New York State Court of Claims

New York State Court of Claims
RAMULIC v. STATE OF NEW YORK, # 2018-053-005, Claim No. 119842

Synopsis

After a bifurcated trial on the issue of liability, the Court finds that claimant established his negligence claim against the State resulting from a fall on snow and ice.  The Court apportioned liability with 75% against the State and 25% against the claimant.

Case information

UID: 2018-053-005
Claimant(s): RAZIM RAMULIC and RAJKA RAMULIC, Individually and as Husband and Wife
Claimant short name: RAMULIC
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) : The Court has sua sponte amended the caption to reflect the properly named defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 119842
Motion number(s):
Cross-motion number(s):
Judge: J. DAVID SAMPSON
Claimant's attorney: ANDREWS, BERNSTEIN, MARANTO & NICOTRA, PLLC
BY: Robert J. Maranto, Jr., Esq.
Andrew J. Connelly, Esq.
Defendant's attorney: ANSPACH MEEKS ELLENBERGER, LLP
BY: David M. Stillwell, Esq.
Third-party defendant's attorney:
Signature date: May 4, 2018
City: Buffalo
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

On February 13, 2011 at approximately 10:15 p.m., claimant(2) Razim Ramulic (Ramulic) was injured as a result of a slip and fall incident on ice on the grounds of the former Buffalo Psychiatric Center, n/k/a the H.H. Richardson Complex (Richardson Complex), which is located at 400 Forest Avenue, Buffalo, New York. Ramulic was employed at that time by non-party Buffalo Protection & Investigation (BP&I) and was performing his duties patrolling the grounds within the fenced-in area of the Richardson Complex when the incident occurred. A claim was filed on May 12, 2011 asserting one cause of action in negligence by claimants against the defendant State of New York. The trial of this claim was bifurcated and addressed the issue of liability only. The trial was held in Buffalo on December 18, 19 and 20, 2017. Testimony was provided by Ramulic; Christopher Bak, a New York State Safety officer; Aaron Mentkowski, a meteorologist; Michael C. Clark, owner of Smith Brothers Construction; Mona Rinaldo, President of BP&I; Pamela Esposito, a former Deputy Director of Facilities for the New York State Office of Mental Health (OMH); Ken Abram, a field representative with the Dormitory Authority of the State of New York (DASNY); and Monica Pellegrino-Faix, the project coordinator of the Richardson Center Corporation (RCC). At the commencement of the trial, the parties stipulated that the State was the owner of the real property where claimant's incident occurred and that the State owned the buildings adjacent to the Richardson Complex which are part of the Buffalo Psychiatric Center. The parties also stipulated at the commencement of the trial to receive into evidence claimant's exhibits 1 through 39 and 47, as well as the State's exhibits A, B, C and E through II . Following the trial, the parties requested and were granted additional time to submit post-trial memoranda.

TESTIMONY OF RAZIM RAMULIC

Ramulic was born in Bosnia Herzegovina and came to the United States in 1988. He was 51 years old at the time of the incident. In November 2010, Ramulic began his employment as a part-time security guard for BP&I. He was assigned by BP&I to the Richardson Complex, where he worked as a security guard each Friday, Saturday and Sunday from 6:00 p.m. to 6:00 a.m. (TT: 23, 26).(3) As a BP&I security guard, Ramulic patrolled a fenced-in area around the RCC. The Richardson Complex is located inside the campus of the Buffalo Psychiatric Center (BPC). Ramulic was not permitted to carry a gun while on-duty and if he saw a trespasser, he testified that he was instructed to call the BPC safety police. The BPC safety police were headquartered in an adjacent building approximately 400 to 500 yards away from claimant's location. Ramulic also testified that he observed the BPC safety police in patrol cars around the BPC complex. He testified that his duties as a security guard were to patrol the grounds of the Richardson Complex each hour and there were ten stations or points on his route where he would register his presence. Ramulic testified that he would end each round at a trailer within the Richardson Complex where he would remain until making his rounds again.(4) Ramulic testified that he worked alone and followed the same route each time, walking clockwise around the Richardson Complex (TT: 27-32). The buildings inside the Richardson Complex were empty and claimant never observed anyone in them during his work shifts. Ramulic testified that he complained to his supervisor and to the BPC safety police about the lack of snow and ice removal (TT: 35-38). He testified that he never observed any evidence of snow or ice removal inside the fenced-in area where he worked. Claimant testified that the road in front of the gate to the fenced-in area where he worked was plowed and salted and he observed the plow operated by State employees clearing and salting the road outside the gate (TT: 40-41).

