Opinion
# 2021-038-101 Claim No. 126886
05-10-2021
MICHAEL McGRIFF v. THE STATE OF NEW YORK
TALISMAN & DELORENZ, P.C. By: Michael Rodi, Esq. LETITIA JAMES, Attorney General of the State of New York By: Charles Lim, Assistant Attorney General
Synopsis
Case information
| UID: | 2021-038-101 |
| Claimant(s): | MICHAEL McGRIFF |
| Claimant short name: | McGRIFF |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 126886 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | TALISMAN & DELORENZ, P.C. By: Michael Rodi, Esq. |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Charles Lim, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 10, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This claim seeks compensation for personal injuries sustained by claimant on March 30, 2014 when he slipped while stepping out of a shower at Wallkill Correctional Facility (CF). The trial on liability of this claim was conducted virtually via the Microsoft Teams Platform from December 2 through December 3, 2020, with the Court sitting in Saratoga Springs, New York, with claimant and his counsel appearing in Brooklyn, New York, and defendant's counsel appearing in Albany, New York. Claimant testified and presented the testimony of Myrick Mickens, who also appeared in Brooklyn, New York. Claimant also presented the examination before trial (EBT) testimony of Arthur Nelson, Robert Milby, and Larry Ebert, all of whom are state employees. Defendant presented the live testimony of Correction Officer (CO) Matthew Sheridan, who appeared at Wallkill CF. Defendant also presented the EBT testimony of claimant and Mickens. Numerous documentary and photographic exhibits offered by the parties were received into evidence. After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of their testimony, all of the other evidence received at trial, the applicable law, and the parties' posttrial submissions, the Court concludes that defendant is not liable to claimant for his injuries.
FACTS
On the afternoon of March 30, 2014, claimant went to the A-1 bathroom at Wallkill CF, where he was incarcerated, to take a shower. As one entered the A-1 bathroom door, a row of four shower stalls and urinals were on the right wall, a row of sinks was on the far wall, and a row of toilet stalls and a slop sink were on the left wall. The shower stalls were partitioned and had shower curtains to provide privacy while showering. A three-inch high "lip" separated the shower floor from the bathroom floor (T1:59), and while the showers contained drains, there was no drain in the floor in front of the shower stalls, as the only floor drain was in front of the toilets and sinks. Claimant testified that the A-1 bathroom was "always flooded" (T1:57) because two of the toilets and the slop sink constantly leaked. Claimant testified that the leak in the slop sink was a constant drip, that inmates routinely placed a bucket under the slop sink to catch the leaking water, and that sometimes the bucket overflowed, creating a flood. Claimant testified that approximately one month prior to March 30, 2014, he and other individuals incarcerated in his unit had submitted grievances complaining about the sinks and toilets in the A-1 bathroom flooding.
All references to the trial transcript are designated by "T1" for the proceedings on December 2, 2020, and "T2" for the proceedings on December 3, 2020. --------
Claimant testified that the slop sink and toilets had again flooded the A-1 bathroom when he went to take a shower the afternoon of March 30, 2014, and that he took a mop that was next to the slop sink and spent approximately 20 minutes mopping up all of the water on the floor prior to entering the shower. Claimant testified that after mopping the floor, he put his towel and bathrobe on a hook on the partition next to the shower and proceeded to take a 30-minute shower. Claimant testified that he wore his slide-in shower slippers in the shower, which he wore any time he went into the bathroom because he did not want to contract a foot fungus. Claimant acknowledged that his shower slippers - which were approximately six years old and made of a hard plastic or rubber material - did not have the same traction as when they were originally purchased, and he testified that the shower curtain for his shower stall did not extend the full length of the shower down to the lip. Claimant testified that Myrick Mickens, another inmate on his unit, was showering in the stall next to claimant's at the time of the incident, and that three other inmates were in the bathroom as well. Claimant testified that after he finished showering, he opened the shower curtain and got his towel off the hook outside the shower, patted his arms and legs dry, as he intended to dry off fully in his cell, reached out of the shower, grabbed his bathrobe, and put it on in the shower stall. Claimant testified that he then stepped out over the lip of the shower with his left leg onto the bathroom floor, and that when he strode with his right leg, his left foot slid "[a]ll in one shot like simultaneously" (T1:97), causing claimant to injure his left Achilles tendon and fall to the ground (see T1:98-100). Claimant testified that at the time of his fall, the floor was flooded from the leaks in the slop sink and toilets, and that the excess water caused him to slip. Claimant testified that he could not move after the accident and that other inmates retrieved CO Matthew Sheridan, who assisted him (see T1:62; see also Defendant's Exhibit G at pp. 131-132).
