Opinion
# 2014-040-046 Claim No. 112244
09-19-2014
EILEEN ANDREYEV and GREGORY ANDREYEV v. THE STATE OF NEW YORK
GIANFORTUNE & MIONIS, P.C. By: John P. Gianfortune, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: John L. Belford, IV, Esq., AAG
Synopsis
Claimant fell from a raised walkway in front of a store. It is asserted the walkway resulted from a roadway reconstruction project in which the State was involved. Court finds State immune from liability under doctrine of qualified immunity.
Case information
| UID: | 2014-040-046 |
| Claimant(s): | EILEEN ANDREYEV and GREGORY ANDREYEV |
| Claimant short name: | ANDREYEV |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 112244 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | GIANFORTUNE & MIONIS, P.C. By: John P. Gianfortune, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: John L. Belford, IV, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | September 19, 2014 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the Court finds that the State is immune from liability in this Claim under the doctrine of qualified immunity that applies to its design, planning and construction decisions in connection with the highway reconstruction project described herein. The Court further determines that, even if the doctrine did not apply, Claimant, Eileen Andreyev, failed to establish, by a preponderance of the credible evidence, her Claim that the State of New York was negligent in connection with personal injuries she sustained in a fall. Ms. Andreyev alleges that Defendant was negligent in planning, designing, and building the project because it created an unsafe condition, a curb or step, in the middle of a sidewalk area that was altered as part of a larger project.
The Claim of Gregory Andreyev is derivative in nature. Therefore, all references to Claimant herein shall be to Eileen Andreyev unless otherwise noted.
A bifurcated trial, addressing liability issues only, was held on September 10-12, 2013 and October 9, 2013 at the Court of Claims in Hauppauge, New York. There were eight witnesses: Claimant; her husband, Gregory Andreyev; Michael Pelc (the Assistant Civil Engineer for Suffolk County [the "County"] who drew the plans for the project); Karl W. Drechsler (the New York State Department of Transportation ["DOT"] engineer-in-charge ["EIC"] who oversaw the construction of the project); Joseph Zito (owner of the strip mall where Claimant fell); Louise Pantazis (the proprietor of a beauty salon in the strip mall that Claimant was visiting before she fell); Steven Zalben, (Claimant's expert); and Richard W. Gass (Defendant's expert). Thereafter, the parties requested and were granted additional time to order a transcript, and then to submit post-trial memoranda.
EXPERTS
Mr. Zalben became a New York-licensed architect in 1987 and also is registered in New Jersey and California. He is familiar with planning and designing sidewalks and said that he has particular expertise in accessibility issues and teaches on the subject at Pratt. Mr. Zalben has never been employed by DOT, nor has he designed roads or sidewalks for the State. Mr. Zalben reviewed various depositions, drawings, and photographs. He also visited the accident site and surrounding area in February 2012, at which time he took measurements and photographs.
Mr. Gass became a New York-licensed landscape architect in 1998. Since 2000, he has worked for DOT, for the past six years as a Senior Landscape Architect. He also holds the title of Regional Landscape Architect in which capacity he supervises the work of several other DOT architects. He also reviews the work of outside consultants to make sure it complies with the Americans with Disabilities Act ("ADA") and with DOT regulations. Mr. Gass is primarily involved in the design of pedestrian facilities. He has had specific training with regard to designing and reviewing sidewalks for the State, including ADA compliance. He has worked on two pedestrian facilities in the last couple of years and reckons that he has designed and/or reviewed at least 1,000 such facilities. Mr. Gass has taught classes to DOT personnel about compliance issues relative to the ADA and the New York State Highway Design Manual (see Ex. 55 [chapter 18 of that manual relating to facilities for pedestrians and bicyclists] [the "DOT HDM"]). Mr. Gass reviewed various materials submitted by Claimant. He visited the site on a couple of occasions and took measurements there and made diagrams based upon those figures (see Ex. 12 [original drawing]; Ex. 71 [corrected version]).
FACTS
On February 28, 2004, Claimant was injured when she fell after exiting the Salon DiModa hair salon (the "Salon"). The Salon is at 1044 Little East Neck Road, West Babylon, New York. It is located within a strip mall on the west side of Little East Neck Road, between 9th Street and 10th Street (the "Strip Mall"). The Salon is at the northern end of the Strip Mall, two stores from the corner of 10th Street.
Some years prior to Claimant's accident, a 1.4-mile portion of Little East Neck Road was rehabilitated and reconstructed, which included the vicinity of the Strip Mall (the "Project") (see Ex. 49, pp. 2-3; Ex. 60, p. 3). The original design plans for the Project (the "Design Plans") were drawn by Suffolk County and, more particularly, by Mr. Pelc. Mr. Pelc has a two-year degree in the civil technology aspects of civil engineering and had survey, design and construction experience when he drew the Design Plans. He has designed about 20 projects over the past 20 years.
The original drawings underwent at least two rounds of revisions, and ultimately the Design Plans were approved by both the County and the State (see Ex. 21 [Project cover sheet with approval signatures]). The State put the Project out to bid, awarded the contract, and supervised construction of the Project.
Mr. Drechsler was DOT's EIC for the Project. His job was to make sure the contractors built the Project in accordance with the Design Plans. He began working for the State in 1960 and became an EIC in 1974. Because EICs typically oversee more than one project at a time, DOT hired an outside consulting firm to act as resident engineer for the Project. The resident engineer was on site to monitor the day-to-day progress of the work. Mr. Drechsler said that he was in regular contact with that individual (who is now deceased). Moreover, he said that he visited the Project site at least weekly. The final plans were drawn to reflect all changes from the Design Plans (the "As-Built Plans" and, together with the Design Plans, the "Plans") (cf. Ex. 23 [Design Plans because box at bottom for "as built revisions" is blank] with Ex. 24 [same box, highlighted in yellow, dated January 9, 1998 and signed by Mr. Drechsler, with revisions noted]. Mr. Drechsler had no independent recollection of specific work done on the Project, but testified based upon his review of records and his general recollection.
