New York State Court of Claims

New York State Court of Claims
DRAX v. STATE OF NEW YORK, # 2018-038-113, Claim No. 122317


Defendant's motion to dismiss medical negligence claim at the conclusion of claimant's proof reserved upon at trial, granted thereafter. The claim and the proof adduced at trial support allegations of doctor's failure to exercise medical skill and judgment, issues that implicate matters not within the knowledge of a lay person thus requiring expert testimony, which claimant did not offer.

Case information

UID: 2018-038-113
Claimant(s): VERNON DRAX
Claimant short name: DRAX
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 122317
Motion number(s):
Cross-motion number(s):
Claimant's attorney: VERNON DRAX, Pro se
Defendant's attorney: BARBARA D. UNDERWOOD, Attorney General
of the State of New York
By: Jeane L. Strickland Smith, Assistant Attorney General
Third-party defendant's attorney:
Signature date: September 20, 2018
City: Saratoga Springs
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an individual incarcerated in a State correctional facility, filed this claim seeking compensation for personal injuries sustained at Green Haven Correctional Facility (CF). The trial of this claim was conducted by videoconference on August 23, 2018, with the parties appearing at Green Haven CF in Stormville, New York and the Court sitting in Saratoga Springs, New York. Claimant presented his testimony, and six exhibits he offered were received in evidence. Defendant did not put on a case. After listening to claimant testify and observing his demeanor as he did so, and upon consideration of that evidence and the documentary evidence received at trial and the applicable law, the Court concludes that defendant is not liable to claimant.


Claimant testified that on July 27, 2012 he was in the rear of a line of 20 inmates being escorted to afternoon meal by Correction Officer (CO) Fisher at Green Haven CF when he stumbled as he was descending stairs and cut his right pinky finger "on an open window that had shards of glass in the corners and throughout the window."(1) CO Fisher stated in a memorandum prepared on July 27, 2012 that he "observed [claimant] trip on the stairs and his [right] hand went through the window" and that claimant "immediately turned around and showed [CO Fisher] a laceration on his [right] pinky finger" (Claimant's Exhibit 2). In a photograph taken after the accident on July 27, 2012, claimant can be seen holding a sign that describes the injury as "cut finger on broken window" (Claimant's Exhibit 6). A medical record from Putnam Hospital Center completed the day after the accident states that claimant "slammed [his] hand through glass" (Claimant's Exhibit 5). On cross-examination, claimant testified that he used the stairwell where his accident occurred on a daily basis and that he had previously noticed that the window was broken, although he could not state the exact date that it had been broken. Claimant testified that because the window was broken, there was "always" water on the stairway and the landing near the window when it snowed or rained. In a response to a Freedom of Information Law (FOIL) request made by claimant, the FOIL Officer stated that "[t]here is no log of broken windows or repair orders for broken windows" and that "[b]roken windows are generally replaced within 24-48 hours" (Claimant's Exhibit 4).


To establish defendant's liability for an alleged defect, claimant must prove by a preponderance of the credible evidence that: (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 [1986]; Dapp v Larson, 240 AD2d 918 [3d Dept 1997]; see also Goldman v Waldbaum, Inc., 297 AD2d 277 [2d Dept 2002]). "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 defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d at 837; Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1005-1006 [3d Dept 2005]; Rinaldi v State of New York, 49 AD2d 361, 363 [3d Dept 1975]). 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]).

Claimant has not proven by a preponderance of the credible evidence that a dangerous condition existed or, if it did, that defendant had notice of the dangerous condition. Claimant testified unambiguously that his finger was cut on a shard of broken glass and his injury was described as a "cut finger on [a] broken window" in photographs taken immediately after the accident (Claimant's Exhibit 6). However, CO Fisher's memorandum states that claimant's hand went "through the window" (Claimant's Exhibit 2 [emphasis added]) and the Putnam Hospital Center medical record stated that claimant "slammed [his] hand through glass" (Claimant's Exhibit 5 [emphasis added]), both of which suggest that claimant's hand struck and broke a previously intact windowpane. Moreover, and assuming that claimant has sufficiently demonstrated that the window was broken before his hand struck it, claimant offered no evidence that defendant's agents created or had actual notice of the broken window, and the Court does not find that a preponderance of the credible evidence demonstrates that defendant had constructive notice of the dangerous condition. Although claimant appeared to be a generally trustworthy witness, the Court does not credit his testimony that the windowpane had been broken for a period of months because it defies comprehension that a broken window with exposed shards of glass that could be used as a weapon would be left unrepaired for the extended period between snow season and July. Second, claimant's own evidence demonstrates that broken windows are "generally replaced within 24-48 hours" (Claimant's Exhibit 4), so while it is possible that a broken window may not be repaired within a few days, it is simply not credible that correction officials would ignore an open and obvious dangerous condition in a well-traveled stairway for months. Thus, in the absence of any evidence to support claimant's testimony that the window was broken for months, defendant's constructive notice of the dangerous condition was not proven by a preponderance of the credible evidence.


Claimant did not prove by a preponderance of the credible evidence that defendant is liable for his injuries. Accordingly, claim number 122317 is DISMISSED. Any motions not previously ruled upon are hereby DENIED.

The Chief Clerk is directed to enter judgment accordingly.

September 20, 2018

Saratoga Springs, New York


Judge of the Court of Claims

1. Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.