Opinion
# 2016-009-100 Claim No. 117681
05-24-2016
MICHAEL ORBINO II v. THE STATE OF NEW YORK
ALEXANDER & CATALANO, LLC BY: Timothy R. Mandronico, Esq., Of Counsel. HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Bonnie G. Levy, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Claimant's claim for damages based upon an alleged slippery condition at Willard Drug Treatment Center was dismissed.
Case information
| UID: | 2016-009-100 |
| Claimant(s): | MICHAEL ORBINO II |
| Claimant short name: | ORBINO |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117681 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | ALEXANDER & CATALANO, LLC BY: Timothy R. Mandronico, Esq., Of Counsel. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Bonnie G. Levy, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | May 24, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In this claim, claimant seeks damages from the State of New York for injuries suffered by him in a slip and fall that occurred on July 10, 2007, at Willard Drug Treatment Center ("Willard"). Specifically, claimant alleges that he slipped and fell as a result of a slippery substance on the floor of the slop sink room at Willard. Claimant alleges that when he began to fall, his arm went through a glass window, resulting in severe cuts to his wrist and arm.
The trial of this claim was bifurcated, and therefore this decision addresses solely the issue of liability.
At the trial, claimant testified that on the day of the incident, he was a parolee at Willard and that he was wearing State boots made of leather with hard rubber soles. He testified that he attended a meeting with his counselor immediately prior to the incident, and that after the meeting he went to the slop sink room at Building B3 (the building in which he was housed at that time), where he slipped and fell on a wet floor near the slop sink where the faucet was located. Claimant testified that as he was falling, he put up his arms to break his fall, and that he fell into the window located above the slop sink, breaking the glass and severely cutting his wrist. Claimant testified that he was taken to the infirmary for medical treatment. He denied telling the health professional who treated his injury that he had gotten angry and punched the window pane.
Under cross-examination, claimant acknowledged that in the meeting with his counselor immediately prior to the incident, he had been advised that he was to be "recycled," and that his term at Willard was to be extended for an additional 30 days. He testified, however, that he was not bothered or upset by the fact that he was going to have to remain at Willard beyond his expected release date.
No other witnesses testified on behalf of the claimant.
William Querrie was the first witness to testify on behalf of the State. Mr. Querrie testified that he is an Offender Rehabilitation Counselor at Willard and that his responsibilities include monitoring the progress (or lack of progress) of those parolees involved in the Alcohol Substance Abuse Treatment Program (ASAT) at Willard. Mr. Querrie testified that claimant was one of those parolees for whom he had supervision and monitoring responsibilities, and that he met with claimant on the date of the incident to review his progress.
Mr. Querrie testified that during this meeting, he informed claimant that he was to be referred to the Evaluation Review Committee, due to a lack of progress in the ASAT Program, and that this referral might result in additional prison time. Mr. Querrie testified that claimant showed no emotion and had no reaction to this news, even though most parolees usually exhibit some reaction when they get referred to the Evaluation Review Committee.
Mr. Querrie testified that within one or two minutes after claimant left his office, he heard some noise coming from the slop sink area in the B3 housing unit. He contacted the correction officer assigned to the unit to confirm that the officer was okay, but did not make any further investigation until after the incident occurred.
Mr. Querrie testified that shortly after the incident, he examined the slop sink area where claimant was injured, and that he did not observe any water on the floor in the slop sink area.
Steven Kerns also testified on behalf of the State. Mr. Kerns testified that at the time of this incident, he was a general mechanic at Willard, and on July 11, 2007, he was called to repair a window in the slop sink room of the B3 dorm. Mr. Kerns testified that this broken window was different from those that he normally had to replace, in that there was very little glass left in the sash.
Anne Dalecki, a registered nurse working at Willard at the time of the incident, also testified. Ms. Dalecki testified that she treated claimant at the Willard infirmary on July 10, 2007, for a laceration to this wrist. She testified that while she was treating claimant, she asked him what happened and that claimant told her that he became angry and hit the window. She also testified that claimant never gave her any indication that an accident had occurred in the slop sink room, or that he had slipped and fallen in that room.
Daniel Storms, a correction officer working at Willard on the date of the incident, was the final witness to testify on behalf of the State. Officer Storms testified that he worked the 2:00 p.m. to 10:00 p.m. shift on July 10, 2007 at the B3 unit. Officer Storms testified that at the commencement of his shift, he will first walk around and inspect the premises to make sure that his housing unit is safe and secure. He testified that as part of his inspection, he looks into the slop sink room. He testified that he did not recall seeing any water on the floor of the slop sink room on that day, but also testified that if he had noticed any water, he would have directed a parolee to clean it up. He did not recall doing so that day.
Officer Storms testified that at approximately 3:00 p.m. that day he was at his desk, located between the counseling room and the slop sink room, when he heard yelling, pounding, and the sound of glass breaking, all coming from the slop sink room. He testified that he immediately investigated, and found claimant alone in the middle of the room bleeding profusely from his hand. Officer Storms testified that he immediately called for security and medical assistance, and wrapped a towel around claimant's bleeding hand.
Officer Storms acknowledged that he did not ask claimant how he became injured, but that he did not observe any water or slippery substance on the floor when he entered the room to come to claimant's assistance. Officer Storms testified that there was glass on the floor directly beneath the window in the slop sink room, and that he had never seen a window broken in the manner that this particular window had been broken.
DISCUSSION
In order to establish liability in a slip and fall case, a claimant must demonstrate, by a preponderance of the evidence, that the defendant owed claimant a duty of care; that a dangerous condition existed that constituted a breach of that duty; that the defendant 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 that this dangerous condition was a proximate cause of the accident (Solomon v City of New York, 66 NY2d 1026 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308 [1980]).
"[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]). As a result, the State has a common-law duty to maintain its facilities in a reasonably safe condition taking into consideration all of the circumstances, including the likelihood of injury, the seriousness of the injury, and the burden of avoiding the risk of injury (Basso v Miller, 40 NY2d 233 [1976]; Preston v State of New York, 59 NY2d 997 [1983]).
In this particular matter, claimant contends that he slipped on a slippery substance as he entered the slop sink room, and that while falling cut his wrist when his hand struck and shattered a window in that room. Claimant contends that the slippery condition of the floor, together with the non-tempered glass window in the slop sink room, constituted a dangerous condition. Claimant also contends that the floor in the slop sink room was frequently slippery, and that the State therefore had constructive, if not actual notice, of the dangerous condition.
The only testimony as to the alleged slippery condition of the slop sink area, however, and allegedly recurring problem with a slippery floor, came from the claimant. On the other hand, William Querrie testified that shortly after the incident, he examined the slop sink area where claimant was injured and did not observe any water on the floor in that area. Additionally, Officer Daniel Storms, a correction officer at Willard who was working on the date of the incident, testified that he immediately responded to the area when he heard claimant screaming, and that he also did not observe any water on the floor, or any slippery condition, when he came to claimant's assistance.
Accordingly, upon consideration of all of the evidence, and after hearing the testimony from the various witnesses, the Court accepts the testimony from defendant's witnesses and finds and concludes that a dangerous condition did not exist in the slop sink area when claimant allegedly slipped and fell. There is simply no credible evidence, aside from claimant's self-serving testimony, to suggest otherwise.
Furthermore, even if this Court were to accept claimant's testimony that a dangerous condition existed, there was insufficient testimony to establish that the State had either actual or constructive notice of the specific condition that caused claimant's fall (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]). In order 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 a [d]efendant's employees to discover and remedy it" (id. at 837). In this particular matter, there was no testimony or evidence whatsoever as to the length of time that the alleged slippery condition existed. Furthermore, a general awareness that the floor could become wet or slippery from time to time is legally insufficient to constitute actual or constructive notice of the particular condition that allegedly caused claimant's slip and fall (Piacquadio v Recine Realty Corp., 84 NY2d 967 [1994]; Gibson v State of New York, 13 Misc 3d 1244 [A], [Ct Cl 2004]).
In sum, after considering all of the testimony and evidence, the Court finds that claimant has failed to prove by a fair preponderance of the credible evidence that a dangerous condition existed, or that any such condition was a substantial factor in his alleged slip and fall. Furthermore, the Court also finds that claimant has failed to prove by a fair preponderance of the credible evidence that the defendant had either actual or constructive notice of a dangerous condition. As a result, this claim must be and hereby is dismissed. The Chief Clerk is directed to enter judgment accordingly.
Any motions on which this Court previously reserved judgment or which were not previously decided are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 24, 2016
Syracuse , New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims