This is the decision following the liability trial of the claim of Anthony Mastroianni arising from his trip and fall August 30, 1998 in a pedestrian crosswalk in the Village of Huntington, Suffolk County. That day was a Sunday and Mr. Mastroianni, as he regularly did, attended St. Patrick's Church, which is located on the southeast parcel of the intersection of State Route 25A and a town ^[FN2] road, Anderson Place. In the area, Route 25A is highly developed and is known as Main Street.

Claimant parked his car in the church's lot at about 9:45 a.m., in time for 10 o'clock Mass. The day was sunny and clear; the streets and sidewalks were dry. Following the service, Mastroianni and a friend of his walked to a nearby diner for a late breakfast. On the way back to his car, "[a]s I was crossing the crosswalk, my foot hit a hole and I fell." Claimant testified that he had fallen forward and was knocked unconscious. When Mastroianni regained consciousness, he walked 20 to 30 feet and sat on a low stone wall bounding the church's property (cl exh 17). Main Street runs east-west; Anderson Place intersects it from the south, but only in a "T-intersection" - - it does not cross Main Street. Claimant fell on the Anderson Place crosswalk that was a few feet from Main Street.

In early 1997, the State had entered into a contract (D257135) to perform certain traffic [*2]signal and related work at dozens of intersections on Long Island, including the intersection at Anderson Place. The latter intersection had previously not had a traffic light; vehicles traveling north on Anderson Place had been controlled by a stop sign at Main Street. As part of the State project, the subject crosswalk was put down. It is unclear whether there had been a crosswalk when the stop sign was in place.

The first day of actual work on the contract was April 10, 1997; the last day of work was January 27, 1999, some five months after claimant's accident. The State formally accepted the project on March 26, 1999. The Record Plans from the Office of Engineering of the State Department of Transportation (DOT) for the contract are entitled "Installation of Traffic Signals at Various Locations." It covers 26 specified intersections involving State routes (cl exh 7). The map and the list on the front page indicate the geographic scope of the project - - from intersections in western Nassau County to those in Greenport and East Hampton on the east end of Long Island.

The first page of Exhibit 15 is a Letter of Transmittal from DOT to Commander Electric, Inc. dated January 15, 1998, but the checklist on page 2 of the Exhibit is dated November 24, 1997 and the DOT memorandum relating to approval, on page 11, is dated December 2, 1997. These documents include the cleaning and preparation of the road surface for the Anderson Place crosswalk and its installation, which work was thus completed at the latest by November 24, 1997. Given that the documents in claimant's exhibit 15 cover a broad area and the testimony that the traffic signal was turned on August 25, 1997, the crosswalk work may have been finished earlier than November 24.

For the period from late summer/fall of 1997 until claimant's accident in the late summer of the following year:

- - There were no reported accidents caused by the condition of the pavement surface of the Anderson Place crosswalk.

- - There were no reported complaints about such road surface.

The hole was filled, according to claimant, the day following the accident (cl exh 27). In any event, there were no photographs offered of the pavement surface as it existed on or before August 30, 1998, nor was there presented a description of the defect in any document, and no accident report was submitted. Save claimant, we did not hear from any witness who observed the defect that caused claimant's fall. According to Mr. Mastroianni, a crossing guard saw his fall and came to assist him, and an ambulance was called by a passerby who saw claimant when he was sitting on the stone wall and realized that he was injured. Claimant had lived in the community his whole life and knew people there. On that note he mentioned John Cody, a Town of Huntington employee or former employee, whom he knew well enough to have a discussion with after the accident.

Mastroianni apparently did not return from the diner by the same route, which change was somehow related to the location where he had parked his car. Absent from Mastroianni's narrative was why his friend from breakfast was not there to witness the accident: did he live a few blocks away and walk home; or was his car parked in a different lot from claimant's?

Claimant's testimony as to what the hole looked like was uncertain. As noted earlier, he initially described the defect simply as part of the phrase, "my foot hit a hole . . ." After marking [*3]an X on a photograph which shows an asphalt patch, not a hole (cl exh 22),^[FN3] claimant was asked how he knew that was where he fell:

[T]here was a crossing guard who witnessed me falling and I became unconscious, and she either revived me or was with me when I woke up, and when I woke up she told me what happened. This is the hole that you - - your foot got caught in.

