|Claimant short name:||ROSS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Gina M. Lopez Summa|
|Claimant's attorney:||Ezikel Ross, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: J. Gardner Ryan, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 19, 2018|
|See also (multicaptioned case)|
Ezikel Ross, a pro se inmate, filed a claim on May 27, 2016 in which he alleged that defendant, the State of New York through its agents, failed to properly maintain the shower area, causing him to slip, fall and injure himself while he was an inmate at Fishkill Correctional Facility.
A trial of this claim was held by video conference on August 7, 2018. At the start of the trial, the Assistant Attorney General provided claimant with copies of portions of his ambulatory health record. These records were moved into evidence as Claimant's Exhibit 1. He also set forth on the record that there were no records for the date of claimant's accident on May 14, 2016.
Claimant stated that he attempted to review his medical chart but that the requested date range was not available at the time of his request. Claimant was however unable to specify the date range he requested. At trial, the claim with attached exhibits was moved into evidence as Claimant's Exhibit 3. Claimant testified that on May 14, 2016, he took a shower and then went outside to the yard. Claimant explained that due to pre-existing medical conditions, including pins in his right knee, he was housed in a medical cell where the shower is located in his cell. Upon returning to his cell, he slipped and fell on a puddle of water that was approximately 8-9 inches wide located underneath his bed. Claimant testified that the puddle was from his earlier shower because the lack of a shower curtain caused the water to spread into the area under his bed. He explained that there was a water drain in the shower portion of the medical cell but there was not a water drain in the area near his bed.
He testified that when he moved into the cell, approximately 2 weeks prior to his accident, he made a complaint about the lack of a shower curtain and was told that one would be provided when available. He also testified that he made a grievance about the lack of a shower curtain one week after moving into the cell. He took showers during the two week period prior to his accident and stated that water puddled in the cell.
Claimant testified that he fell on his right knee and hit his head on the bed and also injured his back and his right elbow. Claimant explained that after his fall, he was taken out of his cell and made an incident report. He saw the nurse and 2 days later he saw the doctor who prescribed pain medications and a back brace. Claimant stated that he saw the doctor every two to three weeks and was given a TENS unit as a result of this fall. Claimant testified that he has been having back pain since the accident and is in chronic pain. An x-ray report dated December 21, 2017 indicated that he has moderate degenerative disc disease from L-3 to S-1 as well as osteoarthritis (Cl Exh 2).
On cross-examination, claimant testified that he requested a TENS unit for back pain on April 22, 2016 which was prior to his accident. He explained that this TENS unit was taken away when he went to the special housing unit. He then testified that he was issued a TENS unit after the accident but that it was taken away on July 21, 2016 due to his insertion of the batteries into his body on or about June 2016 (Cl Exh 1). The records reflect that claimant made multiple requests for a TENS unit; for example, one on April 22, 2016, one on July 2, 2016, and another request on July 21, 2016.
At the close of claimant's case, defendant moved to dismiss the case due to claimant's failure to set forth a prima facie case.
Defendant has a duty to act as a reasonable person would in maintaining its premises in a reasonably safe condition. Defendant is not an insurer of the safety of those who use its premises and negligence cannot be inferred solely from the occurrence of an accident (Basso v Miller, 40 NY2d 233 ; Preston v State of New York, 59 NY2d 997 ). Whether or not a dangerous or defective condition exists on the property of another so as to create liability depends upon the facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976, 977 )
In order to recover damages for a breach of this duty, claimant must establish that defendant created or had actual or constructive notice of the dangerous condition and that it failed to take appropriate remedial action (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ). This duty extends to the State's correctional facilities (see, Heliodore v State of New York, 305 AD2d 708 [3d Dept 2003].
"To constitute constructive notice, the defect must be visible and apparent and it must exist for a sufficient length of time before the accident to permit the defendant an opportunity to discover and remedy it" (Lee v Bethel First Pentecostal Church of Am., 304 AD2d 798 [2d Dept 2003]).
Upon consideration of all of the evidence, the Court finds that the evidence presented was insufficient to establish the existence of a dangerous condition. Even assuming that a dangerous condition was established, claimant has failed to establish that defendant had actual or constructive notice of such condition. The credible evidence presented does not support a conclusion that the State had knowledge of water pooling in claimant's cell so as to establish constructive notice.
Therefore, based upon the foregoing, the Court finds that claimant has failed to prove, by a preponderance of the credible evidence, his claim against defendant. Accordingly the claim is hereby dismissed in its entirety. Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.
The Clerk of the Court is directed to enter judgment accordingly.
November 19, 2018
Hauppauge, New York
Gina M. Lopez Summa
Judge of the Court of Claims