On the day of the incident, February 13, 2011, Ramulic parked his car outside the gate to the fenced-in area comprising the Richardson Complex as was his normal practice. He testified that the area where he parked his car was not slippery and was free of any snow and ice. He described the area where he parked as being located near the BPC plant operations building, which was known as building number 22. Ramulic then entered the fenced-in area through a gate which is locked with a lock box. On the preceding two days, February 11 and 12, 2011, claimant testified that he walked ten rounds each day and that the conditions inside the fenced-in area were icy. Ramulic testified that photo exhibit 8 accurately depicts the area inside the gate where he fell. He testified that he walked in that same area during each of his rounds the previous two days and on the three or four rounds he completed on the day of the incident prior to his fall (TT: 41-48). Claimant testified that the incident occurred after he completed the tenth and final scanning station that is located adjacent to the gate and as he was proceeding back to the trailer. He testified that as he walked over the ice, he slipped and fell on his back. Claimant testified that while he lay on the ice, he used his cell phone to call the BPC safety police. He testified that a BPC safety police officer had to go back to their office to obtain an entry key in order to come to claimant's assistance (TT: 49-52).

On cross-examination, Ramulic stated that each time he did rounds, he walked over the same spot where he slipped and fell on the day of the incident.(5) He admitted that he was aware that it was icy. On redirect examination, claimant clarified that although the BPC safety police officer did not have the key on his person, he did have access to the key at the BPC safety police office (TT: 58-59; 66-67).

DEPOSITION TESTIMONY OF MONICA PELLEGRINO FAIX(6)

Claimant's counsel read into the record specific portions of the examination before trial of Monica Pellegrino Faix (Faix), who was formerly the Executive Director of the Richardson Center Corporation (RCC). At the time of claimant's incident, she was the project coordinator for the RCC. Faix testified during her examination before trial that it was not part of her job duties to see that snow or ice removal was taking place on the Richardson Complex or to contract with any entity to perform snow and ice removal. She also testified that there was no other person with the RCC who was in charge of overseeing snow and ice removal at the Richardson Complex. Finally, she testified that DASNY was performing construction oversight for the RCC and there was some snow plowing related to that contract (TT: 70. Exhibit 30 at pp. 8-9).(7) Faix testified that it was her understanding that the State owned the Richardson Complex at the time of Ramulic's incident and that the change of ownership did not occur until June 2014 (TT: 72, Exhibit 30 at p. 11). She was also of the belief that DASNY was an entity of the State (TT: 72, Exhibit 30 at p. 13). Faix testified that she was not at the Richardson Complex at the time of claimant's incident and was only on-site periodically (TT: 72, Exhibit 30 at p. 16). Finally, she testified that she was the only employee of the RCC at the time of the incident (TT: 72, Exhibit 30 at p. 20).

TESTIMONY OF CHRISTOPHER BAK

Christopher Bak (Bak) is employed by the State at the BPC as a Safety Officer 1, where he began his employment in December 2010. Bak testified that one of his responsibilities is to patrol the BPC grounds. On a map depicting the buildings and roads comprising the BPC, Bak testified that he reports to building 62 and that building 22 is the maintenance building (TT: 78-79, Exhibit 39). Bak identified Pamela Esposito as the BPC director of operations in 2011 and his boss. He stated that Ms. Esposito reported to Thomas Dodson, who was the BPC executive director (TT: 82-83). Referencing photo exhibit 47 (same as photo exhibit 9), Bak testified that the fenced-in area depicted in the photograph was consistent with his knowledge of its location and that all of the safety officers employed at the BPC would patrol outside the fence. The road system within the BPC was located directly outside the gate (TT: 84-85).

Bak testified that he was working on the day of the incident along with Officer Wardell Spates and Sergeant Gary McCormick. He testified that a call was received on the patrol car radio stating that a person was down behind the Richardson Complex towers. Sergeant McCormick was stationed in building 62, which Bak described as their command center (TT: 86-87). Utilizing photo exhibit 8, Bak confirmed that the area circled by claimant was the location where he was found on the day of the incident. Bak testified that he went back to building 62 to obtain a key for the gate and then opened the lock and approached claimant. He described the condition of the ground around claimant as "a sheet of ice". Bak testified that when the ambulance arrived, they refused to drive inside the gate where claimant lay because of the ice and that it was "extremely slippery". He testified that there was no evidence that the area had been salted. The ambulance attendants brought a gurney inside the gate and Bak assisted them in getting claimant to the ambulance (TT: 88-89). Bak completed a log report known as a Form 250 in which he recorded that claimant had fallen on ice at the BPC at 10:15 p.m. and that he was found lying on the ice (TT: 90-91).

On cross-examination, Bak testified that the call received after claimant's fall was the first that he had reached out to any BPC safety officers and that he had not reported icy conditions on either February 11, 2011 or February 12, 2011 (TT: 92-93). Bak also testified that it was his understanding that the BPC safety police were to patrol outside the fenced-in area and that the RCC was responsible to patrol inside the fenced-in area, and that the BPC safety police were to provide backup if there was a problem such as a trespasser inside the fence or any situation that the BP&I security guard could not handle (TT: 94-95). On redirect examination, Bak agreed that if they spotted an individual vandalizing one of the buildings in the Richardson Complex when no BP&I security guard was present between 6:00 a.m. and 6:00 p.m., that they would enter the gate and take care of it (TT:98-99). He also agreed with claimant's testimony that if there was someone inside the fence trespassing that claimant's duty was to call the BPC safety police (TT: 99-100).