The Project included the elimination of a black, asphalt-paved area that allowed for head-in parking (the "Old Parking Area") that had been in front of the Strip Mall, as well as removal of a sidewalk alongside Little East Neck Road (see Exs. 3-8, 14 [photographs of the Strip Mall before the Project]). In their stead, a new parking lane parallel to the roadway was created, along with a new curb adjacent to the parking spaces (the "New Curb"), and a new concrete sidewalk (the "New Sidewalk") next to the New Curb. The Project also called for the restoration of the remainder of the Old Parking Area by the construction of a new concrete area (the "Transitional Slab") to connect the New Sidewalk with an existing concrete walkway that pre-dated the Project (the "Old Walkway") (see Ex. 24 [Mr. Pelc drew numbers on one of the plans, in orange grease pencil, to indicate the location of: (1) the Old Walkway; (2) the Transitional Slab; and (3) the New Sidewalk]; Ex. 62A [Mr. Pelc drew same numbers in yellow to mark same locations on photograph of Strip Mall after Project completed]). The Old Walkway, the Transitional Slab and the New Sidewalk are parallel to one another.
Mr. Zito dedicated a strip of his property for the Project, beginning at the front of the Strip Mall, by the roadway, and extending back onto a portion of the Old Parking Area to a distance of about seven feet from the edge of the Old Walkway (see Ex. 33 [area on plan marked in yellow with diagonal lines]). He continues to own the rest of the Strip Mall property. Thus, the Transitional Slab straddles the land dedicated to the Project and the property retained by Mr. Zito. The place where the Transitional Slab actually attaches to the Old Walkway (where Claimant fell) is entirely on Mr. Zito's property (see Ex. 33A [Mr. Pelc drew red numbers to indicate: (1) the Old Walkway; (2) the Transitional Slab (straddling the dedicated property and land retained by Mr. Zito); and (3) the New Sidewalk (along with land dedicated to the roadway and new parking lane)]).
The Old Walkway runs parallel to, and directly in front of, the several storefronts of the Strip Mall and is generally level, with one exception. Mr. Gass noted that stores at the Strip Mall appear to be comprised of separate buildings with different floor elevations, different second floors, and different setbacks (see Ex. 63 [before Project] and Ex. 70 [after Project]). Several witnesses thought, based primarily upon the photographic exhibits, that the height of the Salon's door and, accordingly, the height of the Old Walkway in that area, appeared to be higher than the elevation of the walkway farther to the south along the Strip Mall (see Ex. 9A [Mr. Pelc circled area in green]; Ex. 9B [Mr. Drechsler same], Ex. 9E, Ex. 63B [Mr. Drechsler marked green arrow (Salon door) and yellow arrow (next door to the south, near where elevation changes)]).
Evidence of that height differential is found along a portion of the Old Walkway, approximately 17 feet south of the entrance to the Salon. There, the elevation of the Old Walkway, which had been rather level up to that point as one proceeds from south to north, appears to ascend several inches by means of a little ramp (the "Old Walkway Ramp"). Thereafter, the Old Walkway again appears to be fairly level as it continues towards the Salon and the north end of the Strip Mall. Mr. Drechsler agreed that the concrete surface of the Old Walkway itself was not disturbed during the Project. Moreover, Mr. Gass and Mr. Zalben each said that the Old Walkway Ramp predated the Project (see Ex. C2 [Old Walkway Ramp is inside red circle]). The slope of the Old Walkway Ramp runs perpendicular to that of the Transitional Slab. The two ramps intersect in the area depicted at the bottom of the red circle drawn on Exhibit C2.
Before the Project was built, a curb had been located along the entire length of the front of the Old Walkway (the "Old Curb") (see Exs. 3-8, 63-67 [photographs of Strip Mall before Project]), which separated it from the Old Parking Area below it. Mr. Gass agreed that the Plans do not indicate how the Transitional Slab should join with, or attach to, the Old Curb, and that no cross-slope diagram was included, as it was for the Fontana Property (see below) (Tr., pp. 888, 891).
The edge of the Transitional Slab that Mr. Drechsler built meets flush with the top of the Old Walkway, beginning at the southern end of the Strip Mall, and continues in that fashion for most of the Old Walkway's length. In other words, the Old Curb is completely buried or covered in that area (see Exs. 9-11, 62 [photographs taken after the Project was completed]). Towards the northern end of the Strip Mall, however, the Old Curb reemerges in the area of the Old Walkway Ramp so that the edge of the Transitional Slab beyond that point only reaches to, or touches, the bottom of the Old Curb. Thus, there is a step down of about six inches, via the Old Curb, from the Old Walkway to the Transitional Slab in front of the Salon (see Ex. 9A [Mr. Pelc circled in green the area in front of the Salon where the Old Curb is visible]).
Mr. Drechsler testified that the sole reason he decided to leave the Old Curb in front of the Salon was to maintain a consistent cross-slope on the Transitional Slab. In his judgment, the cross-slope was already significant and would become too steep if he tried to bring the edge of the Transitional Slab level with the top of the Old Sidewalk in the area north of the Old Walkway Ramp. Mr. Gass, likewise, believed that the slope of the Transitional Slab, as-built, was the maximum possible, for practical purposes, and was in line with ADA and Uniform Federal Accessibility Standards ("UFAS") requirements when it was built. He said that, in order to have the slab meet the top of the Old Curb in front of the Salon, the slope would have increased to more than 12%, "and that just isn't … comfortable to walk on" (Tr., pp. 827-828). It also would have made the Transitional Slab into a "strangely warped" or "twisted" surface, very steep by the north end (by the Salon) and flattened out towards the south end (Tr., p. 828). Mr. Zalben opined that "[p]edestrian safety was not considered" if cross-slope was the only consideration that determined how the Transitional Slab abutted the Old Walkway, adding that he considered that, not only a violation of good and accepted practice, but also of the DOT HDM itself (Tr., p. 608).
Claimant had never been to the Salon before she went there to meet her daughters at about 10:20 a.m. on the morning of the accident. It was a beautiful, sunny day. Ms. Andreyev parked her car on 9th Street, walked east until she turned the corner onto the west side of Little East Neck Road, and then continued north. Ms. Andreyev said that she walked close to the buildings along the Old Walkway because she was looking for the entrance to the Salon. She illustrated her route by drawing green lines and/or arrows on several of the photographic exhibits (see Ex. 9F; Ex. 70A [route proceeds along building behind lamp post and parked panel van]; Ex. B1 [green arrow shows Salon entrance]); Ex. C1). Claimant said that, on the day of her accident, the area near the Salon entrance looked approximately as it is depicted in the photograph that is Exhibit C.
Ms. Andreyev did not have to step up onto a step or curb on her route to the Salon. Initially, she asserted that she had not walked past the Old Curb (where she later fell) on her way into the Salon. Later, however, she conceded that she had done so, adding, "but I didn't perceive it" (Tr., p. 500). She further agreed that the Old Curb is plainly visible in Exhibits B1, C1, 9, and 13 [top photo], but added that she walked closer to the buildings than the perspective depicted in Exhibit C1).