Claimant called to the stand engineer Nicholas Bellizzi, who is highly experienced in highway and traffic engineering, including the safe movement of pedestrians. Mr. Bellizzi worked from photographs ^[FN4] to deduce the condition of the road surfaceprior to claimant's fall. He concluded that there were defects in the pavement at the time the crosswalk was put down, because there was paint in the cracks: "If the paint had been painted and then it cracked, you'd have very dark lines where you'd see the asphalt, but the paint has actually gone into the valleys . . . or the cracks."

Bellizzi pointed to "alligator" cracks on the photographs as indicative of an earlier stage of pavement deterioration. His inference that the alligator cracks were there when the crosswalk was installed and that the road surface should have been smoothed out at the time is speculative, particularly in view of the project records contained in claimant's exhibit 15 that the cleaning and preparation of the pavement surface met the required specifications (see below). In addition, the alligator cracks in the photographs did not create a height differential on the pavement.

The testimony of Trevor Williams, a civil engineer employed by DOT, who was an engineer-in-charge on contract D257135, was presented via his deposition taken July 17, 2003 (cl exh 26). Mr. Williams explained that his primary responsibility was to ensure that the contractor perform the work according to the contract plans (cl exh 26, p.23). He testified that he, or a State inspector, would "look and see if the road condition, the state of the road, is smooth enough to put" down the crosswalk. Records from the project for the Anderson Place intersection indicate that the "cleaning and preparation of pavement surface lines" was done in accordance with contract plan and specifications. The same records also provide that 1,200 linear feet of white preformed reflectorized pavement stripes were installed in accordance with the plans and specifications. (Cl exh 15, pp. 6 & 16 of DOT's memo to Commander Electric, Inc.)

I conclude therefore that when the crosswalk was put down, the pavement surface was sufficiently smooth. At the latest, as noted, this was November 24, 1997 and possibly earlier. Mr. Mastroianni fell on August 30 of the following year. A winter had intervened; the following [*4]exchange occurred on Mr. Bellizzi's cross-examination:

Q . . . [A]fter the winter season . . . isn't it common that there are substantial potholes or problems following [the] winter season?

A. Yes, sure.

Q . . . basic wear and tear coupled with water, salt, sand, snow, ice, plowing, freezing and thawing cycles that's something that would affect asphalt or pavement, correct?

A. It would affect it, yes.

To recover in negligence, an individual who trips on a pavement defect must prove that such was a dangerous condition and that (if defendant did not create it) defendant knew or should have known of it and had sufficient time to discover and remedy the condition. Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996).

Here there were no reports of prior similar accidents in that area, no complaints about the road surface and no documentation thereof - - in sum, there was no actual notice. Constructive notice in this matter must be evaluated in view of the unusual circumstance that we do not know what the offending defect was prior to the date of claimant's accident.

The duty to maintain premises is a non-delegable one with respect to areas where the public is invited. Rothstein v State of New York, 284 AD2d 130, 726 NYS2d 636 (1st Dept 2001); Thomassen v J & K Diner, 152 AD2d 421, 549 NYS2d 416 (2d Dept 1989). In that regard, it is assumed for our purposes that any acts or omissions of a contractor working under Contract D257135 are to be imputed to the defendant State of New York.

With that said, insufficient evidence has been supplied to implicate constructive notice.^[FN5] For example, claimant did not submit a project log or daily report to show that after the traffic light and crosswalk were put in place in 1997, any employee of the State or its contractor was at the Anderson Place site between then and the date of the accident.

As to the relationship between the State and the Town of Huntington, claimant contends that irrespective of the existence of any ongoing State construction project, the State bears responsibility for any crosswalk adjacent to an intersection with a state highway. Vehicle and Traffic Law §1621(a) provides that the State, by order, rule or regulation, "may" within 100 feet of a state highway establish certain traffic regulations, including regulating "the crossing of any roadway by pedestrians" (¶5 of §1621(a)). Even had the State assumed such authority,^[FN6] Mr. [*5]Mastroianni has not satisfied his burden that the defendant was thereby on constructive notice. Among other things, we have seen that Contract D257135 covered 26 intersections in two counties: the State's duty to inspect and if necessary, repave or repair under such circumstances was not developed by claimant in his case.

In view of the foregoing, the claim of Anthony Mastroianni (no. 101566) is dismissed.