TESTIMONY OF AARON MENTKOWSKI

Aaron Mentkowski (Mentkowski) is a meteorologist certified by the American Meteorological Society and a broadcast meteorologist employed by television station WKBW. He has worked for WKBW for the past 18 years and has been their chief meteorologist the past eight years (TT: 107-108). Mentkowski testified that he reviewed the climatological data from the U.S. Department of Commerce for the day of the incident, February 13, 2011.(8) He testified that from this data the first time that the temperature went above freezing was after 8:00 a.m. and that it stayed above freezing the entire time until 10:00 p.m. (TT: 110-111). Mentkowski also testified that this data shows that the last time it was above freezing prior to February 13, 2011 was on February 7, 2011. Based upon his review of the weather data, it was his opinion that the ice that claimant fell upon was present the day prior to the incident and would have existed "pretty much the entire month" (TT: 112-113).

On cross-examination, Mentkowski agreed that the weather data he relied upon was measured at the Buffalo Niagara International Airport, which is about nine miles from the BPC. He also agreed that if the incident happened at 10:00 p.m. on February 13, 2011, that the temperature was 43 degrees at the airport. On redirect examination, Mentkowski testified that if claimant stated that ice was present during the two days prior to the incident, this would be consistent with the weather data that he had reviewed (TT: 114-117).

TESTIMONY OF MICHAEL C. CLARK

Michael C. Clark (Clark) was formerly one of the owners of Smith Brothers Construction Company (Smith Brothers), which was a commercial construction company. In 2011, he was Smith Brothers' controller, estimator and project manager. He testified that Smith Brothers did a lot of work at the BPC but did not provide snowplowing contracts and snowplowing was not a regular part of their business (TT: 120-121). Clark testified about a contract dated May 24, 2010 between DASNY and Smith Brothers for general construction work in Region 6 of New York State, which included the BPC (TT: 123-124).(9) He was shown Appendix A to the contract that listed job orders performed under this agreement between March 29, 2011 and July 28, 2011 and in particular, job order number 403.00 dated July 6, 2011, for work performed at the Richardson Complex.(10) Clark testified that these records indicated that they performed two jobs at the Richardson Complex under this contract (job order no. 403 and 407) and that the rest of the job orders were performed at the State University of New York at Buffalo or at Buffalo State College. He also testified that the RCC was not a party to any of these contracts and that any work performed by Smith Brothers was for DASNY at these locations (TT: 125-127).

Clark testified that Smith Brothers was requested to perform snowplowing at the Richardson Complex on one or possibly two occasions. He testified that they were asked to plow some of the snow so that other contractors could move around the buildings (TT: 130-131). With respect to the contract process with DASNY, he acknowledged that the first document that would be received would be a request for proposal (RFP). Clark identified Exhibit 14, entitled "Detailed Scope of Work" originally dated February 8, 2011 and revised April 11, 2011, as intended to encompass job order number 403. He testified that the proposal for this scope of work would have been completed after April 11, 2011, several months after Ramulic's incident. The detailed scope of work stated "[p]rovide overall site maintenance at the HH Richardson Site. Work to include but not limited to, snow removal, repair/board up openings into building, general cleaning of designated interior areas" (TT: 132-135).(11) Clark also identified a RFP relating to job order number 403 that would have been the first document received from DASNY. The RFP was addressed to Clark and was dated February 17, 2011 (four days following the incident). Within the RFP it states that "the job was discussed on February 15, 2011."(12) Clark testified that this RFP was received after claimant's incident and that the job was discussed with him on February 15, 2011, two days following claimant's incident. He also agreed that he was to provide a proposal to DASNY by February 25, 2011. Finally, Clark testified that during the period between 2005 and 2011 when Smith Brothers performed site maintenance at the BPC, he could specifically recall only one occasion when Smith Brothers performed snowplowing (TT: 135-137).

On cross-examination, Clark testified that he did not personally plow the Richardson Complex on that one occasion but that it was performed by another Smith Brothers employee. He also testified that the site maintenance work performed by Smith Brothers was primarily boarding up windows on the vacant buildings in the Richardson Complex to prevent vandalism (TT: 139-141). In order to access the Richardson Complex, Clark testified that Ken Abram, a DASNY employee had to open the gate for him (TT: 142).