At about 1:30 or 2:00 p.m., Claimant left the Salon with her daughters through the same front door by which she had entered. Instead of walking back along the Old Walkway towards 9th Street as she had done earlier that morning, however, this time Ms. Andreyev walked east, or perpendicular to the storefront and straight out towards Little East Neck Road. She took about two steps forward across the width of the Old Walkway and then, on her third step, fell off the Old Curb and onto the Transitional Slab. The Old Curb was about six inches high. Claimant was about seven to ten feet from the building when she fell forward, at a slight angle, and flat onto her face.
Ms. Andreyev said that she did not trip. She said that she perceived "[o]ne big flat piece of gray concrete" in front of her which looked as it does in the top picture in Exhibit 13 (Tr., pp. 478, 480, 482). She said she fell because "I did not perceive a step coming out of the [S]alon, 'cause I didn't have any warning . There [were] no markings, no railings, no color changes, nothing" (Tr., p. 481).
Claimant testified on direct examination that she was "looking straight ahead" when she fell (Tr., p. 478). On cross-examination, she denied that she failed to see the step because she was not paying attention, or because she was reaching into her pocketbook looking for her car keys when she fell. She denied that she did not really have a recollection of where she was looking (Tr., pp. 506-507).
At her examination before trial, conducted on January 29, 2008 in connection with a related legal action, however, Ms. Andreyev's recollection failed her. She was asked about where she was looking as she walked out the Salon door, if she was looking into her pocketbook for her car keys, and if she recalled ever telling anyone that she was looking for her keys. Ms. Andreyev gave the same answer to each of the three questions; "As I sit here today, I do not recall" (see Tr., pp. 509-513).
Yet, at trial, Ms. Andreyev said that she remembered "exactly what happened" on the day of the accident, even though she could not recall having given those answers at her deposition (at the same time, she did not challenge that she did so) (Tr., pp. 510, 513-514). Claimant offered, by way of explanation for the discrepancies between her deposition and trial testimony, that she was likely nervous at her deposition and that she has had nothing but time, since then, to think about the events that happened on the day of her accident (Tr., p. 515). At trial, she asserted that she could "positively" state that she was not looking for her keys because it is her habit and routine before she leaves her home, work, or a store, to reach for her glasses and car keys first (Tr., p. 516).
Ms. Pantazis did not witness Claimant's fall and, thus, had no personal knowledge if Claimant looked at the sidewalk before the accident. Ms. Pantazis reviewed a portion of her deposition conducted on November 18, 2008, where she was a defendant in a companion litigation brought by Ms. Andreyev. She testified that, when Ms. Andreyev came into the Salon after she fell, Claimant said that "she was reaching into her pocketbook," "looking for her keys," "she wasn't paying attention to the ground, and she didn't see the step. And she fell, and she injured herself" (Tr., pp. 723, 729). Ms. Pantazis agreed that, elsewhere in that deposition, she did not say that Claimant related that she was not paying attention (Tr., pp. 739-741).
Mr. Zito has owned the Strip Mall for at least 50 years. Ms. Pantazis has owned and operated the Salon for 11 years. Neither was aware of anyone else falling at that location and Mr. Zito never received any complaints about the condition of the sidewalk. Claimant is suing Mr. Zito in a companion action in Supreme Court.
Mr. Andreyev immediately went to the Salon to assist his wife when he learned of her accident. Mr. Andreyev returned to the Salon the next morning at about 10:00 or 10:30 to take photographs. Exhibit 13 includes two of them. The top depicts the front door of the Salon. The bottom picture shows the view from the Old Curb in front of the Salon door looking out at the Transitional Slab and New Sidewalk beyond it. Mr. Andreyev noted, however, that the pictures were taken in the morning so that the east-facing storefront was bathed in light. While it was a clear day, Mr. Andreyev said that the accident occurred in the afternoon, when shadows covered much of the area depicted in the photographs. He did not take photographs in the afternoon to illustrate the shadows that would have prevailed at the time of the accident.
Later on the day after the accident, Mr. Andreyev also took other pictures of storefronts along Little East Neck Road, about two or three blocks south of the Salon (Exs. 15-18). The pictures show two other locations. One is another strip mall. The other is a free-standing hardware store. The scenes depicted are similar to the Strip Mall insofar as each has an elevated walkway in front of the stores that is separated from a lower sidewalk by a step or curb. The curbs at those locations are marked with yellow paint. On cross-examination, Mr. Andreyev agreed that he only took pictures of locations that had such yellow stripes. He also agreed, however, that there are dozens of stores between the Strip Mall and Sunrise Highway to the south, and he did not know how many of them might have similar curbs, but without yellow paint on them. In addition, none of the stores depicted are on the same (west) side of Little East Neck Road as the Strip Mall and, thus, do not show how shadows might fall at the Salon.
LAW
The State of New York has an absolute, nondelegable duty to those using its roadways to design, construct, and maintain them in a reasonably safe condition, taking into account such factors as existing traffic conditions, terrain and physical practicality (Friedman v State of New York, 67 NY2d 271, 283 [1986]; Gutelle v City of New York, 55 NY2d 794[1981]; Weiss v Fote, 7 NY2d 579, 584 [1960]). The State, however, is not an insurer of the safety of its roadways and the mere occurrence of an accident does not create liability (Tomassi v Town of Union, 46 NY2d 91, 97 [1978]; Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [3d Dept 1979], affd 51 NY2d 892 [1980]). Claimant has the burden of establishing that the State was negligent and that its negligence was a substantial factor in causing Claimant's accident and injuries (see Kampff v Ulster Sanitation, 280 AD2d 797 [3d Dept 2001]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]).
