Miletta v. State

216 N.Y.S.3d 82

229 A.D.3d 981

Regina MILETTA, Appellant,

v.STATE of New York, Respondent

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 31, 2024

Decided and Entered: July 18, 2024

Dupée & Monroe, PC, Goshen (Jon C. Dupée Jr. of counsel), for appellant.

Letitia Janies, Attorney General, Albany (Frederick A. Brodie of counsel), for respondent.

Before: Egan Jr., J.P., Reynolds Fitzgerald, Ceresia, Fisher and Mackey, JJ.

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

Appeal from a judgment of the Court of Claims (Catherine C. Schaewe, J.), entered March 9, 2023, upon a decision of the court in favor of defendant.

On August 23, 2018, claimant was driving her vehicle near the intersection of State Route 97 and County Route 114 in the Town of Cochecton, Sullivan County, when she noticed that the advertising sign that she had previously placed in the grassy area of said intersection was askew. She pulled over to straighten the sign and, as she approached it, the ground gave way causing her to fall into a deep hole, seriously injuring her ankle. She then commenced this action seeking to recover for her injuries, asserting that the hole was due to defendant’s negligence in maintaining a culvert drain¹ whose grate had become partially dislodged, creating an open hole that constituted a dangerous condition which caused her fall and attendant injury. Following a bifurcated, nonjury trial on the issue of liability, the Court of Claims found that claimant failed to establish that defendant had actual or constructive notice of the culvert drain’s condition and dismissed the action. A judgment embodying the court’s decision was subsequently entered, from which claimant appeals. We affirm.

[1–5] "When reviewing a nonjury verdict, this Court has broad authority to independently review the probative weight of the evidence, but we generally defer to the trial court’s credibility determinations and factual findings, as that court had the opportunity to observe the witnesses" (McFadden v. State of New York, 200 A.D.3d 1357, 1357, 160 N.Y.S.3d 404 [3d Dept. 2021] [internal quotation marks and citations omitted]; see Lake v. State of New York, 151 A.D.3d 1425, 1425, 57 N.Y.S.3d 246 [3d Dept. 2017]). The State, like any landowner, "has a duty to maintain its property in a reasonably safe condition in view of all the circumstances," including a nondelegable duty to maintain areas adjacent to its roadways (Murphy v. State of New York, 188 A.D.3d 1330, 1331, 134 N.Y.S.3d 115 [3d Dept. 2020]; see Roque v. State of New York, 199 A.D.3d 1092, 1094, 156 N.Y.S.3d 557 [3d Dept. 2021]; Gray v. State of New York, 159 AD.3d 1166, 1167, 72 N.Y.S.3d 208 [3d Dept. 2018]). However, "[w]hile the State clearly owes a duty to claimant[ ] and others entering upon its property to maintain it in a reasonably safe condition under the cir- cumstances, it is not obligated to insure against every injury which may occur" (Smith v. State of New York, 260 A.D.2d 819, 820, 688 N.Y.S.2d 774 [3d Dept. 1999]). In a case such as this, "the claimant has the burden of establishing a dangerous or defective condition that the defendant created or had knowledge (actual or constructive) of, and that such condition was a cause of the accident" (Guzman v. State of New York, 221 A.D.3d 1107, 1108, 199 N.Y.S.3d 271 [3d Dept. 2023] [internal quotation marks, brackets and citation omitted]; see Murphy v. State of New York, 188 A.D.3d at 1331, 134 N.Y.S.3d 115). "Constructive notice may be established by showing that the condition was apparent, visible and existed for a sufficient time prior to the accident so as to allow the defendant to discover and remedy the problem" (Guzman v. State of New York, 221 A.D.3d at 1108, 199 N.Y.S.3d 271 [internal quotation marks, brackets and citations omitted]; see Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 837, 501 N.Y.S.2d 646, 492 N.E.2d 774 [1986]).

Claimant argues that the decision of the Court of Claims is not supported by a fair interpretation of the evidence. We disagree. Claimant testified that when she had initially placed her sign at the intersection a couple of weeks before her accident, the area was level and covered in a grassy, gravely dirt. She stated that she had noticed a slight elevation change in the area where she ultimately fell, but that she had not observed the culvert drain into which she fell. On the night of the accident, she testified that the area appeared to be the same as it was weeks before when she had initially posted the sign – a grassy, gravely, dirt area with no discernable hole. She further testified that she had placed a sign in the same spot a year earlier and had not noticed any hole at that time either.

An expert for claimant testified that had the State performed a reasonable inspection of the area, it would have discovered the dangerous condition of the dislodged grate at the culvert drain. However, he fails to support this assertion with any evidence as to how long the open hole had existed at the site. Furthermore, he also opined that the hole itself had likely been "camouflaged" by the dirt and grass covering it, which prevented the culvert drain from being discovered. Finally, his assertion that the culvert drain was known or should have been known by defendant was , unsupported by any evidence demonstrating same.

Defendant’s witness, a DOT resident engineer, testified that his duties consist of overseeing highway maintenance crews and operations, and that he was responsible for 505 lane miles of state highway maintenance, including Sullivan County. He further averred that DOT’s normal routine road maintenance includes drainage structures and ditching. He conceded that the culvert drain, which is located closer to County Route 114 than to the state route, is in the State’s right-of-way, and as such defendant was required...