Mickens testified that when he entered the A-1 bathroom on March 30, 2014, claimant was already in the shower and no one else was in the bathroom. Mickens testified that as he was showering in the stall next to claimant, he heard a "boom," and he looked out of his stall and saw claimant on the floor (T1:23). Although Mickens specifically testified at trial that he did not witness claimant's fall (see T1:25, 36), he testified at his EBT that he had stepped out of the shower first and was drying himself off when he saw " 'in the corner of [his] eye. . . [claimant's] feet and legs just came up underneath him . . . and [he] hit the floor bad' " (T1:37). Mickens testified that at the time of claimant's fall, the floor was "damp, it was wet, water being on the floor from the . . . slop sink . . . leaking" (T1:26). At his EBT, however, Mickens testified that he did not recall observing water on the floor outside the shower on the day of claimant's fall, and that he did not know the source of the excess water on the floor. Mickens testified that the slop sink had leaked many times prior to March 30, 2014, that he had personally informed COs on duty that the leaking sink was causing the floor to be wet and requested that it needed to be fixed, but that it was never repaired. Mickens testified that water would leak from the sink and end up in front of the showers, where there was no drain. Mickens testified that after claimant fell, he asked claimant if he was all right, that claimant asked him to inform CO Sheridan, and that he thereafter told CO Sheridan about claimant's accident.
CO Sheridan testified that he worked the 3:00 p.m. to 11:00 p.m. shift on March 30, 2014, and that according to his log book, he completed his initial fire and safety rounds, which included checking the A-1 bathroom for any problems, such as flooding, at 3:05 p.m. (see Claimant's Exhibit 14). He testified that during his rounds that day, he did not notice any leaking of the slop sink "other than the faucet leak from time to time into the sink itself," and he did not recall whether the toilets were leaking (T2:27). CO Sheridan testified that he noted in his log book at 3:37 p.m. that claimant had "slipped in the shower and is having trouble putting weight on his left foot" (id.; see Claimant's Exhibit 14). CO Sheridan testified that after claimant was provided with medical attention, he inspected the A-1 bathroom floor and "did not notice anything out of the ordinary," that he did not observe any "excess water on the floor or anything like that," and that he "chalked [claimant's accident] up to a simple slip" (T2:15).
CO Sheridan testified specifically that if he had observed flooding in the A-1 bathroom at any time, he would have ordered all of the inmates to leave the bathroom, locked the door, called maintenance to shut the water off, and documented the situation in his log book, but that there was no notation in his log book that he notified maintenance about flooding in the A-1 bathroom on March 30, 2014. CO Sheridan testified that there was a "substantial gap" between the bottom of the A-1 bathroom door and the floor, and that if there was a flood emanating from the slop sink and the toilets, the water would have "actually gone out [the door] onto the housing unit before reaching the showers" (T2:18).
CO Sheridan testified that he did not recall whether he had received any complaints from inmates about the A-1 bathroom prior to claimant's accident. He further testified that if he had received a complaint about an insubstantial leak in the A-1 bathroom, he would have filled out a maintenance work order and told inmates to mop up the water until maintenance could fix the leak, but that if the leak were substantial, he would have called maintenance immediately to fix it. The Court received into evidence two work orders that were both requested on March 21, 2014, which noted that the "A-1 SLOP SINK LEAKS" and that "A-1 TOILETS LAST ONE ON L LEAKS" (Claimant's Exhibits 9-10). The work orders also noted that the repairs were completed on April 2, 2014 (see id.).
Following his accident, claimant filed a grievance that was received on April 23, 2014, in which he stated that before he entered the shower on March 30, 2014, he mopped up "large puddles of water . . . in front of the shower area" that "could have been toilet sewage water," and that "may have been caused by bad drainage of the pipe system in the housing unit of A-1" (Defendant's Exhibit C, unenumerated pg. 1). In a submission dated June 16, 2014 that is part of claimant's grievance, claimant stated that the A-1 bathroom "is almost always flooded, excessively" and that although work orders were placed for the bathroom, he believed that the situation was never fixed (id., unenumerated pg. 10). Claimant did not offer into evidence the grievances that he testified he and other inmates had filed prior to his accident regarding the recurring leaks in the A-1 bathroom.
DISCUSSION
Claimant argues that defendant is liable for his injuries because defendant's employees negligently permitted water to pool in front of the A-1 bathroom showers, which caused claimant to slip. Defendant argues that a dangerous condition did not exist in the A-1 bathroom on the afternoon of claimant's accident because the testimony of claimant and Mickens was unreliable and should not be credited. In reply, claimant argues that the Court should credit the reliable testimony of claimant and Mickens, and that defendant's agents had constructive notice of the recurring leak, as evidenced by the work orders for the A-1 bathroom.
