                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: November 12, 2015                    520533
________________________________

DAVID WEINBERGER,
                     Appellant,
     v
                                             MEMORANDUM AND ORDER
NEW YORK STATE OLYMPIC REGIONAL
   DEVELOPMENT AUTHORITY et al.,
                    Respondents.
________________________________


Calendar Date:    September 8, 2015

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

                              __________


      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 on the issue of
liability.

      Claimant was crossing a ski trail at Whiteface Mountain
when his skis slid on an object that had been covered by a thin
layer of snow in the middle of the trail, causing him to fall and
sustain injuries. He later described the object as the exposed
surface of a pipe running horizontally across the trail and lying
partially buried in the ground. Claimant thereafter filed a
claim against defendants, supplemented by a verified bill of
particulars, alleging that the accident had occurred on a trail
                              -2-                520533

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.
During his opening statement at trial, however, claimant
introduced an allegation, not present in his pleadings, that the
accident actually occurred on a trail called Upper Empire, which
was closed, and that his injuries were caused by defendants'
failure to adequately notify him of the closure. Upon hearing
these allegations, defendants made an oral motion to preclude all
testimony regarding Upper Empire and whether it was properly
closed.

      After the close of proof, the Court of Claims partially
granted defendants' motion to preclude by disregarding all
testimony concerning claimant's belated allegation that
defendants failed to warn of the closure of Upper Empire.
However, the court denied the remainder of the motion and agreed
to consider testimony that Upper Empire was the trail on which
claimant had fallen. The court then dismissed the claim and
ordered judgment entered in defendants' favor. Claimant now
appeals.

      Initially, we cannot agree with claimant's contention that
the Court of Claims improperly disregarded his evidence that his
injury was caused by defendants' failure to adequately warn him
that Upper Empire was closed. Claimant never attempted to amend
his bill of particulars to include such allegations, despite
having ample time to do so. We find no basis in this record to
deviate from the general rule that, "when a party attempts to
introduce evidence at trial which does not conform to the bill of
particulars, the appropriate remedy is the preclusion of that
evidence" (Larkin v Diaz, 257 AD2d 843, 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, we are able to "independently review the
weight of the evidence . . . and, while according appropriate
deference to the trial judge's credibility assessments and
factual findings, grant the judgment warranted by the record"
(Nationstar Mtge., LLC v Davidson, 116 AD3d 1294, 1295 [2014], lv
                              -3-                520533

denied 24 NY3d 905 [2014]; see Shattuck v Laing, 124 AD3d 1016,
1017 [2015]). Our review of the record confirms that claimant
failed to prove by a preponderance of the admissible evidence
that defendants breached a duty to warn him of the alleged
presence of a metal pipe located in the Upper Empire trail where
he traversed it (see General Obligations Law § 18-103 [4], [13]).
While it is true that the Court of Claims found that claimant
truly thought he had skied over the exposed surface of a pipe,
the court correctly pointed out that, other than claimant's
testimony that he slid on a pipe, which he based upon a momentary
glance as he felt himself lose his balance, there was nothing
else to provide 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 from
other witnesses who may have observed it, even though other
skiers stopped to assist him. Even claimant's injury report –
which was prepared at Whiteface Mountain shortly after he was
injured and included an account of the incident in the "injured
person['s] own words" – made no mention of a pipe.

      On the other hand, the Court of Claims found there to be
"equally credible testimony" indicating that no exposed pipe
matching claimant's description could have been in the location
were the incident occurred. Whiteface Mountain employees
testified that the only metal pipes running across the trails are
corrugated culvert pipes buried at least a foot beneath the
mountain's surface. Although one employee testified, in response
to a hypothetical question, that it is at least possible that
erosion could cause a culvert pipe to become exposed, such
speculation does not require a conclusion that any such hazard
actually existed. Claimant's assertion in his brief that
defendants later discovered the exact pipe that allegedly caused
his fall and withheld that evidence until after trial is a
misstatement of the record.

      In light of the Court of Claims' findings that all parties
presented equally credible evidence, as well as our own review of
the record, we conclude that the claim was properly dismissed
because claimant has failed to meet his burden of proving the
existence of the exposed pipe by a preponderance of the evidence
(see Rinaldi & Sons v Wells Fargo Alarm Serv., 39 NY2d 191, 196
                              -4-                  520533

[1976]; D'Amico v Manufacturers Hanover Trust Co., 173 AD2d 263,
265 [1991]; see also PJI 1:60). As there can be no breach of a
duty to warn of a hazard when no hazard has been proven to exist,
it was unnecessary for the Court of Claims to engage in an
analysis of the Safety in Skiing Code (see General Obligations
Law art 18) and the common-law doctrine of assumption of risk as
alternative bases for its disposition. To the extent that
claimant's remaining contentions have not been rendered academic
by our decision, they have been examined and found to be without
merit.

     McCarthy, J.P., Egan Jr. and Clark, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
