| Weinberger v New York State Olympic Regional Dev.Auth. |
| 2015 NY Slip Op 08226 [133 AD3d 1006] |
| November 12, 2015 |
| Appellate Division, Third Department |
[*1]
| David Weinberger, Appellant, v New York StateOlympic Regional Development Authority et al.,Respondents. |
Hodgson Russ, LLP, Buffalo (Hugh M. Russ III of counsel), for appellant.
Eric T. Schneiderman, Attorney General, Albany (Robert M. Goldfarb of counsel),for respondents.
Rose, J. Appeal from a judgment of the Court of Claims (Sise, J.), entered October 3,2014, upon a decision of the court following a bifurcated trial in favor of defendants onthe issue of liability.
Claimant was crossing a ski trail at Whiteface Mountain when his skis slid on anobject that had been covered by a thin layer of snow in the middle of the trail, causinghim to fall and sustain injuries. He later described the object as the exposed surface of apipe running horizontally across the trail and lying partially buried in the ground.Claimant thereafter filed a claim against defendants, supplemented by a verified bill ofparticulars, alleging that the accident had occurred on a trail called Lower Northway,which was open on the day of the accident, and that he was injured due to defendants'failure to mark the location of the pipe and warn him of its presence on the trail. Duringhis opening statement at trial, however, claimant introduced an allegation, not present inhis pleadings, that the accident actually occurred on a trail called Upper Empire, whichwas closed, and that his injuries were caused by defendants' failure to adequately notifyhim of the closure. Upon hearing these allegations, defendants made an oral motion topreclude all testimony regarding Upper Empire and whether it was properly closed.
After the close of proof, the Court of Claims partially granted defendants' motion topreclude by disregarding all testimony concerning claimant's belated allegation thatdefendants failed to warn of the closure of Upper Empire. However, the court denied theremainder of the motion and agreed to consider testimony that Upper Empire was thetrail on which claimant had [*2]fallen. The court thendismissed the claim and ordered judgment entered in defendants' favor. Claimant nowappeals.
Initially, we cannot agree with claimant's contention that the Court of Claimsimproperly disregarded his evidence that his injury was caused by defendants' failure toadequately warn him that Upper Empire was closed. Claimant never attempted to amendhis bill of particulars to include such allegations, despite having ample time to do so. Wefind no basis in this record to deviate from the general rule that "when a party attempts tointroduce evidence at trial which does not conform to the bill of particulars, theappropriate remedy is the preclusion of that evidence" (Larkin v Diaz, 257 AD2d843, 844 [1999]; see Acunto v Conklin, 260 AD2d 787, 788-789 [1999];Chapman v State of New York, 227 AD2d 867, 868 [1996]).
Turning to the merits, in an appeal from a judgment issued after a nonjury trial, weare able to "independently review the weight of the evidence . . . and, whileaccording appropriate deference to the trial judge's credibility assessments and factualfindings, grant the judgment warranted by the record" (Nationstar Mtge., LLC vDavidson, 116 AD3d 1294, 1295 [2014], lv denied 24 NY3d 905[2014]; see Shattuck vLaing, 124 AD3d 1016, 1017 [2015]). Our review of the record confirms thatclaimant failed to prove by a preponderance of the admissible evidence that defendantsbreached a duty to warn him of the alleged presence of a metal pipe located in the UpperEmpire trail where he traversed it (see General Obligations Law§ 18-103 [4], [13]). While it is true that the Court of Claims found thatclaimant truly thought he had skied over the exposed surface of a pipe, the court correctlypointed out that, other than claimant's testimony that he slid on a pipe, which he basedupon a momentary glance as he felt himself lose his balance, there was nothing else toprovide any support for his conclusion that a pipe existed in the location he described.Indeed, the record contains no photographs of the alleged pipe and no testimony fromother witnesses who may have observed it, even though other skiers stopped to assisthim. Even claimant's injury report—which was prepared at Whiteface Mountainshortly after he was injured and included an account of the incident in the "injuredperson['s] own words"—made no mention of a pipe.
On the other hand, the Court of Claims found there to be "equally credibletestimony" indicating that no exposed pipe matching claimant's description could havebeen in the location were the incident occurred. Whiteface Mountain employees testifiedthat the only metal pipes running across the trails are corrugated culvert pipes buried atleast a foot beneath the mountain's surface. Although one employee testified, in responseto a hypothetical question, that it is at least possible that erosion could cause a culvertpipe to become exposed, such speculation does not require a conclusion that any suchhazard actually existed. Claimant's assertion in his brief that defendants later discoveredthe exact pipe that allegedly caused his fall and withheld that evidence until after trial is amisstatement of the record.
In light of the Court of Claims' findings that all parties presented equally credibleevidence, as well as our own review of the record, we conclude that the claim wasproperly dismissed because claimant has failed to meet his burden of proving theexistence of the exposed pipe by a preponderance of the evidence (see Rinaldi &Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976]; D'Amico vManufacturers Hanover Trust Co., 173 AD2d 263, 265 [1991]; see also PJI1:60). As there can be no breach of a duty to warn of a hazard when no hazard has beenproven to exist, it was unnecessary for the Court of Claims to engage in an analysis of theSafety in Skiing Code (see General Obligations Law art 18) and the common-lawdoctrine of assumption of risk as alternative bases for its disposition. To the extent thatclaimant's remaining contentions have not been rendered academic by our decision, theyhave [*3]been examined and found to be withoutmerit.
McCarthy, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the judgment isaffirmed, without costs.