It is well-established that the State has a duty to maintain its premises "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [1972], cert denied 412 US 939 [1973]). "[A] wet floor - especially in a bathroom where one can expect some water to make its way out of the shower to the floor - is not enough, standing alone, to establish negligence" (Seaman v State of New York, 45 AD3d 1126, 1127 [3d Dept 2007]; see Barron v Eastern Athletic, Inc., 150 AD3d 654, 655 [2d Dept 2017]). Rather, in this "slip and fall" case, claimant must prove by a preponderance of the credible evidence: (1) that a dangerous condition existed; (2) that the State either created this dangerous condition or had actual or constructive notice of the condition and failed to correct the problem within a reasonable period of time; and (3) that the dangerous condition was a proximate cause of claimant's accident (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Dapp v Larson, 240 AD2d 918, 918 [3d Dept 1997]; Goldman v Waldbaum, Inc., 297 AD2d 277, 277 [2d Dept 2002]). Constructive notice requires a showing that the particular condition existed "for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it" (Gordon, 67 NY2d at 837; see Quintanilla v State of New York, 94 AD3d 846, 848 [2d Dept 2012]; Ciaschi v Taughannock Constr., 204 AD2d 883, 884 [3d Dept 1994]). "[C]onstructive notice can also be established by evidence that [a] property owner was aware of an ongoing and recurring dangerous condition in the area of the accident and did not rectify the problem" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 960 [3d Dept 2011]; see Solazzo v New York City Tr. Auth., 21 AD3d 735, 736 [1st Dept 2005], affd 6 NY3d 734 [2005] [" A (claimant) may (also) establish constructive notice by demonstrating a recurring dangerous condition in the area of the slip and fall that was routinely left unaddressed"]). It is claimant's burden to prove his claim by a preponderance of the credible evidence (see Tomaino v State of New York, 22 Misc 3d 1013, 1019 [Ct Cl 2008]; Kosinski v State of New York, UID No. 2000-028-0012 [Ct Cl, Sise, J., Nov. 30, 2000]), and the credibility of the witnesses at trial will be a critical factor in determining disputed issues of fact (see Caldwell v State of New York, 72 AD3d 1248, 1250 [3d Dept 2010]; Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Wester v State of New York, 247 AD2d 468, 468 [2d Dept 1998]).
Here, claimant's theory of the case is that the accident occurred as a result of a recurring dangerous condition - i.e. water that had leaked from the slop sink and toilets and pooled in front of the showers - that caused claimant to slip and injure himself. Thus, in order for claimant to succeed in proving his claim, the Court must find credible the testimony of claimant and Mickens that at the time of the incident there was excess water in front of the showers caused by the recurring leaks in the slop sink and toilets. However, in observing their demeanor and testimony at trial, and considering all of the other credible evidence received, the Court declines to credit the testimony of claimant and Mickens, for the following reasons.
As a general matter, in viewing claimant at trial, the Court found his testimony to be exaggerated - at times hyperbolic - unreliable, contrived, and otherwise not creditworthy. Moreover, claimant's testimony that the bathroom floor was flooded when he fell was completely undermined by CO Sheridan, who credibly testified that he would have closed the bathroom and called maintenance to shut off the water had the floor been in such a condition. Indeed, even Mickens contradicted claimant by testifying that the floor was merely "damp" and "wet" at the time of claimant's accident (T1:26), not flooded. Furthermore, the Court does not credit claimant's testimony that there had been recurrent leaks that caused flooding in the A-1 bathroom and that he and other inmates in his unit had complained of those conditions through grievances submitted prior to the accident inasmuch as claimant failed to offer those grievances into evidence, as he did with the grievance he had submitted after the accident. To be sure, while work orders submitted before the accident demonstrate that the slop sink and at least one toilet had leaks (see Claimant's Exhibits 9-10), nothing in those work orders establishes that the water leaked onto the floor or describes the extent of the leaks to otherwise independently corroborate claimant's testimony that there had been recurrent leaks resulting in flooding of the A-1 bathroom. In sum, the Court simply did not find claimant to be a credible witness and thus his testimony failed to establish that there was a dangerous recurring condition in the A-1 bathroom.
The Court similarly does not credit Mickens's testimony, as it was at times confusing and imprecise. Moreover, Mickens's testimony contained two inconsistencies that cast further doubts on his credibility. First, Mickens's trial testimony that he was in the shower and did not witness claimant's accident was incomprehensibly contradicted by his EBT testimony that he was out of the shower and saw the accident out of the corner of his eye. Second, although Mickens testified at trial that the water that caused claimant to slip emanated from the slop sink, he testified at his EBT that he did not know the source of the water. Mickens's testimony thus failed to convince the Court that claimant slipped on water that had leaked from the slop sink and pooled in front of the shower.
Accordingly, claimant has failed to prove by a preponderance of the credible evidence that a dangerous condition existed, or that defendant had constructive notice of a dangerous condition.
CONCLUSION
Claimant did not prove by a preponderance of the credible evidence that he slipped on a dangerous condition, or that defendant had constructive notice of a recurring dangerous condition in the A-1 bathroom on March 30, 2014. Accordingly, defendant is not liable to claimant, and claim number 126886 is hereby DISMISSED. Any motions not previously ruled upon, including defendant's motion to dismiss for failure to make out a prima facie case of negligence, are hereby DENIED.
The Chief Clerk is directed to enter judgment accordingly.
May 10, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims