Both sides moved for summary judgment. Both motions denied.
|Claimant short name:||QUINONES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Gary E. Divis, Esq.|
|Defendant's attorney:||BARBARA D. UNDERWOOD
Attorney General of the State of New York
By: Christina M. Calabrese, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||December 3, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, Defendant's Motion for summary judgment seeking dismissal of the Claim is denied. Claimant's Cross-Motion for partial summary judgment on the issue of liability is also denied.
The Claim, which was filed with the office of the Clerk of the Court on May 8, 2017, alleges that, on April 25, 2016, Claimant was incarcerated at Franklin Correctional Facility and, at approximately 3:45 p.m., in the passageway between the C-1 day room and bathroom, he slipped and fell on an accumulation of liquids that were on the floor under a "liquid dispenser," as there was no reservoir under the dispenser (Claim, ¶¶ 2, 3). It is alleged that Defendant was negligent in creating a safety hazzard, in failing to timely repair the condition, and in failing to timely assign porters to mop up the leaking liquid before permitting inmates to use the area (id., ¶ 5).
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 [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 ; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 ; 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" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Center, supra at 853).
"[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 ). Accordingly, while the State is not an insurer of those who enter upon its premises, and negligence cannot be inferred solely from the occurrence of an accident (see McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]; Tripoli v State of New York, 72 AD2d 823, 823 [3d Dept 1979]), it does have a common-law 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 , quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir. 1972], cert denied 412 US 939 ; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 ). That duty extends to the State's institutions, including its correctional facilities (see Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]).
In order to prevail on a motion for summary judgment, Defendant must show, prima facie, that it maintained its premises in a reasonably safe condition and that it did not create, or have actual or constructive notice of, the allegedly-dangerous condition (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011]; Cietek v Bountiful Bread of Stuyvesant Plaza, Inc., 74 AD3d 1628, 1629 [3d Dept 2010]). "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 ; Anderson v Skidmore Coll., 94 AD3d 1203, 1204 [3d Dept 2012]).
Whether a dangerous condition exists, so as to create liability, depends upon the facts and circumstances of each case and is generally a question for the fact finder (Trincere v County of Suffolk, 90 NY2d 976, 977 ; Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]).
In support of its Motion, the State has submitted, inter alia, Assistant Attorney General Christina M. Calabrese's Affirmation (hereinafter, "Calabrese Affirmation"). Counsel states that Claimant testified at his deposition, that, on the date of his accident, he resided on C-1 Dorm for approximately one year and traveled past the area of the chemical/soap dispenser every day, about two or three times a day (Calabrese Affirmation, ¶ 8, and Ex. E, pp. 58-59). Claimant also testified that, on C-1 Dorm, approximately 20-25 porters sweep, mop, buff, as well as clean ceilings, fans, walls, windows, bathrooms and showers on a regular basis (id., ¶ 9, and Ex. E, pp. 44-45). Porters, including Claimant, use the chemical dispenser in order to disperse cleaning liquids to use for various cleaning tasks (id., Ex. E, pp. 75, 85, 91-92). On the day of his fall, Claimant used the dispenser to dispense pink solution in order to clean floors (id., Ex. E, p. 91).
On April 25, 2016, Claimant entered the bathroom and approximately 15 minutes later walked out of the bathroom and slipped on a puddle of "spray buff" from the dispenser, which smells like wax (Ex. E, pp. 80, 84, 85). However, he stated the puddle was not present when he entered the bathroom (Calabrese Affirmation, ¶ 10, Ex. E, pp. 85-86), but the puddle was there 15 minutes later when Claimant exited the bathroom (id., Ex. E, p. 87). Claimant further testified that, prior to April 25, 2016, there was never any accumulation of fluid underneath the dispenser nor did he file any grievances regarding issues with the chemical/soap dispenser (id., ¶ 11, Ex. E, p. 122).
Defendant further asserts that there are no facts which support a determination that a dangerous condition existed and that Defendant had knowledge of such dangerous condition (Calabrese Affirmation, ¶ 19). Defendant also asserts that 15 minutes is not sufficient for Defendant to discover and remedy any spillage as testified to by Claimant (id.).
