Opinion
# 2013-049-058 Claim No. 122534 Motion No. M-83686
10-17-2013
GLEN THOMASSINI v. THE STATE OF NEW YORK
Synopsis
The Court denied inmate's summary judgment motion on a claim alleging a slip and fall on black ice that had formed in a crack in a walkway.
Case information
UID: 2013-049-058 Claimant(s): GLEN THOMASSINI Claimant short name: THOMASSINI Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 122534 Motion number(s): M-83686 Cross-motion number(s): Judge: DAVID A. WEINSTEIN Claimant's attorney: Glen Thomassini, Pro Se Eric T. Schneiderman, New York State Attorney Defendant's attorney: General By: Roberto Barbosa, Assistant Attorney General Third-party defendant's attorney: Signature date: October 17, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
In a claim filed March 20, 2013, pro se claimant Glen Thomassini seeks damages for personal injuries he suffered on February 23, 2013, as the alleged result of a slip and fall on black ice that had formed in a crack in a walkway located on B-block recreation yard of Southport Correctional Facility ("Southport"). After the fall, Thomassini was taken to Arnot Ogden Medical Center ("AOMC"), where he was diagnosed with a wrist injury and was given pain medication and an Ace bandage.
Claimant now moves for an order granting him summary judgment pursuant to CPLR 3212. In addition to his sworn affidavit, claimant's motion is supported by the following: (1) an inmate grievance filed by another Southport inmate on October 1, 2012 that complains of "deep cracked concrete out in the B-block recreation yard"; (2) the Superintendent's October 17, 2012 response to the grievance, stating that the "[m]aintenance staff has completed an investigation [and a] work order has been completed to repair this area"; (3) incident photographs; (4) various medical records, including an inmate injury report, a radiology report, and an emergency services record from AOMC; (5) a memorandum to Southport Superintendent Griffen from Correction Officer W. Jordan, indicating that Jordan witnessed Thomassini fall in the recreation yard on the date at issue; and (6) a videotape of B-block yard date stamped February 23, 2013, that shows Thomassini traversing the same walkway twice and then falling to the ground.
Claimant argues that he is entitled to summary judgment on the ground that defendant had notice of a dangerous condition (as evidenced by the other inmate's grievance and the response thereto), and that it failed to take corrective measures, such as fixing the crack, placing pylon cones or caution signs on or near the condition, or spreading salt in the area. Claimant points to the videotape of B-block yard as supporting this contention. He also asserts that defendant endeavored to "cover up" its negligence by placing pylon cones and salt in the area after he fell, and only then taking photographs of the accident site.
Defendant opposes claimant's motion. In an affirmation by an assistant attorney general, defendant argues that claimant has failed to meet his prima facie burden of demonstrating that the crack in the walkway was a dangerous or defective condition and "not merely trivial" (Aff. in Opp. ¶ 12), or that he slipped and fell because of the defect rather than for some other reason (id. at ¶ 15). Further, defendant asserts that the condition of the walkway was open and obvious. With respect to claimant's contention that the area was not salted, the State submits the affidavit of Safety Officer Nick Kapnolas, who avers that it is a "standard procedure" for prison staff to remove snow and apply salt before inmates are permitted to enter the exercise yard. He states that, upon information and belief, such procedure was followed the day of the incident.
Defendant also provides the affidavit of John Rafferty, plant superintendent at Southport, who asserts that in response to another inmate's grievance an investigation was carried out, and a work order to repair the area was prepared. Rafferty states, however, that it was "not possible" to repair the crack until weather conditions improved.
Defendant also provides its own copy of the videotape supplied by claimant, which appears to contain identical footage.
Discussion
On a motion for summary judgment, the following standards apply:
"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 demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Zuckerman v City of New York, supra, at p 562)."(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
On a motion for summary judgment, the Court must view the facts "in the light most favorable to the non-moving party" (Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]), and must give that party the benefit of "every reasonable inference" (see Negri v Stop & Shop, 65 NY2d 625, 626 [1985]). Summary judgment "should not be granted where there is any doubt as to the existence of a triable issue" of fact (Rotuba Extruders v Ceppos, 46 NY2d 223, 231 [1978]).
