State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 23, 2015 520130 

________________________________

BECKY LONG,

Appellant,

v

MEMORANDUM AND ORDER

STATE OF NEW YORK,

Respondent.

________________________________

Calendar Date: May 29, 2015

Before: McCarthy, J.P., Egan Jr., Devine and Clark, JJ.

__________

LaFave, Wein & Frament, PLLC, Guilderland (Matthew T.

Fahrenkopf of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Jeffrey W.

Lang of counsel), for respondent.

__________

McCarthy, J.P.

Appeal from a judgment of the Court of Claims (Collins,

J.), entered March 18, 2014, upon a decision of the court in

favor of defendant.

In March 2010, claimant sustained a fall in a parking lot

at Belleayre Mountain, a ski resort owned and operated by

defendant. Claimant subsequently commenced this action against

defendant, alleging that it negligently maintained the premises

in question and that, as a result, she had fallen and sustained

injuries when her foot struck the edge of a crevice in the

pavement of the parking lot. Following a trial, the Court of

Claims found in favor of defendant on the ground that claimant

failed to demonstrate that the alleged dangerous condition was

the proximate cause of her injuries. Claimant appeals and we
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affirm.

Claimant failed to prove by the preponderance of the

evidence that the alleged dangerous condition was a proximate

cause of her fall. When reviewing a decision rendered following

a nonjury trial, this Court independently considers the probative

force of the evidence presented but affords considerable

deference to the trial court's credibility determinations (see

McKee v State of New York, 75 AD3d 893, 894-895 [2010]; Gonzalez

v State of New York, 60 AD3d 1193, 1194 [2009], lv denied 13 NY3d

712 [2009]; Grover v State of New York, 294 AD2d 690, 691

[2002]). As is relevant here and in order to establish her claim

that defendant negligently maintained the premise, claimant bore

the burden of proving, by a preponderance of the evidence, that a

dangerous condition was a proximate cause of her injuries (see

Gonzalez v State of New York, 60 AD3d at 1194; Hilts v Board of

Educ. of Gloversville Enlarged School Dist., 50 AD3d 1419, 1420

[2008]; see e.g. Pipp v Guthrie Clinic, Ltd., 80 AD3d 1014, 1015

[2011]; Bray v McGillicuddy's Tap House, Ltd., 41 AD3d 1069, 1071

[2007]).

At trial, claimant testified that, when she and her husband

arrived at Belleayre, her husband exited their car and began

"vaulting" toward the ticket counter. Claimant proceeded to grab

skiing poles and a bag and then she shut the car door and locked

the car. Claimant further testified that she repeatedly called

ahead to her husband to slow down, but that he did not. Although

she denied that she rushed in any manner in order to catch up

with her husband, claimant also testified that her husband was

only four feet in front of her at the time of her fall. Claimant

testified that her fall was caused by her foot striking the edge

of a crevice in the pavement, and she identified the crevice in a

photograph entered into evidence. That photograph establishes

that a visible crack in the pavement runs parallel – rather than

perpendicular – to the path that claimant identified as taking. 

A member of the ski patrol that responded to claimant after her

fall testified at a deposition that claimant did not report that

any unevenness in the pavement caused her fall. She also

testified that she found claimant on the ground in an area of

dirt. In contrast, claimant testified that she informed ski

patrol personnel, when they arrived, that the crevice caused her
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fall.

As a result of the foregoing evidence, and after observing

claimant testify, the Court of Claims discredited claimant's

testimony that her foot struck the crevice before her fall. As a

result, the court found that claimant failed to meet her burden

of establishing proximate cause. As no other witnesses observed

claimant's fall, claimant's testimony that the crevice was a

cause of her fall was crucial to her ability to meet her burden. 

Deferring to the Court of Claims' determination that claimant's

testimony that her foot struck the raised side of the crevice was

incredible, we find no reason to disturb its conclusion that

claimant failed to establish proximate cause (see Gonzalez v

State of New York, 60 AD3d at 1194-1195; Munno v State of New

York, 266 AD2d 694, 695 [1999]). 

Our determination renders the remaining arguments,

including defendant's arguments regarding alternative grounds for

affirmance, academic. 

Egan Jr., Devine and Clark, JJ., concur.

ORDERED that the judgment is affirmed, without costs. 

ENTER:

Robert D. Mayberger

Clerk of the Court