Where the alleged negligence arises out of a highway planning decision requiring expert judgment or the exercise of discretion, the State is entitled to a qualified immunity from liability unless the proof establishes that the decision evolved without adequate study, was plainly inadequate or there was no reasonable basis for the plan (see Affleck v Buckley, 96 NY2d 553, 556 [2001]; Friedman v State of New York, supra; Alexander v Eldred, 63 NY2d 460, 466 [1984]; Weiss v Fote, supra at 586, 589). "There are 'strong policy considerations' behind this doctrine, and it should therefore not be 'lightly discounted' " (Smith v State of New York, 191 Misc 2d 553, 567 [Ct Cl 2002], quoting Friedman, supra at 285). The qualified immunity extends to planning decisions with respect to sidewalks (see Urquhart v City of Ogdensburg, 91 NY 67, 71 [1883]). "This rule enunciated in Weiss requires proof beyond that necessary to establish ordinary negligence … to place liability on the State for a decision by a planning body, the Court of Appeals in Weiss required proof, not only that a reasonable [person] would have acted otherwise, but that the State used no reason at all" (Matter of Hall v State of New York, 106 Misc 2d 860, 862-863 [Ct Cl 1981]). It applies whenever a governmental planning body "has entertained and passed on the very same question of risk as would ordinarily go to the jury'" (Weiss v Fote, supra at 588; see Turturro v City of New York, 77 AD3d 732, 735 [2d Dept 2010]).
DISCUSSION
Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the State is immune from liability in this Claim under the doctrine of qualified immunity. It further finds that Claimant failed to meet her burden, and did not establish by a preponderance of the credible evidence her claim against the State.
Witness Credibility
Each of the witnesses provided generally sincere and forthright testimony. The two experts, Mr. Zalben and Mr. Gass, both were knowledgeable and informative. On balance, however, the Court found the testimony of Mr. Gass, together with that of Messrs. Pelc and Drechsler, to be more persuasive than that of Mr. Zalben (see Redcross v State of New York, 241 AD2d 787, 790 [3d Dept 1997], lv denied 91 NY2d 801 [1997]). A great deal of testimony was elicited concerning handicapped accessibility requirements under: the DOT HDM; ADA; UFAS; the American Society for Testing and Materials ("ASTM") (see Ex. 57 [ASTM Standard Practice for Safe Walking Surfaces]); the American National Standards Institute ("ANSI"); and the US Department of Commerce National Bureau of Standards Guidelines for Stair Safety issued in May, 1979 ("NBS") (see Ex. 59).
The parties agreed that the DOT HDM and ADA applied to the Project. The State's witnesses did not, however, rely upon and/or recognize as authoritative ASTM, ANSI, or the NBS. To the Court's mind, Mr. Zalben failed to rebut Mr. Pelc's and Mr. Gass' assertions that those guides were inapplicable to the Project. For example, he did not know if ASTM applied to the State, but conceded that its standards are not directly referenced in the DOT HDM (Tr., pp. 589-590, 625). In fact, Mr. Zalben did not "know if New York State is bound by any guidelines" (Tr., p. 590). The Court's confidence in Mr. Zalben's opinions is undermined because so many of them relied, either in whole or in part, upon manuals and standards whose authoritativeness was not established at trial.
Moreover, the Court found Claimant's assertions at trial that she remembered "exactly what happened" as she left the Salon to be unworthy of credit. Her unequivocal statements that she was not distracted, or looking for her keys, in the moment immediately preceding her fall are difficult to reconcile with her inability to recall those same important facts at her deposition nearly five years earlier. Her proffered explanation, that she was nervous at her deposition, but now seemingly has regained both her composure and her recollection because she has had time to reflect on events during the intervening years, is unpersuasive. To the Court's mind, giving testimony at an actual trial might be expected to provoke greater anxiety in a claimant than being examined at a deposition. As for Claimant's recovered recollections, in the Court's view it is at least as likely that Claimant simply convinced herself over the course of the past five years (however sincerely) that they are true, as it is that she actually now possesses precise recollections of matters she could not remember when she was deposed. The testimony of Ms. Pantazis further calls into question the narrative Claimant adopted at trial. To be sure, Ms. Pantazis posed her own challenges as a witness, at times volatile, hostile, argumentative, and inaccurate with regard to certain peripheral facts, like whether Claimant or her daughters were having their hair styled on the day of the accident. Nevertheless, she was unwavering in her testimony that, right after her accident, Ms. Andreyev said she was looking in her pocketbook for her keys and the Court credits that portion of her testimony. In that regard, the Court is also unable to credit Ms. Andreyev's account that, in effect, her anxiety at her deposition caused her to forget, not only if she was searching for her keys when she fell, but also that her custom and habit of procuring them before leaving any store rendered such a distraction an impossibility.
Motion to Strike Defense
As a preliminary matter, the Court denies Claimant's motion to strike the State's defense of qualified immunity for its planning, design and construction decisions on the theory that it was not pleaded, no documents were exchanged that supported the allegation, and it was raised for the first time at trial. Claimant's application was first made at a pretrial telephone conference on August 13, 2013 and renewed at the end of Defendant's case, at which time the Court reserved its decision.
Court of Claims Act § 11(c) and CPLR 3211(e) list various defenses that are waived unless Defendant raises them either in its Answer, or in a previously made motion to dismiss (see Herrera v State of New York, UID No. 2013-049-113 [Ct Cl, Weinstein, J., Nov. 20, 2013]). The Court notes that qualified immunity is not among those enumerated defenses. Moreover, where Claimant has had "a full and fair opportunity to argue the merits" of the defense, the State's failure to assert it in its Answer does not constitute a waiver, provided there has been no surprise or prejudice to Claimant (Murray v City of New York, 43 NY2d 400, 404-405 [1977]; Kirilescu v American Home Prods. Corp., 278 AD2d 457, 457-458 [2d Dept 2000], lv denied 96 NY2d 933 [2001]). In fact, the Court, acting sua sponte, may conform the pleadings to the evidence in such cases, and may do so even after trial, where warranted (see Murray v City of New York, supra at 406; Matter of Denton, 6 AD3d 531, 532-533 [2d Dept 2004], lv denied 5 NY3d 714 [2005]; Cave v Kollar, 2 AD3d 386, 388 [2d Dept 2003]; CPLR 3025[c]).
Here, the Court determines that no such prejudice or surprise has been shown. Indeed, in "the area of highway safety … it has long been the settled view … that courts should not be permitted to review determinations of governmental planning bodies under the guise of allowing them to be challenged in negligence suits" (Weiss v Fote, supra at 588). Thus, Claimant should have been aware from the outset that allegations of negligence in planning, designing, and constructing the Project, by definition, implicate the State's qualified immunity and that those determinations are not subject to second-guessing by the Court "absent some indication that due care was not exercised in the preparation of the design or that no reasonable official could have adopted it" (id. at 586: see Garris v State of New York, UID No. 2012-031-505 [Ct Cl, Minarik, J., Sept. 24, 2012]; Davies v State of New York, UID No. 2009-029-024 [Ct Cl, Mignano, J., Apr. 16, 2009]; Libous v State of New York, UID No. 2003-032-135 [Ct Cl, Hard, J., Dec. 31, 2003]). Moreover, in this instance, Claimant's counsel availed himself of the opportunity at trial to examine the witnesses about how the Project was planned, designed and built and the question of the State's qualified immunity was fully briefed by the parties after the trial (see Murray v City of New York, supra at 406). For the foregoing reasons, the Court, sua sponte, deems the pleadings conformed to the evidence in this Claim to include the State's defense of qualified immunity.