Based upon Defendant's submission, the Court concludes that Defendant did not 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, supra). It has been held that whether a defendant received notice of a dangerous condition and unreasonably delayed before remedying the condition is a factual issue (Slaughter v State of New York, 238 AD2d 770, 770 [3d Dept 1997]; see Tromblee v State of New York, 52 AD2d 666, 667[3d Dept 1976]; see also Simmons v Saugerties Cent. School Dist., 82 AD3d 1407, 1410 [3d Dept 2011]). Thus, the Court finds and concludes that an issue of fact exists as to whether Defendant had notice of the allegedly dangerous condition in the approximately 15 minute time period Claimant stated the condition arose, and took reasonable steps to alleviate the condition, i.e. the puddle of liquid on the floor, in that time period. Thus, Defendant's Motion for summary judgment is denied.
The Court will now address Claimant's Cross-Motion for summary judgment as to liability. Claimant submitted an affirmation from counsel and a memorandum of law. In addition to opposing Defendant's Motion on the basis that a question of fact exists (Claimant's Memorandum of Law, p. 6), Claimant asserts that Defendant created the dangerous condition because Defendant installed and maintained the chemical/soap dispenser (id., p. 7).
In opposition to the Cross-Motion, Claimant asserts that CPLR 3212(b) requires that a summary judgment motion be supported by a copy of the pleadings, that Claimant has not supported his Cross-Motion with a copy of the pleadings, and, therefore, his Cross-Motion should be denied (Reply Affirmation of Christina M. Calabrese, Esq., Assistant Attorney General [hereinafter, "Calabrese Reply Affirmation"], ¶ 3). While defense counsel correctly states the burden imposed by CPLR 3212(b), the Court notes that Claimant's counsel, in his Affirmation submitted in support of Claimant's Cross-Motion, states that he adopts Defendant's Exhibits A through D submitted in support of its Motion (Affirmation of Gary E. Divis, Esq., ¶ 3). The Court notes that Defendant's Exhibit C is a copy of the Claim in this matter and Exhibit D is a copy of the State's Verified Answer. Therefore, the Court finds that Claimant met his burden of supporting his Cross-Motion with a copy of the pleadings.
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 Solomon v City of New York, 66 NY2d 1026, 1027 ; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 ; Keating v Town of Burke, 86 AD3d 660 [3d Dept 2011]). The existence of a dangerous condition is generally a question of fact that may hinge upon the facts and circumstances peculiar to each case (Moons v Wade Lupe Constr. Co., Inc., supra).
Here, Claimant alleges in his Cross-Motion that proof of the dangerous condition exists: (1) because of the posting of a warning sign after the alleged slip and fall; (2) there was a risk of spillage due to the location of the dispenser; (3) because of potential inmate misfeasance in manipulating the good working order of the dispenser; and (4) because other places are more suitable for the dispenser (Claimant's Memorandum of Law, pp. 7-8).
However, Claimant did not submit any expert testimony, affidavit or proof of any kind that either the dispenser was dangerous, in poor working order, or the location of the dispenser was inappropriately or dangerously placed. It is well settled that post-remedial measures taken by a defendant may not be admitted as proof of negligence (Caprara v. Chrysler Corp., 52 NY2d 114, 122 ; Greblewski v Strong Health MCO, LLC, 161 AD3d 1336, 1337-1338 [3d Dept 2018]; McGarvin v Weller Assoc., 273 AD2d 623, 625 [3d Dept 2000]). Therefore, any proof regarding any measures taken by the State after the date of accrual will not be considered by the Court as proof of negligence.
In addition, Claimant offered no proof that the State knew, or should have known, that there was any dangerous condition relative to this dispenser. Indeed, at his deposition, Claimant testified that, prior to the day in question, he never observed any accumulation of fluid underneath the dispenser, nor did he file any grievances regarding this dispenser (Defendant's Ex. E, p. 122). Further, Claimant offered no proof that any inmate manipulated the dispenser to cause it to leak.
Therefore, the Court also finds and concludes that Claimant has failed to make a showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Thus, Claimant's Cross-Motion for partial summary judgment is denied.
December 3, 2018
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 and Claimant's Cross-Motion for summary judgment:
Defendant's Notice of Motion,
Affirmation in Support & Exhibits Attached 1
Claimant's Notice of Cross-Motion, Affirmation,
Memorandum of Law & Exhibits Attached 2
Defendant's Reply Affirmation 3
Filed Papers: Claim, Answer