TESTIMONY OF MONA RINALDO

Mona Rinaldo (Rinaldo) is the co-owner of BP&I, along with her husband, Jeff Rinaldo. BP&I entered into a contract with the RCC on July 8, 2010 to provide security services at 400 Forest Avenue, Buffalo, New York (TT: 168-170).(13) The contract required BP&I to provide the services of one security guard to patrol the grounds of the Richardson Complex between the hours of 6:00 p.m. and 6:00 a.m., seven days per week. Rinaldo testified that she did not have any interaction with OMH regarding this contract and that she dealt with Faix, who she understood to be employed by the RCC (TT: 170-171). She testified that the area involved was fenced in and that there was a gate with a lockbox which the security guards would access to let themselves in to perform their duties. The contract with the RCC was in effect on February 13, 2011 when Ramulic's accident occurred (TT: 172-173). Rinaldo testified that she understood that only employees of BP&I were to be permitted inside the Richardson Complex during the hours 6:00 p.m. to 6:00 a.m., referring to an email that was received by Jeff Rinaldo.(14) She also identified two emails dated September 24, 2010 and December 17, 2010 from M. Pellegrino Faix to Jeff Rinaldo regarding snowplowing. The first stated that "snow plowing in back of the site will be taken care of as part of the stabilization work", while the second email to him stated, "the snowplowing is all set" (TT: 176-177, Exhibits H and I). Rinaldo testified that the security guards employed by BP&I were instructed to communicate with her, Jeff Rinaldo or their supervisor if they had any complaint about the conditions on the grounds of the Richardson Complex. If there was an emergency, she testified that the security guards were instructed to call the Buffalo Police Department. Rinaldo testified that prior to the incident, she never received any complaints from claimant or any other security guard (TT: 177-179).

On cross-examination, Rinaldo testified that BP&I still has a contract with the RCC to provide security guards for the Richardson Complex, although there is no longer any fence surrounding the complex (TT: 181). She also testified that she was aware that the BPC had safety police on duty 24 hours per day, seven days per week. She was not aware who provided security services between 6:00 a.m. and 6:00 p.m., the hours each day that security services were not provided by BP&I (TT: 182-183). She was not aware that the BPC safety police provided any security services during those hours (TT: 184). Rinaldo agreed that BP&I provided the security guards with the telephone number for the BPC safety police and that this was to be used by the guards when they needed immediate assistance and could not wait for a response from a 911 call (TT: 184-185). With respect to Exhibit G, the email dated July 21, 2010, Rinaldo agreed that it was directed to Pamela Esposito and Steven Deis, both of whom work for OMH and that it was copied to Susan Joffe, another OMH employee, as well as Jeff Rinaldo. She agreed that the subject matter of this email was a report from the BPC safety police regarding friends of the BP&I security guards coming inside the fence. She also agreed that the email stated that if any BP&I security guard needed access inside the fenced-in area between 6:00 a.m. and 6:00 p.m., they were required to sign-in at the BPC safety police office in building 22 (TT: 186-192). Finally, referring to Exhibit I, Rinaldo testified that she did not know whether any snowplowing was performed inside the fence (TT: 194).

TESTIMONY OF PAMELA ESPOSITO

Pamela Esposito (Esposito) was previously employed with OMH at the BPC. She worked there beginning in 2000 and last held the position of deputy director of facilities until her departure in July 2015. In 2011, her title was deputy director of the Facilities at BPC and in this position, she managed several departments, including the BPC safety police (TT: 201-202). Esposito testified that it was her understanding that the RCC was responsible for maintaining the property inside the fenced-in area and that this began back in 2008. With respect to the property inside the fence, Esposito testified that in addition to the fire department, only personnel from DASNY and the RCC could enter through the gate and go inside the fence (TT: 210-211). She also testified that the BPC safety police did not separately have a key to access inside the fence but would use the same key in the lock box as would be used by the fire department in the case of an emergency (TT: 213-214). Esposito testified that in her position, she managed BPC personnel involved in plant operations, including snowplowing and salting. She testified that at no time during the winter of 2010-2011 did BPC employees under her control plow or salt inside the fence. Esposito testified that it was her understanding that snowplowing or salting was to be performed by private contractors retained by the RCC (TT: 215-217).

On cross-examination, Esposito testified that she understood that the area inside the fence was owned by the RCC and that they were required to maintain it (TT: 218-219). She also testified that security within that property was not BPC's responsibility between the hours of 6:00 a.m. and 6:00 p.m. (TT: 219-220). Referencing the email from Faix (Exhibit G), Esposito identified Steve Deis as a state employee and that he was the BPC chief of security. She recalled that the report referenced in that email concerned a fire that had occurred the previous summer. She agreed that the email stated that anyone going inside the gate during the hours of 6:00 a.m. and 6:00 p.m. would first have to check-in at the BPC building 22 (TT: 221-224). With respect to Exhibit 16, Esposito testified that this document referenced meeting minutes of June 11, 2010 and that such meetings were held every four to six months and included representatives of OMH, DASNY and the RCC (TT: 224-225). The minutes produced in Exhibit 16 indicated that RCC would have to pay prevailing wage rates as the work was being performed on state lands (TT: 230-231).

On redirect examination, Esposito agreed that the meeting minutes in Exhibit 16 did not relate to snow or ice conditions inside the fenced property. She also stated that any contractor doing business with the State is required to pay their employees the prevailing wage. Esposito also testified that in order for a contractor or anyone to reach the property inside the fence, they would necessarily have to cross over BPC property (TT: 240-242).

TESTIMONY OF KEN ABRAM

Ken Abram (Abram) has been employed by DASNY for 27 years. Abram testified that DASNY was involved in construction work for State agencies. He testified in his deposition that funding for the work DASNY was retained to perform work in the Richardson Complex was provided by the State (Exhibit GG, pages 19-20). Abram testified at trial that DASNY was hired to stabilize the structures of the Richardson Complex. In that role, he interacted with Faix, who he understood to be the RCC's director (TT: 259-261). Abram testified that he had keys to access the lockbox to gain entry to the property inside the fence. He testified that after a heavy snow, Faix requested that DASNY hire a contractor to plow snow inside the fence. He stated that he was not asked to do so by the BPC (TT: 261-263). Abram testified that he retained Smith Brothers to plow the snow. He recalled that the area had been plowed during the week leading up to the weekend of claimant's incident (TT: 263). As a construction manager for DASNY, it was part of his responsibilities to take care of property with respect to winter weather. He testified that he never requested the State to plow snow inside the fenced in property comprising the Richardson Complex (TT: 266-267).

On cross-examination, Abram stated that he managed construction projects for DASNY and that with respect to the Richardson Complex, erecting the fence was the first part of the project. He agreed that the BPC is a state institution and that the people who work for it are state employees (TT: 268-271). Referencing Abram's deposition testimony, he agreed that erecting the fence was requested by BPC and the RCC (TT: 271-272). He also testified that he has never seen any contract that obligated the RCC to remove snow inside the fenced in property (TT: 275). Finally, Abram testified that DASNY had no further role on the Richardson Complex than to "save the buildings" (TT: 274-275).

Abram was next questioned about the permit agreement (Exhibit B) between the State and DASNY with the RCC dated July 1, 2007. He agreed that this agreement set forth the terms for the use of the property inside the fenced-in area (TT: 276-277). He understood that the agreement provides that the RCC is to perform work and repairs at times and on a schedule acceptable to the State and DASNY (TT: 277-279, Exhibit B, page 3, paragraph 3). That same paragraph provides that the State and DASNY have the ability to deny a proposed schedule for work or repairs "for good cause" (Exhibit B, page 3, paragraph 3). Paragraph 7 of the permit agreement, entitled "Inspection", states that "[t]his permit is not intended to give possession and control of the Premises to the Permittee. Furthermore, the State continues to have an interest in the manner in which the Permittee intends to undertake the Project." This paragraph also provides that the State retains the ability at any time to enter the Premises for repairs or improvements and for safety and code enforcement inspections in connection with the RCC's activities. Finally, it provides that the State shall have access to all parts of the Premises, "including having keys for its use in case of an emergency" (Exhibit B, page 5).

Abram testified that on two occasions he verbally requested Smith Brothers to perform snow removal inside the fenced-in area (TT: 287-288). Although paragraph 21 of the permit agreement requires the RCC to provide security personnel at its expense, nowhere in the agreement does it state that the RCC is responsible for providing snow removal services (Exhibit B). Abram also confirmed that he knew Clark and that Smith Brothers had been a party to contracts with DASNY for many years and they were not retained as a snow removal company (TT: 291-292). Abram testified that Smith Brothers had removed snow inside the fenced area three to four days prior to claimant's incident, however, he then agreed that he previously testified at his deposition that snow removal had occurred a few weeks prior to the incident (TT: 293-294, Exhibit 36, page 25, line 9). Abram also testified that he prepared the DASNY jobsite incident report following claimant's incident.(15) This report indicates that claimant slipped and fell on ice in the parking lot as he was walking in the Richardson Complex. Abram confirmed that the entry in the incident report indicating that the parking lot was salted was performed following claimant's incident. The incident report was executed by Abram on February 15, 2011, the same day the RFP was prepared noting a request to include a proposal for snow removal (TT: 297-298, Exhibit 36).

TESTIMONY OF MONICA PELLEGRINO FAIX

The testimony of Faix was taken prior to trial and was presented to the Court as videotaped testimony. The parties stipulated to receiving the videotaped testimony and transcript into evidence without objection to the content of that testimony as Exhibits HH and II, respectively (TT: 303-305). Faix testified that the RCC was formed in 2006 for the purpose of reusing the historic Richardson Olmstead Campus that was then known either as the BPC or Buffalo State Hospital. The Richardson Complex consists of 13 buildings and 500,000 square feet. In 2006, a board was formed to identify a reuse plan for the buildings, for which a state appropriation was made to fund this activity (Exhibit II at 6). At the time of claimant's incident, Faix was the project coordinator for the RCC (Exhibit II at 7). She identified Exhibit 2 as the permit dated July 1, 2007 between DASNY and the RCC. Faix testified that the permit agreement was in effect until the RCC acquired the property in 2014 (Exhibit II at 7-9). She also testified that BP&I was retained by the RCC as a security company to patrol the perimeter inside the fenced-in area to prevent trespassers (Exhibit II at 12-13). Faix identified the emails from her to Jeff Rinaldo received into evidence as Exhibits H and I (Exhibit II at 14-15). She testified that the people she was in contact with at DASNY were Ken Abram and Jennifer Parsons. She recalled that Abram retained Smith Brothers to perform snow removal inside the fenced-in area (Exhibit II at 18).