Qualified Immunity
As to the merits of the defense, the Court determines that the State's determinations with regard to planning, designing and constructing this Project are protected by the qualified immunity that applies to such decisions. The Design Plans themselves were developed according to a deliberative process. Several drafts were circulated, after which the Design Plans were accepted both by Suffolk County and the State. The As-Built Plans also were approved.
Mr. Pelc and Mr. Gass each explained that the Plans clearly direct that the Old Parking Area be replaced with concrete pavement. They explained that the word "ASPHALT" written on the Plans (see Ex. 24) denominates the existing material that covered the Old Parking Area, just as the words "Concrete Sidewalk" above it identify the composition of the Old Walkway. The legend key in Exhibit 26 prescribes that any proposed concrete pavement is to be indicated on the Plans by a stipple pattern and the witnesses noted that those same small dots cover the areas where both the Transitional Slab and the New Sidewalk were to be built. Mr. Gass further noted that the legend for asphalt is not the stipple pattern used for concrete, but, rather, hash or slash marks, and the Plans include no such marks in the area where the Transitional Slab was built. Mr. Zalben, by contrast, seemed confused by the Plans and the key and was unpersuasive when he asserted that the Plans call for asphalt to be used in the area of the Transitional Slab (Tr., pp. 684, 686). The Court credits the State witnesses and finds that the Plans call for the Transitional Slab to be made of concrete.
Mr. Pelc explained that the reason he chose concrete for the Transitional Slab was because he "thought concrete was an upgrade … Asphalt was necessary for parking, but concrete is a finer product. It would be a better fit … [C]oncrete is the natural choice" (Tr., pp. 261-262). Mr. Zalben agreed that concrete is most commonly used for sidewalk areas (Tr., p. 685). The DOT HDM, likewise, provides that "[s]idewalks are generally constructed of cement concrete," although designers also "should consider the character of the surrounding area, need, anticipated uses, durability, safety and cost" and, moreover, "handicapped accessibility must be considered when selecting walkway materials" (Ex. 55, § 18.06.08, pp. 18-13, 18-15). Mr. Pelc and Mr. Drechsler said that the Plans direct, by default, that plain, gray concrete be used to build the Transitional Slab because the use of some other shade or color would have had to have been specified. None was.
In Mr. Zalben's opinion, the above-referenced provision of the DOT HDM was violated because contrasting colors for the surfaces of differing heights should have been considered in order to provide visual cues to people with low vision. He could not cite to any other reference in the DOT HDM, however, for the proposition that contrasting colors are required for surfaces of differing heights (Tr., p. 630). By contrast, Mr. Gass said that Section 18.06.08 of the DOT HDM does not require contrasting colors. Rather, it merely allows, as a choice, the use of different materials (Tr., pp. 837-838). The Court concludes that the cited provision of the DOT HDM does not mandate the use of multiple colors.
Mr. Pelc said that the Plans provide generic guidance for grading sidewalk areas to a distance of about seven feet back from the curbing directly adjacent to the roadway (i.e., areas like the New Sidewalk) (see Ex. 61). They do not provide specific design guidance, however, for areas beyond the highway right-of-way. Accordingly, the Plans do not include grading instructions for the Transitional Slab, or how it should meet or attach to the Old Walkway, and whether or not the Old Curb should be retained or eliminated. Rather, Mr. Pelc and Mr. Drechsler each said that, in such cases, the on-site field engineer would make such determinations as conditions dictated. Mr. Drechsler said typically that would be him in his role as EIC, although he had no independent recollection in this instance. Later, he did agree, however, that he decided to leave the Old Curb in front of the Salon. In any event, Mr. Pelc did not see any significant grading problems at the place where the accident occurred.
The Plans reflect the delegation described by Mr. Pelc and Mr. Drechsler. For example, Exhibit 32 includes a portion of the Plans that contains several general notes, requirements, and instructions for the Project's EIC and contractors. Paragraph 4 states that:
THE CONTRACTOR'S ATTENTION IS DIRECTED TO THE FACT THAT DUE TO THE NATURE OF RECONSTRUCTION PROJECTS, THE EXACT EXTENT OF RECONSTRUCTION WORK CANNOT ALWAYS BE ACCURATELY DETERMINED PRIOR TO THE COMMENCEMENT OF WORK. THESE [CONTRACT] DOCUMENTS HAVE BEEN PREPARED BASED ON FIELD INSPECTION AND OTHER AVAILABLE INFORMATION. ACTUAL FIELD CONDITIONS MAY REQUIRE MODIFICATIONS TO CONSTRUCTION DETAILS AND WORK QUANTITIES. THE CONTRACTOR SHALL PERFORM THE WORK IN ACCORDANCE WITH FIELD CONDITIONS.
Mr. Pelc explained that "[b]asically, it's saying that the contractor may have to make slight modifications to make [the Plans] work in the field" and said that grading decisions with respect to the Transitional Slab "can fall in that category" (Tr., pp. 220-222).
Similarly, paragraph 15 of Exhibit 32 states, in part, that : "ALL GRADING SHALL BE AS SHOWN ON THE PLANS, PROFILES AND SECTIONS OR AS DIRECTED BY THE ENGINEER" (emphasis supplied). Mr. Pelc explained that the foregoing meant that "if anything has to change, or anything doesn't look right[,] the engineer can determine to make a change" (Tr., p. 222).
Likewise, Paragraph 11 of Exhibit 32 states, in part: "THE PLANS SPECIFICALLY CALL FOR THE REMOVAL OF EXISTING CURBS AT VARIOUS LOCATIONS. OTHER EXISTING CURBS ARE TO BE REMOVED IN AREAS OF OBVIOUS CONFLICT WITH THE PROPOSED WORK OR WHERE ORDERED BY THE ENGINEER" (emphasis supplied).
