Opinion
# 2011-040-068 Claim No. 116907 Motion No. M-80392
12-01-2011
MATOTT v. THE STATE OF NEW YORK
Synopsis
State's motion for summary judgment pursuant to CPLR 3212 denied as Court finds questions of fact exist. Case information
UID: 2011-040-068 Claimant(s): MICHAEL MATOTT Claimant short name: MATOTT Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 116907 Motion number(s): M-80392 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY FRANZBLAU DRATCH, P.C. Claimant's attorney: By: Elizabeth A. Delahunty, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Thomas M. Trace, Senior Attorney Third-party defendant's attorney: Signature date: December 1, 2011 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, Defendant's motion for summary judgment dismissing the Claim pursuant to CPLR 3212 is denied.
The Claim was filed with the Clerk of the Court on May 26, 2009 and amended on June 2, 2009. The Amended Claim alleges that on February 28, 2009, Claimant was an inmate at Oneida Correctional Facility located in Rome, New York (Oneida). It is further alleged that at approximately 8:40 a.m. on that date, Claimant was walking from his dormitory to the visitors' room to meet his wife and daughter, when he slipped and fell "on a large area of snow covered ice" in front of Dorm R and fractured his right ankle (Amended Claim ¶5). It is asserted that the State failed to adequately maintain the walkway free of ice and snow and free of dangerous conditions.
By decision and order of Judge Norman I. Siegel, filed in the Clerk's office on September 14, 2009, the Claim which was filed on June 2, 2009 and was originally assigned Claim No. 116944 was deemed an Amended Claim to Claim No. 116907 and Claim No. 116944 was "deemed closed"(Matott v State of New York, Claim Nos. 116907 & 116944, Motion Nos M-76938 & CM-77018)].
Summary judgment is a drastic remedy to be granted sparingly and only where no material issue of fact is demonstrated in the papers related to the motion (see Crowley's Milk Co. v Klein, 24 AD2d 920 [3d Dept 1965]; Wanger v Zeh, 45 Misc 2d 93, 94 [Sup Ct, Albany County 1965], affd 26 AD2d 729 [3d Dept 1966]). "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY 2d 320, supra at 324; see Winegrad v New York Univ. Med. Center, 64 NY2d 851, supra at 853).
In support of its motion, the State has submitted, inter alia, copies of the deposition transcripts of Claimant (Ex. D attached to Motion), Correction Officer (CO) Brown (Ex. E attached to Motion), Sergeant VanDresar (Ex. F attached to Motion) and Lieutenant Hammond (Ex. H attached to Motion).
Claimant stated he started walking toward the visitors' room at approximately 8:40 a.m., and he was aware that it had rained the previous day and night and that the temperature had dropped below freezing by that morning (Ex. D, p. 33). When he exited his dorm, he could see the walkway was icy (id. at 28) and that it was not snowing (id. at 23). He stated that some of the walkway had ice on it. The remainder was black and had an icy glaze (id. at 29). He stated that he did not see any area of the walkway that was totally safe when he walked out of the dorm (id. at 30-31). He also stated that he was wearing sneakers, rather than his State-issued boots, because they were more comfortable (id. at 26-27). He did not notify any corrections officers about the icy patches on the walkway (id. at 33-34).
CO Brown testified that he was on duty on the morning of February 28, 2009 as the Building 18 Rover at Oneida (Ex. E, pp. 5-6). He stated he exited Building 18 at approximately 8:00 a.m. He further stated that the majority of the walkway was dry and clear and he did not notice any problems with ice on the walkway (id. at 16). When he arrived at the Point 5 Shack shortly thereafter, he realized there were a few patches of ice on the walkway (id.). He "clearly saw [Claimant] fall" (id. at 17). He recalled that there were more than two patches of ice on the walkway (id. at 17). The one Claimant fell upon was the "size of a small office desk," about 5' x 3' (id.). The others were smaller, approximately 1-1/2' in diameter (id.). He stated he called the "crew shack" between 8:00 and 8:30 a.m. to report ice on the walkway (id. at 33). He said it takes the inmate work crew approximately 15 minutes to prepare and load a tractor with rock salt (id.).
