D'Amelio v. State , 17 Misc. 2d 197 ( 1958 )

Russell G. Hunt, J.

The claim herein alleges that on July 24, 1955, while the claimant Katherine D’Amelio was walking along a pathway in the Anthony Wayne State Park in Orange County she was caused to trip over a tree stump due to the negligence of the State and its agencies in the maintenance, operation and control of the park. She sustained a fracture of the left wrist.

The claimants’ testimony was that, with others in their party, they made use of a dirt pathway between a parking area and a picnic area; that this was the means provided for the purpose, and, that there were a number of improperly cut and concealed stumps and roots of trees therein over which Mrs. D’Amelio fell. It was shown, however, that the State did not provide dirt pathways, but, did provide macadam paths which were designed and constructed to lead persons in safety to the several areas.

The credible evidence established, however, that the accident happened elsewhere. It was shown that the claimant, Katherine D’Amelio, fell while she was running along a pathway in the playground area in a heavy rainstorm; and, for this, the State is not liable (Donoghue v. State of New York, 17 Misc 2d 316). The claims herein have not been established by a fair preponderance of the evidence (Roberge v. Bonner, 185 N. Y. 265, 269; Kay v. Metropolitan Street Ry. Co., 163 N. Y. 447) and they are dismissed.

This constitutes the decision herein pursuant to section 440 of the Civil Practice Act.

Let judgment be entered accordingly.