Finally, Mr. Drechsler said that the As-Built Plans indicate that the work at the Strip Mall was done in accordance with the Design Plans and that there were no modifications to the Design Plans with respect to the Transitional Slab (see Ex. 24; Tr., pp. 349, 365). Mr. Pelc agreed that the work was done as he envisioned it, concurred with the decisions taken by the field engineer, and had no objection to the manner in which the Transitional Slab was built and how it met the Old Walkway. Mr. Gass, likewise, opined that the Transitional Slab built by Mr. Drechsler is as he would have envisioned it by looking at the plans. In his opinion, there is nothing unusual about the way the Project was constructed. He further opined that the Project was built to the standards and was acceptable at that time, and nothing very different would be done today.
The Court credits the testimony of Mr. Pelc and Mr. Gass that the Strip Mall was handicapped accessible before the Project and remained so afterwards. Mr. Gass agreed that the DOT HDM commands that all reasonable steps be taken to provide for the safety of pedestrians (Tr., p. 961). Mr. Pelc noted, however, that the very route taken by Claimant on the day of her accident (i.e., approaching the Old Walkway from the north) provided an accessible route to the stores for people in wheelchairs, one which existed before the Project was built (Tr., pp. 265, 272). Mr. Gass agreed, adding that the route complies with both the ADA and UFAS and that "you don't have to provide more than one" accessible route (Tr., pp. 843-844). He further opined that the Old Walkway, via the Old Walkway Ramp, provides a safe means of access to the Salon (Tr., p. 859).
In fact, Mr. Gass opined, and the Court agrees, that the Project actually made the Old Walkway "substantially more accessible" by providing an additional accessible route where none had existed so that now people could traverse the Transitional Slab, in most places, without having to negotiate the Old Curb (Tr., pp. 844-845, 1043-1044). For example, a person in a wheelchair traveling north to south from 10th Street now can visit the Salon by proceeding south, past the planter visible in Exhibit B1, and then by cutting across the Transitional Slab and going up onto the Old Walkway near the Old Walkway Ramp (see Ex. C2; Tr., pp. 910, 912). Mr. Zalben agreed that none of the photographs taken before the Project depict an access ramp so that wheelchairs could surmount the Old Curb when traveling from the Old Parking Area to the Old Walkway (Tr., pp. 657-659).
With respect to the area in front of the Salon between the New Sidewalk and the Old Walkway, Mr. Gass said that three main options were available: the Transitional Slab that was built; stairs; or a ramp (Tr., p. 821). He further said that, while the ADA "requires universal access," "it was really a design choice" as far as how that goal is to be achieved (Tr., p. 835). He also noted that there can be conflicts between the preferences of vision impaired people (who generally prefer vertical edges they can sense) and mobility impaired individuals (who want flush transitions) (Tr., pp. 833-834). Claimant argues that the Old Curb in front of the Salon functioned as a single step. Mr. Zalben said that the standard of care is that "[y]ou don't use [single step risers]. Period" and that, if they must be used, ameliorative steps must be taken (Tr., pp. 601-602).
With respect to stairs, Mr. Zalben contradicted himself about whether it was even possible to build them in front of the Salon. At one point, he said that it was, although he "never actually worked out the dimensions" (Tr., p. 577). Then, he conceded that it "probably" would not be possible to do so (Tr., p. 581). Still later, he seemed to change his mind again, suggesting that stairs could be put there, but that construction problems would be created for the remainder of the Transitional Slab (Tr., pp. 676-677). Mr. Zalben also pointed to a nearby parcel on the southwest corner of Little East Neck Road and 9th Street, about 200 feet (or one block) to the south of the Strip Mall (the "Fontana Property") (see Ex. 24 [plan shows building with notation, Salvatore and Marie Fontana]; Ex. 45) to illustrate that stairs should have been considered instead of the Transitional Slab (Tr., pp. 702, 704-705; see Exs. 24, 29).
Mr. Gass agreed that he would try to avoid placing a single transition step in the middle of a sidewalk, but in order to avoid a possible barrier to universal access, not necessarily to avoid a tripping hazard (Tr., pp. 975-976). In any event, he noted that Mr. Drechsler did not propose or build the Old Curb. Rather, it existed prior to construction and he merely "left an existing element in place" (Tr., pp. 984-985). Moreover, Mr. Gass said that neither the DOT HDM, nor the Plans, require the construction of steps at the Salon, and that DOT generally tries to avoid them (Tr., pp. 826, 830). He also explained, in detail, why there was not enough room in the area of the Salon to build three steps in conformity with the DOT HDM without creating drainage issues for the remnant of the Transitional Slab that would have been left (Tr., pp. 823-826).
He explained that the vertical difference between the top of the Old Curb and the top of the New Curb is about 20 inches. Three six-inch high steps would consume 18 inches of that height differential (6 inches X 3 steps = 18 inches). That would leave, then, only a two-inch vertical difference between the bottom of the lowest step and the top of the New Curb for a new transitional space (20 inches [original vertical difference between old and new curbs] - 18 inches [height of 3 steps] = 2 inches). The Transitional Slab is 99 ½ inches wide with a slope of 10.3% [see Ex. 71]). Mr. Gass said that surfaces normally need a slope of about 2% in order to drain properly, which is the equivalent of 1/8th of an inch per foot. Thus, he concluded that there was not enough room and that a new transitional space, as well as the New Sidewalk, would not drain properly (Tr., pp. 823-826, 1012). On cross-examination, however, Mr. Gass did agree that the riser heights and tread lengths both could be varied in order to create proper drainage (Tr., pp. 1013-1014).
Mr. Pelc and Mr. Gass each also thought that the Fontana Property is on higher ground than the Salon (Tr., pp. 279, 281-282 [ "considerably higher" (Pelc)]; Tr., p. 870 ["kind of like a little … volcano" (Gass)]). Thus, the two properties required different design treatments. Mr. Pelc explained that the dedication line for the new curb and new sidewalk to be built at the Fontana Property would have intersected with the slope of an existing walkway to create a sharp, vertical drop of about one foot (see Ex. 29 [Mr. Pelc's line in orange grease pencil show gap in elevation between existing walk (solid line) and the proposed curb and sidewalk (dotted lines). Thus, a set of three stairs needed to be built into the existing retaining wall at the Fontana Property in order to provide a level transition from the store to the new sidewalk area. Mr. Pelc said that no similar situation existed in front of the Salon. Mr. Gass said that, unlike the Strip Mall, it was possible to install stairs at the Fontana Property along with a transitional area that had a sufficient slope to shed water. Messrs. Pelc and Gass each said it was preferable not to disturb existing buildings or features on private property in order to minimize any possible structural impact, like exposing unfinished portions of the foundations of the buildings in the Strip Mall (Tr., pp. 259, 266, 823, 1026). In any event, the fact that the Plans for the Strip Mall differ from the decisions taken with respect to the Fontana Property alone does not demonstrate that it was the "result of inadequate study, or was otherwise arbitrary or unreasonable" (Light v State of New York, 250 AD2d 988, 990 [3d Dept 1998], lv denied 92 NY2d 807 [1998]).
