KOJTARI v. STATE (2001)

In a claim to recover damages for personal injuries, the claimant appeals from (1) a decision of the Court of Claims (Ruderman, J.), dated December 1, 1999, and (2) a judgment of the same court, dated December 14, 1999, which, upon the granting of the defendant's motion to dismiss the claim, made at the close of trial on the issue of liability only, dismissed the claim on the merits.

ORDERED that the appeal from the decision is dismissed, as no appeal lies from a decision (see, Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718);  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that the respondent is awarded one bill of costs.

The injured claimant was walking on a rustic pathway near a beach within Lake Sebago State Park when he was injured after slipping on sand which caused his foot to slide into a hole.   The claimants brought this claim against the defendant for negligently owning, operating, maintaining, and repairing the pathway.   The Court of Claims dismissed the claim on the merits upon the defendant's motion, made at the close of the evidence.   We affirm.

 A determination of the Court of Claims will not be set aside as against the weight of the evidence unless its conclusions could not have been reached under any fair interpretation of the evidence (see, Tomaiko v. State of New York, 211 A.D.2d 782, 622 N.Y.S.2d 99).   Here, based on the dimensions and appearance of the alleged defect and the circumstances of the injury, the hole was a trivial defect which did not constitute a trap or nuisance (see, Marinaccio v. LeChambord Restaurant, 246 A.D.2d 514, 667 N.Y.S.2d 395;  Liebl v. Metropolitan Jockey Club, 10 A.D.2d 1006, 204 N.Y.S.2d 670;  Sullivan v. State of New York, 276 A.D.2d 989, 715 N.Y.S.2d 87;  see also, Trincere v. County of Suffolk, 90 N.Y.2d 976, 665 N.Y.S.2d 615, 688 N.E.2d 489).

The claimants' remaining contentions are without merit.