JOY STERK AND GILBERT STERK CLAIMANTS APPELLANTS RESPONDENTS v. STATE OF NEW YORK AND STATE OF NEW YORK CANAL CORPORATION DEFENDANTS RESPONDENTS APPELLANTS CLAIM NO 134095 (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Joy R. Sterk (claimant) was injured while riding her bicycle on the Erie Canal Heritage Trail when she struck a wooden bollard that had been placed in the middle of the trail near a road crossing to prevent unauthorized vehicular access to the shared use path and bikeway. Claimants commenced this action asserting a single cause of action against, among others, defendants, alleging that defendants were negligent in permitting a dangerous condition to exist on the property. Following discovery, claimants moved for summary judgment on liability, and defendants moved for summary judgment dismissing the claim. The Court of Claims denied both motions. Claimants appeal, defendants cross-appeal, and we affirm.

Defendants have a duty to maintain their property in a reasonably safe condition (see generally Friedman v State of New York, 67 NY2d 271, 283 [1986]; Alexander v State of New York, 193 AD3d 1328, 1329 [4th Dept 2021]; Frechette v State of New York, 129 AD3d 1409, 1411 [3d Dept 2015]; Drake v County of Herkimer, 15 AD3d 834, 834 [4th Dept 2005]). “[W]hether a dangerous or defective condition exists on the property of another so as to create liability depends on the peculiar facts and circumstances of each case ․, and the existence or nonexistence of a defect or dangerous condition is generally a question of fact for the jury” (Wiedenbeck v Lawrence, 170 AD3d 1669, 1669 [4th Dept 2019] [internal quotation marks omitted]; see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997]).

With respect to their appeal, claimants bore the initial burden on their motion of establishing as a matter of law that “a [dangerous or] defective condition existed and that [defendants] affirmatively created the condition or had actual or constructive notice of its existence” (Gernat v State of New York, 23 AD3d 1015, 1015-1016 [4th Dept 2005] [internal quotation marks omitted]; see generally Atatsi v State of New York, 243 AD3d 1278, 1278 [4th Dept 2025]). Contrary to claimants’ contention, the court properly concluded that claimants’ submissions failed to meet their initial burden of establishing as a matter of law that the bollard claimant struck with her bicycle was a dangerous condition inasmuch as a public way that is properly designed at the time of its construction is not rendered dangerous merely due to later changes in design standards (see Vizzini v State of New York, 278 AD2d 562, 563 [3d Dept 2000]). Although the subsequent changes to the design standards recommend that bollards not be used on bicycle paths unless there is a documented history of unauthorized intrusions by motor vehicles because of the risk that they can be concealed by the bodies of other bicyclists, “compliance with design standards adopted after the construction of a [public way] is not required unless the municipality undertakes ‘significant repair or reconstruction’ that would provide an opportunity for compliance with the new standards,” which did not occur here (Cave v Town of Galen, 23 AD3d 1108, 1109 [4th Dept 2005]; see Preston v State of New York, 6 AD3d 835, 835-836 [3d Dept 2004], lv denied 3 NY3d 601 [2004]; see also Hubbard v County of Madison, 93 AD3d 939, 943-944 [3d Dept 2012], lv denied 19 NY3d 805 [2012]). Claimants also failed to establish the existence of a dangerous condition independent of the design standards through the existence of prior accidents inasmuch as, while they provided evidence of at least two previous accidents on other portions of the canal trail in which a bicycle rider struck a bollard, they failed to establish as a matter of law that the “ ‘prior accidents ․ were caused by the same or similar contributing factors [that] caused the instant accident’ ” (Brown v State of New York, 79 AD3d 1579, 1583 [4th Dept 2010]; see also Fan Guan v State of New York, 55 AD3d 782, 785 [2d Dept 2008]; Hough v State of New York, 203 AD2d 736, 738-739 [3d Dept 1994]).

With respect to the cross-appeal, defendants bore the initial burden on their motion for summary judgment of establishing as a matter of law that the defect that allegedly caused claimant's accident did not constitute a dangerous condition (see generally Wiedenbeck, 170 AD3d at 1669), that defendants did not create and lacked actual or constructive notice of the allegedly dangerous condition (see Parslow v Leake, 117 AD3d 55, 63 [4th Dept 2014]; see generally Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]), or that the allegedly dangerous condition was not a proximate cause of claimant's accident (see Alexander, 193 AD3d at 1329; Smith v Szpilewski, 139 AD3d 1342, 1342-1343 [4th Dept 2016]). Contrary to defendants’ contention, they failed to establish as a matter of law that the subject bollard was not a dangerous condition. Specifically, defendants’ submissions included safety guidelines and design standards warning that bollards and similar physical barriers on bikeways and shared use paths, like the trail here, may be struck by bicyclists because they are subject to concealment by the bodies of other bicyclists. Defendants also submitted deposition testimony from claimant that her husband was riding in front of her prior to the accident and that she did not see the subject bollard, thereby presenting a triable issue of fact whether the bollard constituted an inherently dangerous condition when considered in conjunction with the surrounding circumstances (see Dispensa v City of New York, 245 AD3d 678, 679-680 [2d Dept 2026]; Rosenman v Siwiec, 196 AD3d 523, 524-525 [2d Dept 2021]; cf. Puma v City of New York, 36 AD3d 517, 517 [1st Dept 2007]). The alleged open and obvious nature of the condition “bears only on the injured person's comparative fault” (Gorman v Mooney’s 9, 239 AD3d 1260, 1261 [4th Dept 2025] [internal quotation marks omitted]; see Krutulis v Daiker’s, Inc., 229 AD3d 1115, 1116 [4th Dept 2024]), and does not “negate defendants’ duty to maintain their property in a reasonably safe condition” (Gorman, 239 AD3d at 1261; see Pelow v Tri-Main Dev., 303 AD2d 940, 941 [4th Dept 2003]; Holl v Holl, 270 AD2d 864, 864 [4th Dept 2000]).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court