M. Hunter, AAG

Alan C. Marin, J.

This is the decision following the trial on liability of the claim of Shirley Rose Locario arising from her fall on the sidewalk in front of the Adam Clayton Powell State Office Building in Manhattan.

Late in the afternoon of Sunday, February 18, 2007, Mrs. Locario and her adult daughter, Angela Locario, took the subway into upper Manhattan from their home in Bronx County to shop at Marshall's, a department store on 125th Street. With the shopping done, the two proceeded back towards the subway stop to return home. Claimant described what happened next:

In front of the State Building on 125th Street on the sidewalk by the statue of Adam Clayton Powell . . . there was raised a brick about two and a half inches. My left boot got caught on it. I tripped and fell on my right knee, with my face down on the brick.

Claimant testified that the sidewalk was clear of snow or ice, although she recalled that it had snowed two or three days before. Mrs. Locario was carrying the two bottles of perfume she had purchased at Marshall's and wearing eyeglasses. It was about 6:30 p.m. (see the Aided Report, cl exh 3) and dark out, but the street lights had come on.

Angela Locario confirmed her mother's testimony as to what caused her to trip and fall: [*2]

The sidewalk is uneven. There were some raised blocks, and that's what she tripped on. It was like about two and a half inches, or something like that. The blocks aren't even with the sidewalk.

The only other witness we heard from was Eric Miller, then and now, the assistant manager of the Powell State Office Building. Portions of Mr. Miller's deposition of February 5, 2009 were read into evidence as part of claimant's case at trial, and defendant called him to the stand on its case.

The accident location is shown in two black and white photographs on one sheet of paper.[FN2] This is the northeast corner of 125th Street and Seventh Avenue, and the crosswalk depicted goes from the northeast corner to the northwest corner. Claimant was walking west when she fell (cl exh 3).

What the photos show is a portion of a concrete sidewalk made up of large pavers. Between the sidewalk and the crosswalk is a segment comprised of bricks; to the right of the sidewalk in the top photo, there is a brick area running up to the base of the statue of Congressman Powell. The sidewalk pavers are gray and the bricks red, according to trial testimony.

What can be seen from the photos is that where the sidewalk joins the bricks leading to the crosswalk, the bricks are noticeably elevated - - - by two and half inches testified both Shirley and Angela Locario. Defendant questions their estimate by noting that claimant did not measure the differential. However, the photo does contain some images with which the height differential can be compared: the footwear worn by various persons, and, of course, the red bricks, which Mr. Miller testified were no longer than twelve inches - - suggesting that two and half inches is within reason. Moreover, Mr. Miller took the stand following the Locarios' testimony, and was not asked on defendant's case to challenge the prior testimony on how high the brick portion

was elevated above the sidewalk.

Miller did not in his deposition or at trial directly state that he was aware of the subject differential; rather, the following more general testimony was elicited at trial on direct examination:

Q. Now since you have been at that building, have you observed any height differentials in the sidewalk that you considered dangerous and a tripping hazard?

A. No.

The assistant building manager set out the scope of his responsibility in jurisdictional terms: "I am only responsible for the State property. I do not conduct inspections of the City sidewalks." Miller added that if he saw or learned of something "significant, like a hole, a hole in the sidewalk," he would notify City of New York personnel. [*3]

***

Section 7-210, which was added to the Administrative Code of the City of New York effective September 14, 2003, made property owners, not the City of New York, responsible for any tort liability incurred on the sidewalk in front of, or abutting, such owners' premises. In our case, there is no dispute that the incident occurred on the sidewalk in front of the Powell State Office Building. Secondly, the State of New York is a property owner like any other for purposes of §7-210. Miller v State of New York, 62 NY2d 506 (1984); Triani v State of New York, Ct Cl, August 30, 2006 (unreported, claim no. 112028, motion no. M-71583, UID No.2006-016-055[FN3], Marin J.), rev'd on other grounds 44 AD3d 1032 (2d Dept 2007).

Thus, the sidewalk where Mrs. Locario fell is for the purposes of tort law effectively state property, and defendant, if the proof is sufficient, is subject to liability for a trip and fall thereon. To prevail, claimant must prove that what caused her to fall was a dangerous condition and that defendant had actual or constructive notice of the condition or defect which proximately caused her accident. Gordon v American Museum of Natural History, 67 NY2d 836 (1986).

The Court of Appeals has explained that there is no rule that pavement defects have to satisfy some minimum dimension to be actionable; instead it depends on the specific facts and circumstances of each case, "including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' of the injury [citation omitted] . . ." Trincere v County of Suffolk, 90 NY2d 976, 978 (1997).

Considering such standard, this Court finds the subject condition was a dangerous one. Among other things, of note is the uncontradicted testimony that the bricks were elevated two and half inches above the concrete sidewalk.[FN4] Compare that with a little over a half inch differential between paving slabs in Trincere and one of three-quarters of an inch in Lopez v New York City Housing Authority, 245 AD2d 273 (2d Dept 1997), which also involved red bricks adjacent to gray cement pavement. (In both Trincere and Lopez, defendant prevailed.)

Even accepting that Mr. Miller or any state employee did not have actual notice of the elevation at issue here, this Court finds that Miller, who walked the area regularly but did not regard the sidewalk as part of his domain, had constructive notice of this dangerous condition. There being no dispute that the differential caused claimant's fall, the Court finds the defendant liable.

However, Mrs. Locario must share some responsibility. She testified that she had not looked down, both just before her fall and from several steps away. Given, inter alia, claimant's testimony that she had never walked on this sidewalk before and that there was no natural light, Mrs. Locario should have been more alert to where she was headed.

The Court therefore finds defendant State of New York to be sixty (60) % liable for the trip and fall of Shirley Rose Locario on February 18, 2007 and any resulting injuries therefrom. [*4]A trial on the matter of damages will be scheduled by the Court.

LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.

New York, New York

September 13, 2010

ALAN C. MARIN

Judge of the Court of Claims Footnotes

Footnote 1:The caption was amended on the record at trial to reflect the proper defendant.

Footnote 2: The two photos, top and bottom on one page, are claimant's exhibit 7 and are also part of claimant's exhibit 6, with the latter presenting a somewhat crisper image. On exhibit 7, claimant circled the spot of her trip and fall on both photos; on exhibit 6, claimant marked only the top photo - - with an "X' where she tripped (as well as placing a small circle where she was seated after her fall).

Footnote 3: This and other decisions of the Court of Claims may be found on the court's website: www.nyscourtofclaims.state.ny.us.

Footnote 4:Note that the red brick portion away from the accident situs appears to be flush with the gray sidewalk (cl exh 7, the top photo).