The DOT HDM provides that, when less than three stair treads are proposed, "a ramp is preferred and should be provided if possible" (Ex. 55, § 18.07.02, p. 18-26). Mr. Zalben said that a ramp could have been, and should have been, built (Tr., pp. 546, 552, 577). In his view, a single step is inherently dangerous, should have been avoided, and was the cause of Claimant's injury (Tr., pp. 528-529, 550-551). Mr. Zalben said, that there was not quite enough space to construct a ramp that went straight out, or perpendicular, from the building, but that there was plenty of room to build a ramp that ran parallel to the building (Tr., pp. 552-553). He thought that either a ramp (even one without handrails) or stairs would provide a visual cue that there was a height differential (Tr., pp. 557, 581). Mr. Pelc assumed that he did not include a ramp in front of the Salon because he did not think one was needed (Tr., p. 272). Mr. Gass agreed that it was possible to build a parallel ramp, but that none was required by the DOT HDM (Tr., p. 840; see Ex. 55, § 18.07.02, p. 18-26). He further thought that a ramp would create other safety issues and would have increased the cost of the work (Tr., pp. 1015-1016).
As for handrails, Mr. Zalben conceded that there is nothing in the DOT HDM that requires one on a single step (Tr., pp. 621-622). He maintained, however, that both the ADA and UFAS required a handrail in the vicinity of the Old Walkway Ramp because its rise exceeded six inches in a few spots by 1/8th to ½ of an inch (Tr., pp. 558-559, 647-651; see Ex. 70 [area to right of flag]; Ex. C2 [area in lower right portion of red circle]; Ex. 55, §18.07.02, pp. 18-25, 18-26). By contrast, Mr. Gass found a single six-inch segment of the Old Walkway Ramp where the rise measured 6 1/8th inches (Tr., p. 845; see Ex. C2). In his view, that differential is within the acceptable construction tolerance for concrete and that the ramp remained "functionally accessible" (Tr., p. 857). Thus, he opined that the area depicted within the red circle in Exhibit C2 is in compliance with the DOT HDM (Tr., p. 874).
In any event, Mr. Zalben and Mr. Gass each said that the minimum required length of any such handrail would be 12 inches beyond any area with a rise over 6 inches high (Tr., pp. 654, 860-861). Thus, Mr. Gass noted, the minimum required length of this odd looking element would have been no more than two feet, and even if it was extended along the entirety of the Old Walkway Ramp, it still would only be four or five feet long (Tr., pp. 860-861). Mr. Zalben argued that the handrail would have provided a visual cue to Claimant that there was a height differential in front of the Salon (Tr., p. 667). Mr. Gass disagreed, noting that the closest end of such handrail would have been at least 12 feet, and as much as 17 feet, away from the entrance to the Salon (Tr., pp. 847, 873-874, 1038-1041). Mr. Zalben said that the Old Curb is only 5-7/8ths inches high directly in front of the door to the Salon (Tr., p. 647). Thus, no handrail is required there.
Citing ASTM and NBS guidelines, Mr. Zalben also opined that it was a departure from good and accepted standards not to have provided some kind of visual cue that a height differential existed in front of the Salon, such as colored paint on the top face of the Old Curb, and that the failure to do so was another cause of Claimant's injury (Tr., pp. 581-582; see Ex. 59, § 2.5.6). He conceded, however, that he did not see any requirement in the DOT HDM that paint be placed on single steps or risers (Tr., p. 626). Mr. Pelc and Mr. Gass each said there was no such requirement to mark or delineate a single step or curb (Tr., pp. 267, 276, 830-832). Mr. Gass agreed that it would have been feasible to paint a yellow stripe on the edge of the Old Curb, but said that vertical edges generally are not delineated, particularly those that are outdoors (Tr., p. 834). He thought it was unnecessary and would not have provided an obvious visual cue to a pedestrian that a step was there, further noting that curbs are not striped throughout the highway system (Tr., pp. 1059-1060, 1070-1071, 1084-1090).
The State is entitled to qualified immunity from liability for its planning, design and construction decisions made in connection with the Project. In the Court's view, the Plans reflect due care in their formulation. Neither were they plainly inadequate, nor were they made without a reasonable basis. The State's witnesses provided an adequate rationale for the various decisions that were taken. The Court cannot conclude that no reasonable official could have adopted the Plans. That being the case, those decisions are not subject to second-guessing by the Court.
Moreover, the qualified immunity extends to decisions made by Defendant's representatives on the Project site, which the Court finds to be within the proper exercise of the State's discretion. The Plans contain a delegation that was both consciously and clearly made so that the State's agents could respond to "actual field conditions" they might encounter. Specifically, the treatment of existing curbs was left to the discretion of the engineer. To the Court's mind, this planning decision was altogether reasonable and reflects the common sense proposition that, at a certain granular level, the implementation of the Plans necessarily must rely upon the experience and judgment of the engineers to respond to actual conditions on the ground.
Case law is in accord. In fact, the qualified immunity for design and planning decisions was held to apply in a case where a structure at a ski facility was built without blueprints at all, but rather based solely upon a plan derived from experience (Simoneau v State of New York, 1996 WL 34391976 [Ct Cl], affd on other grounds 248 AD2d 865 [3d Dept 1998]). In another case, the engineer-in-charge failed to attach the reflective tubing delineators on a bridge structure prescribed by the plans and, further, placed the ones he chose to utilize instead at a different height than as set forth in the plans. Nevertheless, the Court determined that the decision was entitled to the benefit of the qualified immunity defense (Wadsworth v State of New York, 7 Misc 3d 1027[A] [Ct Cl 2005]). In a third case, qualified immunity was applied to a highway reconstruction plan that expressly deferred to the professional engineer's judgment as to which trees should be removed within the right-of-way (Guyder v State of New York, UID No. 2003-013-510 [Ct Cl, Patti, J., Dec. 31, 2003]).