CO Brown stated that he saw Claimant fall on a frozen puddle (id. at 18). He stated that the ice was very thin, approximately 1/4-inch thick (id.). He also stated that the area of the walkway where Claimant fell probably was in the shade at that time of the day, had melted earlier when salt was applied to it, and probably had re-frozen (id.).
CO Brown reviewed a log book entry that the inmate work crew was salting the walkway at 8:50 a.m. (id. at 23-24). It appears that this was about five to 10 minutes after Claimant fell. CO Brown further stated that the correction officers ensure that the inmates walk on the walkways when moving about the facility. The inmates are not allowed to walk on the grass (id. at 46).
Sergeant VanDresar testified that he worked the 6:00 a.m. to 2:00 p.m. shift at Oneida on February 28, 2009 (Ex. F, p. 101). He stated that, sometime between 7:00 and 7:15 a.m. on February 28, 2009, he walked from Building 27 past Building 16 on the walkway and the walkway appeared safe and completely dry (id. at 102-103). He did not see any accumulation of water, patches of ice or a buildup of snow on the walkway (id. at 103).
Lieutenant Hammond testified that he was the Watch Commander at Oneida on the 7:00 a.m. to 3:00 p.m. shift on February 28, 2009 (Ex. H, pp. 3-4). He stated that he had no knowledge of water freezing on the walkway prior to Claimant's accident on February 28, 2009 (id. at 23). He also stated that, if he had observed a 3' x 5' patch of ice on the walkway, he would have taken steps to remedy it by salting or sanding the affected area (id. at 40).
Defendant asserts that the walkway at Oneida was maintained in a reasonably safe condition. Defendant further asserts that the icy condition did not exist for a sufficient period of time to put the State on notice of its existence as the ice was described as being "thin" and, therefore, recently formed, as opposed to "thick" and longstanding in nature (Affirmation of Thomas Trace, Esq., in Support of Defendant's Motion, ¶ 14).
To establish a prima facie case of negligence in a slip and fall case, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Pipp v Guthrie Clinic, Ltd., 80 AD3d 1014, 1015 [3d Dept 2011]; De Luke v City of Albany, 27 AD3d 925, 926 [3d Dept 2006]; Kampff v Ulster Sanitation, 280 AD2d 797, 797 [3d Dept 2001]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]).
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 [1984]). Thus, Defendant has a duty to maintain its facilities "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," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100, cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [D]efendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314,1315 [3d Dept 2007]).
"The critical issue to be resolved is whether, under the prevailing conditions, the State fulfilled its duty to take appropriate measures to keep the [roadway/pathway] safe" (Goldman v State of New York, 158 AD2d 845, 845 [3d Dept 1990], appeal dismissed 76 NY2d 764 [1990]; see McGowan v State of New York, 41 AD3d 670, 671 [2d Dept 2007], quoting Pappo v State of New York, 233 AD2d 379, 379 [2d Dept 1996]).
Mr. Matott testified that, as soon as he left his dormitory building, he could see the walkway was icy and did not see any part of the walkway that was "totally safe" (Ex. D attached to Motion, pp. 28, 30-31). Sgt. VanDresar testified, conversely, that he did not see any buildup of ice on the walkway that morning and stated he would say the walkway was completely dry (Ex. F attached to Motion, p. 103). CO Brown testified that, when he arrived at the Point 5 guard booth shortly after 8:00 a.m., he noticed ice on the walkway (Ex. E attached to Motion, p. 16). He also said that he called the "crew shack" between 8:00 and 8:30 a.m. to report the presence of ice on the walkway (id. at 33). The Court finds, on the evidence submitted, that questions of fact exist as to: (1) whether or not a dangerous condition existed of which the State was aware; (2) whether it existed for a sufficient time period prior to the accident to permit Defendant's employees to discover and remedy it; and (3) whether the State maintained the walkway in question in a reasonably safe condition. Also to be considered, should the Court find that Defendant was negligent, is whether any action by Claimant was a superceding cause of the accident, or whether such action contributed to the accident. Those questions need to be determined at trial.
Therefore, based upon the foregoing, Defendant's motion pursuant to CPLR 3212 seeking summary judgment dismissing the Claim is denied.
December 1, 2011
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Defendant's motion for summary judgment:
Papers Numbered
Notice of Motion, Affirmation & Exhibits Attached 1
Affirmation in Opposition & Exhibits Attached 2
Filed Papers: Claim, Amended Claim and Answer