You are here: / / THE TRIAL EVIDENCE DEMONSTRATED THE STATE HAD CONSTRUCTIVE NOTICE OF THE...
, ,

THE TRIAL EVIDENCE DEMONSTRATED THE STATE HAD CONSTRUCTIVE NOTICE OF THE POTHOLE WHERE PLAINTIFF FRACTURED HER ANKLE AND FAILED TO REPAIR IT; NONJURY VERDICT REVERSED (THIRD DEPT).

The Third Department, reversing a nonjury verdict in the Court of Claims, determined the evidence demonstrated the defendant (NYS) had constructive notice of the pothole where plaintiff fractured her ankle in September 2017:

All four DOT [Department of Transportation] witnesses acknowledged that they did not know how long the pothole existed prior to [plaintiff’s] accident. One DOT witness, a retired assistant resident engineer, confirmed that with a “freeze/thaw in the winter . . . the actual [popping out [of a pothole] . . . can occur sometime later, even in warmer months.” The key testimony came from George Laundrie, DOT’s resident engineer … . When asked whether the pothole “must have formed sometime prior to the summer” of 2017, Laundrie responded: “I don’t think it’s fair to say it must have formed prior to June of 2017. I think it’d be fair to say it’s likely it probably formed prior to that . . . , I wouldn’t say must have, but it’s probably pretty likely it formed prior to June.” …

In reviewing a nonjury verdict on appeal, this Court has broad, independent authority to weigh the evidence and render a judgment “warranted by the facts” … . In our view, Laundrie’s testimony was not ambiguous and established that it was probable that the pothole existed for several months before Feeney’s accident. Correspondingly, the record shows that defendant’s road maintenance crews worked in this area six times since January 2017, and most recently in July 2017. On this record, we conclude that claimants met their burden of proving that despite having constructive notice, defendants were negligent in failing to repair the pothole (see PJI 1:60). Inasmuch as issues of comparative negligence and damages remain to be determined, the claim must be remitted to the Court of Claims (see Court of Claims Act … . Feeney v State of New York, 2023 NY Slip Op 06574, Third Dept 12-21-23

Practice Point: Here the Third Department reversed a nonjury verdict in the Court of Claims finding that the evidence demonstrated the State had constructive notice of the pothole where plaintiff fractured her ankle and negligently failed to repair. The matter was sent back for determination of the comparative negligence and damages issues.

 

You might also like
Court May Impliedly Vacate Note of Issue by Directing Discovery
WORKERS’ COMPENSATION LAW 35 PROVIDES A SAFETY NET FOR WORKERS WHO HAVE REACHED THE LIMIT OF WEEKS OF INDEMNITY PAYMENTS PURSUANT TO WORKERS’ COMPENSATION LAW 15 (THIRD DEPT).
Homeowner Did Not Create Dangerous Condition (Wet Leaves on a Slope)/Condition Was Open and Obvious (No Duty to Warn)
BETWEEN DEFENDANT’S GUILTY PLEA AND SENTENCING, THE COURT HELD A HEARING ON WHETHER DEFENDANT WAS ENTITLED TO ALTERNATIVE SENTENCING PURSUANT TO THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (DVSJA); AT THE HEARING DEFENDANT TESTIFIED SHE ACTED IN SELF DEFENSE WHEN SHE STABBED THE VICTIM; THAT TESTIMONY TRIGGERED THE NEED FOR FURTHER EXPLORATION BY THE JUDGE; THE MAJORITY APPLIED AN EXCEPTION TO THE PRESERVATION REQUIREMENT TO CONSIDER THE APPEAL AND REVERSE; TWO DISSENTERS ARGUED THE EXCEPTION TO THE PRESEVATION REQUIREMENT DID NOT APPLY (THIRD DEPT).
No Constitutional Issue Raised by Claim that County Is Paying Too High a “Mobility Tax” Because It Does Not Receive as Much Transit Service as Other Counties Paying the Same Amount
Sentence for Which Merit Time Allowance Is Not Available Did Not Preclude Application for Resentencing Under Drug Law Reform Act
Failure to Allow Inmate to Observe Search of Cell Required Annulment​
Review of Action Brought Under General Municipal Law Section 4 (Re: Unlawful Use of Tax, Water and Sewer Funds) Must Be by Article 78, Not Appeal

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A “HIGH COST LOAN” AS DEFINED BY THE BANKING LAW IS A DEFENSE TO... DEFENDANT IN THIS MANSLAUGHTER CASE WAS ENTITLED TO A REDUCED SENTENCE UNDER...