On cross-examination, Faix was presented with her prior deposition testimony in which she had stated that she was not familiar with snow and ice removal that took place at the Richardson Complex or contracting with any entity to perform those services. However, during the videotaped testimony, Faix now stated that she was familiar with the snow removal process at the Richardson Complex (Exhibit II at 25-28). Faix recalled and agreed with her prior deposition testimony that DASNY was taking care of the snowplowing and that she understood DASNY to be a New York State entity (Exhibit II at 29-30). She confirmed that since the time of her prior deposition testimony, she learned that DASNY had retained Smith Brothers for snow removal. Faix then testified that it was her understanding that the Richardson Complex was owned by the State (Exhibit II at 31). She confirmed her earlier deposition testimony that she did not know how they brought snow removal equipment through the gate or how the equipment got inside the fence (Exhibit II at 35-36). Faix testified that on the day of the incident, February 13, 2011, she was the only employee of the RCC and was not on site. She testified that her office was located about ten miles away at the Buffalo News, One News Plaza, Buffalo (Exhibit II at 37-38). Although the permit agreement stated that the agreement would expire on March 31, 2008, Faix testified that it was her understanding that this agreement remained in effect after that date and was not replaced with another agreement (Exhibit II at 51-52).

LAW

In general, the State has a duty to maintain property it owns in a reasonably safe condition in view of all circumstances, which includes evaluating the likelihood of injury to others, the seriousness of the injury and the burden to avoid that risk (Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]). However, in that capacity the State is not held to be an insurer against every injury that may occur upon its property (Smith v State of New York, 260 AD2d 819 [3d Dept 1999]).

At issue in the present claim is whether the State relinquished possession and control over the use of the subject property to the RCC prior to claimant Ramulic's accident or whether the State continued to exercise sufficient control over the property so as to owe claimant a duty. The Court of Appeals has held that the general duty to maintain property in a reasonably safe condition is premised on the landowner's ability to exercise control over the property, as "the person in possession and control of property is best able to identify and prevent any harm to others" (Gronski v County of Monroe, 18 NY3d 374, 379 (2011), citing to Butler v Rafferty, 100 NY2d 265, 270 [2003]). A landowner who transfers possession and control is generally not liable for injuries caused by dangerous conditions on the property (Gronski, supra at 379, citing to Chapman v Silber, 97 NY2d 9, 19 [2001]). A court's determination of the issue of control is both a question of law and of fact (Gronski, supra at 379, citing to Ritto v Goldberg, 27 NY2d 887, 889 [1970]).

If sufficient control is established to find that the State owed a duty of care, claimants also have the burden to demonstrate by a preponderance of the credible evidence that a hazardous or dangerous condition existed that constitutes a breach of that duty; that the State had actual or constructive notice of that condition and failed to alleviate it within a reasonable time; and that condition was a substantial factor in bringing about the claimant's injuries (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Parslow v Leake, 117 AD3d 55 [4th Dept 2014]).

Where a hazardous or dangerous condition is alleged to exist, the State may be held liable when it has actual or constructive notice of the hazardous condition and fails to take reasonable measures to correct the danger (see Friedman v State of New York, 67 NY2d 271, 286 [1986]). Whether a dangerous or defective condition exists on property so as to create liability depends on the particular facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976 [1997]).

In order to constitute constructive notice, a defect must be both visible and apparent and it must have existed for a sufficient period of time prior to the accident to permit the defendant's employees to discover and remedy it (Gordon v. American Museum of Natural History, 67 NY2d 836, 837 [1986]).

The Court, as fact-finder, will assess the evidence and the credibility of the witnesses and resolve any factual disputes to determine whether the claimants have met their burden to establish negligence (Ring v State of New York, 8 AD3d 1057 [4th Dept 2004], lv denied 3 NY3d 608 [2004]; Janczylik v State of New York, 126 AD3d 1485 [4th Dept 2015]).

DISCUSSION

The parties to this action stipulated that the State was the owner of the property where the February 13, 2011 incident occurred, i.e., the property known as the Richardson Complex, and that the State also owned the buildings adjacent to the Richardson Complex which are part of what is known as the BPC (TT: 7-8). I also find from the evidence presented at trial that the RCC did not acquire the Richardson Complex until over three years after the incident that is the subject of this litigation.(16)

The State contends that it relinquished control of the property to the RCC prior to the incident and more specifically, the responsibility for snow and ice removal within the fenced-in portion of the Richardson Complex.(17) The only agreement existing between the State and the RCC that was established at trial was a permit agreement (Exhibit B) commencing July 1, 2007, that was made between the RCC and the State.(18) By its terms, the permit agreement was to terminate when "the Project," as defined in that agreement, was completed. The Project was defined in a Grant Disbursement Agreement between the Empire State Development Corporation (ESDC) and the RCC and was recited in the permit agreement as including preconstruction activities for the rehabilitation and use of the Richardson Complex.(19) The testimony of Faix, which was not refuted, indicated that the permit agreement remained in effect until 2014 when the RCC acquired the property comprising the Richardson Complex. Accordingly, I find that the permit agreement was in effect between the State and the RCC at the time of the February 13, 2011 incident.

