Opinion
# 2019-050-014 Claim No. 126749 Motion No. M-92558
04-08-2019
MELISSA MEES v. THE STATE OF NEW YORK
Rosenberg & Gluck, LLP By: Svetlana Walker, Esq. Hon. Letitia James, Attorney General By: Robert E. Morelli, Assistant Attorney General
Synopsis
Defendant's motion for summary judgment is denied. The claim alleges that claimant was injured at Robert Moses State Park when his right leg was badly cut by a buried broken metal fence post. Questions of fact remain regarding whether the State created the dangerous condition which allegedly caused claimant's injury, or whether it had notice - despite the metal post being entirely covered by sand when claimant was injured - due to the recurring nature of the hazard.
Case information
| UID: | 2019-050-014 |
| Claimant(s): | MELISSA MEES |
| Claimant short name: | MEES |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126749 |
| Motion number(s): | M-92558 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Rosenberg & Gluck, LLP By: Svetlana Walker, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Robert E. Morelli, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 8, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Defendant, the State of New York, moves pursuant to CPLR 3212 for an order granting summary judgment and dismissing the claim. Claimant, Melissa Mees, opposes the motion.
The claim herein alleges that on July 6, 2015 at approximately 6:00 p.m., claimant was seriously injured at Robert Moses State Park (RMSP) while playing football. The claim states that as she slid in the sand to catch the ball, claimant's right leg was badly cut by a broken off metal fence post that was hidden under the sand. Defendant argues that as the metal fence post was completely hidden under the sand, the State had no notice of the allegedly dangerous condition.
Claimant testified at her deposition that on the day of her accident she had been playing football with her mother and daughters in the Field 2 "emergency lane" for about an hour when the accident occurred. She stated that the entire piece of the fence post, which was green and approximately 3 inches wide and 16.5 inches long, was under the sand; she "didn't see it at all," but it "wasn't [buried] very deep."
Claimant's mother, Paulette Mees, testified similarly, stating that the metal post was not visible above the surface of the sand. She stated that she did not see the fence post prior to the incident. She and claimant's fiancé, Joseph Rossi, testified that they had returned to the scene the next day and found more metal posts in the sand that were similar to the one that injured claimant. They took photographs at Field 2 "in the immediate area" where claimant was injured of more posts of the same kind and green color as that which injured claimant and testified that "every so often, there was another one." Mr. Rossi testified to finding several other green, metal posts in the sand in the immediate area of his fiancé's accident and to having taken photographs of three (defendant's exhibits A, B and C).
The three witnesses who were employed by the State on the day of the incident testified on behalf of the State. Timothy Byrne, Park Manager 3, testified at his deposition that he had overall responsibility for operation, maintenance and staff at three state parks, including RMSP. He had been employed full-time by the State in the parks department since 1986. He explained that fences are used to protect the dunes and control the drifting of sand. The fences are made of four-foot tall wooden slats that are latched to metal T-posts for stability. The metal posts are buried at least two feet below the surface of the sand and are five or six feet long. Mr. Byrne stated that the metal post which injured claimant was a U-post and that in all his years of employment the State had used T-posts rather than U-posts, except for a year or two 20 to 25 years ago. He testified that fencing was seasonally installed and removed each year to demarcate the emergency lane and that when taking down a fence, parks department employees typically removed the metal posts by hand using a tool. The posts were typically installed at approximately nine-foot intervals. He was not aware of any prior complaints regarding broken metal posts buried in the sand but did acknowledge that log books from the summer on 2015 and previous summers had notes about other broken metal post remnants being found and needing removal from the beach. Mr. Byrne testified that Hurricane Sandy had swept away significant areas of fencing and the remaining stakes had to be removed from the beach.
John Cumberland, Park Manager 1, testified that the entire emergency lane and area around claimant's accident was searched the next day using pitchforks to dig beneath the sand, but no other metal posts were found. He stated that U-posts of the type that allegedly injured claimant were not used in any of his 30 years with the parks department. Mr. Cumberland testified that T-posts are used because they are much more durable than U-posts, that they "never break" and are typically placed every nine feet or so along a fence.
Bradley Cameron, Park Supervisor 2, testified that he had been employed by the State since June 2008 in several positions within the parks department. He stated that he had pulled out at least 10 - 20 broken, rusted metal T-posts over the years at RMSP and that U-posts were never used at RMSP in his experience. He did recall having seen "less than 10 U-posts" over the years "in the deep, deep, deep parts of the dunes" almost half a mile away from Field 2. He stated that the posts "were green at some point" but had become old and rusted.
All three State employees testified that various logbooks created by RMSP employees between 2011 and 2015 refer to the removal of broken metal posts or fence stakes but also stated that generally no report would be created if such a hazard were found. Rather, it would just be removed as soon as possible. An employee note, dated June 9, 2012, reads, "[c]heck ramps for broken, dangerous fence. Seems to be more of an issue in the west." A September 7, 2013 logbook entry reads, "dig out rusted fence post on west beach. A cone is covering it." Mr. Cameron stated that the reference was to Field 2 and that he could not say whether the post had been removed. He also testified that after Hurricane Sandy in October 2012 "a lot of the beach eroded, and it brought up age old fence stakes that we spent a good amount of time taking out and blocking off." A RMSP logbook entry on June 24, 2014 reads: "pulled up a broken piece of T-bar with spade attached."
Upon a motion for summary judgment, the initial burden is on the moving party to come forward with proof in admissible form showing its entitlement to judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). When considering a motion for summary judgment, the initial test is whether the movant established prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). "Once this showing has been made . . . the burden shifts to the party opposing the motion . . . to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial" (Sonne v Bd. of Trustees of Vil. of Suffern, 67 AD3d 192 [2d Dept 2009], [internal quotation and citation omitted]). The evidence submitted in support of a motion for summary judgment must be viewed in the light most favorable to the non-moving party, giving that party the benefit of any favorable inference (see Open Door Foods, LLC v Pasta Machines, Inc., 136 AD3d 1002 [2d Dept 2016]).
For claimant to prevail at trial, she is required to establish that: (1) a dangerous condition existed; (2) the defendant State either created said dangerous condition or had actual or constructive notice thereof and failed to alleviate that condition within a reasonable time; (3) said dangerous condition was a proximate cause of the accident; and, (4) claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Mercer v City of New York, 223 AD2d 688 [2d Dept 1996], aff'd 88 NY2d 955 [1996]).
The State of New York has the same duty applicable to all property owners, that is to keep its premises in a reasonably safe condition given all of the prevailing circumstances (see Preston v State of New York, 59 NY2d 997 [1983]; Seetaram v State of New York, 146 AD3d 916 [2d Dept 2017]). When a defendant has "actual knowledge of an ongoing and recurring dangerous condition [it] can be charged with constructive notice of each specific recurrence of the condition" (Petri v Half Off Cards, 284 AD2d 444 [2d Dept 2002]).
Here, defendant failed to eliminate all questions of fact regarding whether it either created the dangerous condition or had actual or constructive notice of it. Mr. Byrne testified that he was aware of U-posts having been used by the State for one or two years 20 to 25 years ago and Mr. Cumberland described having seen green U-posts - like the one that injured claimant - in the dunes repeatedly over the years. Despite being minimally detailed, the sketchy logbooks refer several times to broken posts or metal bars buried in the sand, including at Field 2. Further, claimant's fiancé testified that the day after claimant's injury, he was able to locate several broken metal posts in the sand in the immediate area of the incident. Finally, an internal parks department email described the metal post fragment that injured claimant as "an older fence post that must a broken off years ago and recently came uncovered."
In sum, questions of fact remain regarding whether the State created the dangerous condition which allegedly caused claimant's injury, or whether it had notice - despite the metal post being entirely covered by sand when claimant was injured - due to the recurring nature of the hazard (see Petri v Half Off Cards, 284 AD2d 444 [2d Dept 2001]; Osorio v Wendell Terrace Owners Corp., 276 AD2d 540 [2d Dept 2000]).
Based on the foregoing, defendant's motion for summary judgment is denied.
April 8, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on defendant's motion for summary judgment: 1. Notice of Motion, Affirmation in Support with Exhibits. 2. Affirmation in Opposition. 3. Affirmation in Further Support of Motion.