Here, the Court determines that both the delegation to the field representatives contained in the Plans with respect to certain grading decisions and the treatment of existing curbs, as well as the actual decision taken in exercising that discretion to maintain as consistent a slope as possible along the Transitional Slab, reflect due care on the part of Defendant. They are not plainly inadequate. They were not undertaken without a reasonable basis. Again, the Court cannot conclude that no reasonable official could have made those decisions and, therefore, they are not subject to second-guessing by the Court. Moreover, Defendant, by adopting the Plans, including the delegations contained therein, entertained and passed on the very same question of risk that is the basis for this Claim.
The extensive testimony concerning handicapped accessibility requirements does not alter the Court's conclusion that the Plans and the State's determinations are entitled to the benefit of the qualified immunity. In the Court's view, it was not established that stairs, ramps or handrails were required. Indeed, it is not clear that stairs even are practicable in front of the Strip Mall. The Fontana Property is not comparable to the Strip Mall. The Court rejects the view proffered by Claimant that a railing in the vicinity of the Old Walkway Ramp would provide a visual cue regarding the existence of the Old Curb in front of the Salon. Mr. Zalben's testimony offered alternatives as to how he would have designed the Project, but "something more than a mere choice between conflicting opinions of experts is required" before qualified immunity may be stripped from the State and liability imposed upon Defendant for its highway planning, design and construction decisions (Weiss v Fote, supra at 588; see Affleck v Buckley, supra at 557). Like a jury's verdict, the views of Mr. Zalben, no matter how highly they might be regarded, are "neither sacrosanct nor preferable to the judgment of" the State's planners and construction personnel on this Project (Weiss v Fote, supra at 588-589). Mr. Zalben testified that good and accepted practice requires designers to include in the plans everything that is envisioned to be built as a matter of "risk avoidance," because you "don't leave anything for chance" (Tr., pp. 602-603). The Court disagrees. For the reasons already stated, those determinations were within the delegation to the engineer contemplated by the Plans and the qualified immunity defense applies to them.
Moreover, Claimant did not testify that she had either impaired vision or diminished mobility, nor did she appear so upon the Court's observation, and standards to protect persons with such conditions "cannot be transformed into a sword for [the benefit of] another not subject to its protection" (Wisner v United States, 154 FRD 39, 44 [NDNY 1994]).
No Negligence
Assuming, arguendo, that the State was not entitled to qualified immunity with respect to its design, planning, and construction decisions in connection with the Project, the Court finds that Claimant failed to establish by a preponderance of the credible evidence that the State was negligent in connection with her Claim. Claimant's reliance on Saretsky v 85 Kenmare Realty Corp. (85 AD3d 89 [1st Dept 2011]) is unavailing. There, the First Department found triable issues of fact that precluded granting Defendant summary judgment when the plaintiff fell from a raised walkway.
Here, by contrast, the trial of the Claim has been held and, upon the review of that record, and its assessment of the credibility of the witnesses discussed above, the Court concludes that the Old Curb was not a dangerous condition. The day of the accident was beautiful and sunny. The record does not reflect the presence of any debris on the Walkway. The six-inch height of the Old Curb was not itself inherently dangerous (see Colao v Community Programs Ctr. of Long Is., Inc., 29 AD3d 723, 724 [2d Dept 2006]; Capasso v Village of Goshen, 84 AD3d 998, 1000 [2d Dept 2011]). Moreover, the Old Curb was an open and obvious condition. Claimant agreed that it was plainly visible in the photographic exhibits, although she failed to perceive it at the time. Moreover, the location of the Old Curb between the Old Walkway and the Transitional Slab, while perhaps not ideal, is not unusual. In fact, the very next day, Mr. Andreyev was able to find ready examples of similar step configurations within a few blocks of the Strip Mall and Mr. Pelc agreed that multiple other businesses in the area had similar steps, or raised walkways, that created transitional areas that connected to sidewalks. Moreover, Mr. Zito and Ms. Pantazis each testified that they were not aware of any other similar accidents at the location where Claimant fell. The Project was completed six years before Claimant's fall and the record indicates that conditions at that location did not change appreciably during that period. Thus, the absence of similar accidents under such conditions is some proof that the condition in question is not dangerous (Orlick v Granit Hotel & Country Club, 30 NY2d 246, 250 [1972]; Gayle v City of New York, 256 AD2d 541, 542-543 [2d Dept 1998]). Given the height of the Old Curb, as well as the time, place and other circumstances attendant to Claimant's accident, the Court finds that the Old Curb was not a dangerous condition (see Trincere v County of Suffolk, 90 NY2d 976, 978 [1997]).
Further, the Court determines that Claimant failed to establish that the Old Curb was a substantial factor in her accident. The "open and obvious, not inherently dangerous and readily observable" condition of the Old Curb undermines Claimant's contention that it "created optical confusion, or that its placement rendered it likely to be easily overlooked" (Phillips v Paco Lafayette LLC, 106 AD3d 631, 632 [1st Dept 2013]). Rather, the Court concludes that Ms. Andreyev was not paying attention to her surroundings when she walked past the Old Curb on her way to the Salon. Claimant said that she was walking close to the buildings and looking for the entrance to the Salon. Thus, she did not see the Old Curb even though it was plainly visible. As noted above, the Court rejects as incredible her testimony that she was not distracted and was not looking for her keys when she left the Salon. The discrepancies in her testimony suggest that, at most, she really does not know what she was doing immediately prior to her fall. At the same time, her failure to see what was there to be seen when she walked to the Salon earlier that day, coupled with her inability to recall events at her deposition and Ms. Pantazis' trial testimony, indicates that it is just as likely that she was distracted when she fell because she was looking in her pocketbook for her keys. "Where the facts proven show that there are several possible causes of an injury, for one or more of which [Defendant] was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, [Claimant] cannot have a recovery since [she] failed to prove that the negligence of [the State] caused the injury" (Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; see Bernstein v City of New York, 69 NY2d 1020, 1021 [1987]).
CONCLUSION
The Court would be remiss if it did not acknowledge the advocacy of counsel for both parties in this matter. The comprehensive and exhaustive efforts of Claimant's counsel notwithstanding, however, based on all the foregoing, the Court finds that the State is entitled to qualified immunity in this action and that Claimant failed to establish her case by a preponderance of the credible evidence.
All motions upon which the Court reserved decision at trial are hereby denied.
All objections upon which the Court reserved determination at trial are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
September 19, 2014
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims