"A defense of the Statute of Limitations is deemed waived if not asserted in a timely fashion in either an answer or motion to dismiss." State v. Nadell, 579 N.Y.S.2d 216, 216 (App. Div. 3d Dep't 1992) (citation omitted). In plaintiff's remaining claim, he accuses defendants of commencing the State Lawsuit after the applicable limitations period expired.

Defendant argues that where there are several possible causes of an injury, some of which are not attributable to defendant, claimant cannot prove his claim (see Mendelson Affirmation, ¶¶ 20, 24). Defendant relies, however, on appellate decisions reviewing whether there was sufficient evidence of causation presented at trial (see Bernstein v City of New York, 69 NY2d 1020 [1987]; Ingersoll v Liberty Bank of Buffalo, 278 NY 1 [1938]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]). Where, as here, the matter is before the Court on a summary judgment motion, the issue is whether defendant has made a prima facie showing of lack of causation, thereby shifting the burden to claimant to raise a triable issue of fact (see e.g. Caines v Diakite, 105 AD3d 404 [1st Dept 2013]; Amaro v American Medical Response of New York, Inc., 99 AD3d 563, 563-564 [1st Dept 2012]; Grant v United Pavers Co., Inc., 91 AD3d 499, 500 [1st Dept 2012]).

Having thus independently reviewed the evidence, we first observe that, when a person is injured by the negligence of another, and though diligent in treating the injuries, suffers another accident caused by the original injuries, the original responsible party is also responsible for the subsequent injuries ( see Goldman v State of New York, 28 AD2d 782, 782-783; see also Daliendo v Johnson, 147 AD2d 312, 318). Moreover, in cases where; the evidence shows several possible reasonable causes for a plaintiff's/claimant's injury and the defendant is not responsible for all of those causes, the plaintiff/claimant cannot recover ( see Bernstein v City of New York, 69 NY2d 1020, 1021-1022; Wiwigac v Snedaker, 282 AD2d 801, 803-804; Marchetto v State of New York, 179 AD2d 947, 948-949, lv denied 80 NY2d 751). Nevertheless, the injured person need not refute and exclude remote or technically possible causes of injury, but need merely show that the defendant's negligence and resulting damage can be reasonably inferred ( see Burgos v Aqueduct Realty Corp., 92 NY2d 544, 550; Bernstein v City of New York, supra at 1022). Here, the trial testimony establishes that claimant (who suffers from Meniere's disease which produces vertigo) continued working on the date of her fall at defendant's prison, neither reporting the incident to her supervisor nor seeking medical treatment.

In addition, he testified that he was watching the center line and was able to see the pavement lane markings. The opinion of claimant's expert that the accident was the result of the crack in the road and the faded lane markings is therefore based upon mere speculation, requiring reversal of the judgment and dismissal of the amended claim ( see Clark, 250 AD2d 569; Marchetto v. State of New York, 179 AD2d 947, lv denied 80 NY2d 751). In light of our determination, we do not reach the issue raised in claimant's cross appeal.

"[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury."( Ingersoll v. Liberty Bank of Buffalo , 278 NY 1, 7 [1938] ; see alsoBernstein v. City of New York , 69 NY2d 1020 [1987] ; Marchetto v. State of New York , 179 AD2d 947 [3d Dept 1992] ).Claimant has the burden of proving, by a preponderance of the credible evidence, that the State breached its duty of care by either creating a dangerous condition or by failing to timely and reasonably address a dangerous condition of which the State had either actual or constructive notice and that such condition was a proximate cause of claimant's injuries (seeGordon v. American Museum of Natural History , 67 NY2d 836 [1986] ; Ligon v Waldbaum, Inc. , 234 AD2d 347 [2d Dept 1996] ; Mercer v. City of NewYork , 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996] ).

"[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury." (Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; see also Bernstein v City of New York, 69 NY2d 1020 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]). In order to prevail on his claim, claimant must show: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's injury; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Ligon v Waldbaum, Inc., 234 AD2d 347 [2d Dept 1996]; Mercer v City of NewYork, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]).

Any roadway can be made safer, but the State's duty has generally been met when users of the highway exercising due care can travel over the roadway safely (Tomassi, 46 NY2d at 97; Boulos, 82 AD2d at 931). In order to recover, a claimant has the burden to show that defendant was negligent and that its negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Hamilton v State of New York, 277 AD2d 982 [4th Dept 2000], lv denied 96 NY2d 704 [2001]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992], lv denied 80 NY2d 751 [1992]; Demesmin v Town of Islip, 147 AD2d 519 [2d Dept 1989]). To establish defendant's negligence, the claimant must show that defendant either created a dangerous condition, or had actual or constructive notice of it and failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]; Rinaldi v State of New York, 49 AD2d 361 [3d Dept 1975]).

"[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury." (see also Bernstein v City of New York, 69 NY2d 1020 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]). Claimant cites to specific sections of the manual that he was issued during his week long training program prior to his work assignment to support his claim that the State was negligent in failing to provide him with a high temperature glove bag (Ex. 6). Those sections are as follows:

Further, it should be noted that the State "need not comply with design standards adopted after the construction of a highway unless it undertakes 'significant repair or reconstruction' that would allow compliance with the new standards" (Hay v State of New York, 60 AD3d 1190, 1191 [3d Dept 2009], quoting Preston v State of New York, 6 AD3d 835, 835-836 [3d Dept 2004], lv denied 3 NY3d 601 [2004]). In order to recover, a claimant has the burden to show that defendant was negligent and that its negligence was a proximate cause of the accident (Bernstein v City of New York, 69 NY2d 1020, 1021-1022 [1987]; Hamilton v State of New York, 277 AD2d 982 [4th Dept 2000], lv denied 96 NY2d 704 [2001]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992], lv denied 80 NY2d 751 [1992]; Demesmin v Town of Islip, 147 AD2d 519 [2d Dept 1989]). To establish defendant's negligence, the claimant must show that defendant either created a dangerous condition, or had actual or constructive notice of it and failed to take reasonable measures to correct it (Brooks v New York State Thruway Auth., 73 AD2d 767 [3d Dept 1979], affd 51 NY2d 892 [1980]; Rinaldi v State of New York, 49 AD2d 361 [3d Dept 1975]).

"[w]here the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury."(Ingersoll v Liberty Bank of Buffalo, 278 NY 1, 7 [1938]; see also Bernstein v City of New York, 69 NY2d 1020 [1987]; Marchetto v State of New York, 179 AD2d 947 [3d Dept 1992]). In order to prevail on his claim, claimant must show: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's injury; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Ligon v Waldbaum, Inc., 234 AD2d 347 [2d Dept 1996]; Mercer v City of NewYork, 223 AD2d 688 [2d Dept 1996], affd 88 NY2d 955 [1996]).