The State of New York is under an obligation to maintain its prisons "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" (Miller v State of New York, 62 NY2d 506, 513 [1984] [internal quotations omitted]; Preston v State of New York, 59 NY2d 997, 998 [1983]). The State is not, however, an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850 [1985]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). In a personal injury action arising out of the State's alleged failure to meet this obligation, a claimant must demonstrate that defendant created the dangerous condition that caused the accident, or defendant had actual or constructive notice of that condition and failed to remedy it within a reasonable time (see Gordon v American Museum of Natural History, 67 NY2d 836 [1998]).
Here, claimant has failed to make a prima facie showing that there is no issue of material fact as to whether the walkway where he fell constituted a dangerous condition, or that he was free from fault of such happening. First, claimant asserts that he slipped on black ice that had formed in cracked pavement, yet he submits no weather data nor any other evidence for the time in question that supports his contention that ice existed on the walkway for a sufficient length of time prior to the accident "to permit defendants to discover it and take corrective action," so as to constitute constructive notice (see Martin v RP Assoc., 37 AD3d 1017, 1018 [3d Dept 2007] [internal quotations omitted]). As to the cracked pavement, claimant submits proof that the State had actual notice thereof, but fails to submit competent evidence demonstrating as a matter of law that defendant had not taken appropriate remedial measures within a reasonable time, in light of the prevailing winter weather conditions that existed when the repair order was prepared. While a review of the photographs and videotape submitted on claimant's application indicates that there were cracks in the walkway at issue, it is impossible to determine on the basis of the submissions made on this motion the nature and scope of any defect, whether such defect caused claimant's fall, or whether it was open and obvious as defendant argues. Indeed, the camera view of the videotape makes it difficult to discern just how the slip and fall occurred, or if in fact the fall was caused by ice that formed in cracked pavement as alleged.
Further, the investigation photographs indicate that there were pylons and what appears to be salt in the area. Claimant contends that those items where not present when he fell, while the video sheds no light on this question. But even if I were to find that claimant's affidavit makes a prima facie case that defendant failed to undertake adequate remedial measures until after the accident, defendant has countered this submission with admissible evidence in the form of the Kapnolas affidavit. The averments contained in that affidavit - that the State had a standard practice of removing snow from the yard and salting it before the prisoners entered - are sufficient to establish a question of fact as to the adequacy of defendant's steps to address the presence of ice and snow (see Rivera v Anelish, 8 NY3d 627 [2007] [summary judgment defeated by evidence of habit or regular practice, to show conformity with such practice on a particular occasion]; Soltis v State of New York, 188 AD2d 201 [3d Dept 1993] [evidence of "institutional practice or custom" allows inference of its persistence on a particular occasion] [citation and internal quotation marks omitted]).
In short, there are numerous issues of fact that preclude a grant of summary judgment (see Nanco Envtl. Servs. v Camo Labs., 245 AD2d 601 [3d Dept 1997] [grant of summary judgment improper where there are "genuine questions of fact"]). Such matters must be resolved at trial. Or to put it another way, "[t]he question of whether or not a dangerous or defective condition exists depends on the peculiar facts and circumstances of each case," and is a question for the trier of fact (Schechtman v Lappin, 161 AD2d 118, 121 [1st Dept 1990]).
In view of the foregoing, motion No. M-83686 is denied.
By letter dated August 11, 2013, claimant seeks appointment of counsel in this matter. Such an application must be made in accordance with CPLR 1101, which sets forth the procedure for applying for poor person status. Contrary to claimant's assertion, a reduction of the filing fee for inmates pursuant to CPLR 1101(f) does not entitle him to the privileges of a poor person provided under CPLR 1102. Moreover, claimant is advised that court-appointed counsel pursuant to CPLR 1102 (a) is warranted only in certain limited instances, as where "the litigant is faced with a 'grievous forfeiture or loss of a fundamental . . . right'" (Wills v City of Troy, 258 AD2d 849, 849 [3d Dept 1999], quoting Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]). Such is not the case in the matter before me, which is a claim for monetary damages arising out of a slip and fall.
October 17, 2013
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion for Summary Judgment, Affidavit in Support, and annexed exhibits.
2. Defendant's Affirmation in Opposition, and annexed exhibits.
3. Claimant's Correspondence dated August 11, 2013.