The premises defined in the permit agreement includes the buildings and surrounding grounds comprising the Richardson Complex, which includes the fenced-in area where the incident occurred. The permit agreement provided that the State maintained the ability to unilaterally revoke the permit without cause (Exhibit B, page 3, paragraph 2). With respect to the work to be performed by the RCC (the Permittee) under the agreement, the State controlled the schedule and time or times for such work and had the ability to deny a proposed schedule "for good cause" (Exhibit B, page 3, paragraph 3). Other evidence establishing the degree of control retained by the State over the Richardson Complex is set forth at paragraph 7, which states that "this permit is not intended to give possession and control of the Premises to the Permittee" and "the State continues to have an interest in the manner in which the Permittee intends to undertake the Project." In addition, the State retained the ability to enter the Richardson Complex at any time for repairs or improvements and for safety and code enforcement inspections in connection with the RCC's activities and "shall have access to all parts of the Premises, including having keys for its use in case of an emergency" (Exhibit B, page 5, paragraph 7). With respect to the issue of responsibility for snow and ice removal, the permit agreement is silent and contains no provision transferring that responsibility from the State to the RCC.

Although the relationship between the State and the RCC is governed by the terms of the permit agreement, the Court of Appeals has held that analysis of the issue of control does not end there but also requires an examination of "the parties' course of conduct - including, but not limited to, the landowner's ability to access the premises - to determine whether the landowner in fact surrendered control over the property such that the landowner's duty is extinguished as a matter of law" (Gronski, supra at 380-381). In this regard, at trial the Court ruled that an adverse inference would be taken against the State with respect to the issue of control of the premises where claimant's accident occurred as a result of the State's failure to produce meeting minutes of the periodic joint meetings conducted between the State, DASNY and the RCC during the course of the permit agreement (TT: 315-317).(20) It has been held that an inference permits the finder of fact to draw a conclusion from a proven fact (Martin v City of Albany, 42 NY2d 13 [1977]).

In support of an adverse inference against the State, the proof at trial established that the State's BPC safety police had access to the premises of the Richardson Complex. Officer Bak testified that they were to provide backup to the one security guard retained by the RCC inside the fenced-in area each day between the hours of 6:00 p.m. and 6:00 a.m. and if there was a trespasser or problem inside the fence, the BPC safety police were instructed to go inside and address it. It was also established that the BPC safety police provided the only form of security for the Richardson Complex between the hours of 6:00 a.m. and 6:00 p.m.

Ken Abram, a DASNY field representative, testified that DASNY was involved in construction work for State agencies. He testified that DASNY's only role with respect to the Richardson Complex was limited to "saving the buildings." Abram testified that he never saw any contract that required the RCC to remove snow on the Richardson Complex. Pamela Esposito, BPC's former deputy director of facilities testified that the State maintained control over who could enter the Richardson Complex, stating that anyone going inside the gate between the hours of 6:00 a.m. and 6:00 p.m. had to first check in with the BPC. In addition, periodic meetings were held every four to six months to monitor the use of the Richardson Complex and the progress of the work performed on it, which meetings included representatives of the State, DASNY and the RCC. The one record produced by the State dated June 11, 2010 indicates an understanding that the Richardson Complex remained State property and the permit agreement was a limited access agreement.(21)

The testimony of Esposito at trial established that the State was responsible for plowing, salting and maintenance of the BPC property. Testimony was received from Officer Bak and Ramulic that BPC regularly plowed and salted the roadways within the BPC. As to whose responsibility it was to remove snow and ice within the fenced-in area comprising the Richardson Complex, Faix testified at her deposition that it was not part of her responsibilities or anyone else connected with the RCC to see that snow or ice removal was taking place at the RCC or to contract with any entity to perform snow and ice removal. Although Esposito testified that she believed that the RCC was responsible for snowplowing inside the fence, she never stated any basis for her belief and the clear terms of the permit agreement contradict her testimony. Abram testified that he had never seen and was not aware of any contract obligating the RCC to perform snow and ice removal. Michael Clark testified that Smith Brothers was requested by Abram on one or possibly two occasions to perform snowplowing at the Richardson Complex. In his deposition, Clark testified that this one request occurred a few weeks prior to claimant's accident (Exhibit CC, page 27). This one occasion is the only evidence of any plowing inside the fence prior to the subject incident.

The Court finds that although Abram testified that he, on behalf of DASNY, requested Smith Brothers to plow snow inside the fenced-in area of the Richardson Complex, this one incident does not evidence a course of conduct and understanding that the State has relinquished control and responsibility for snow and ice removal, especially where as here, the permit agreement contains no provision obligating DASNY or the RCC to perform any snow and ice removal. In addition, no evidence was presented at trial to establish that the RCC reimbursed DASNY or paid Smith Brothers for any snowplowing services. As the permit agreement is silent, the Court finds that the continuing duty to maintain the parking lot and grounds at the Richardson Complex, including snow and ice removal remained with the State. Accordingly, based upon my review of all of the evidence, including the testimony and deposition testimony of the witnesses, and upon evaluating their demeanor when testifying, it is the finding of the Court that claimants have established that the State maintained ownership and sufficient control over the premises where the incident occurred to establish that the State owed a duty of care to claimants.

The next issue to determine is whether claimants have demonstrated by a preponderance of the credible evidence that a hazardous or dangerous condition existed that constitutes a breach of that duty. Claimant Ramulic testified that the area where he fell was icy on the day of the incident and on the two preceding days. Officer Bak and Ramulic testified that they never saw anyone remove snow or ice inside the gate prior to claimant's fall. Officer Bak also testified that when he arrived at the scene of the incident, the area was a "sheet of ice" and had not been salted. His incident report further stated that claimant was found "lying on the ice."(22) In addition, Officer Bak testified that the ambulance personnel would not bring their vehicle inside the gate because of the extremely icy conditions. The incident report prepared by Abram following the accident also attributed claimant's fall to the presence of ice on the parking lot of the Richardson Complex.(23) Accordingly, the Court finds that the testimony and other evidence at trial establishes that the presence of ice on the parking lot of the Richardson Complex on the day of the incident was a hazardous or dangerous condition.

The proof at trial did not establish that the State had actual notice of the presence of ice. As to whether the State had constructive notice, the testimony of meteorologist Aaron Mentkowski established that the air temperature had been below freezing since February 7, 2011, six days prior to the claimant's accident. In fact, his opinion was that the ice on the parking lot was not only present on the day prior to the incident but would have existed "pretty much the entire month." In addition, both Ramulic and Officer Bak testified that the BPC regularly plowed and salted the roadways within the State facility, including right outside the gate to enter the Richardson Complex. They also testified that neither observed anyone plowing snow or salting the parking lot in the Richardson Complex prior to the accident. Clark testified that Smith Brothers was requested to plow on only one occasion, two to three weeks prior to the subject incident.

The permit agreement did not transfer the obligation to plow snow and salt the parking lot or grounds of the Richardson Complex to DASNY or the RCC. As such, the State remained the party responsible to see that the Richardson Complex parking lot and grounds were plowed and salted. Ramulic testified that the road and parking area outside the gate were free of snow and ice, thereby evidencing that the State was aware of the presence of snow and ice and the need to plow and salt the roads and parking areas within its ownership and control.

Accordingly, the Court finds that the testimony and other evidence at trial establishes that ice was present on the parking lot of the Richardson Complex for a sufficient length of time that the State had constructive notice of its presence and failed to alleviate it within a reasonable time. Finally, it is also the Court's finding that the testimony of Ramulic and Officer Bak established that the presence of ice on the parking lot was a substantial factor in bringing about Ramulic's injuries. Accordingly, upon weighing the evidence and considering all of the proof, I conclude that claimants have established by a preponderance of the credible evidence that the State owed a duty to keep its property in a reasonably safe condition, that this duty was breached by failing to plow and/or salt the parking lot in the Richardson Complex and that this breach was a proximate cause of Ramulic's injuries.

I also find that Ramulic must bear responsibility for his injuries. CPLR 1411 provides that in any action to recover damages for personal injury, the culpable conduct attributable to the claimant, including contributory negligence, shall not bar recovery but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant bears to the culpable conduct which caused the damages. I find that the evidence at trial established that Ramulic was familiar with the grounds and parking lot of the Richardson Complex, that he had successfully performed rounds the previous two days without incident, which required him to walk past the very same area of the parking lot where his fall would occur on the day of the subject incident. Claimant Ramulic testified that he traversed this area ten times each day, and that he successfully traversed the parking lot on three to four rounds the day of the incident. Although he was aware of the presence of ice on the parking lot, in order to perform his job and complete all ten stations, claimant Ramulic had no choice but to walk this same route each hour. Claimant Ramulic testified that he complained to his supervisor and to the BPC safety police about the lack of snow and ice removal but nothing was done until after his fall. There was also no proof that claimant Ramulic had access to salt to remove the ice in the parking lot where he fell. However, given his awareness of the icy condition of the parking lot in particular, claimant failed to offer testimony or other proof at trial to establish that he could not alter his path back to the trailer so as to avoid the ice on the parking lot where he fell. I therefore conclude based upon the evaluation of all proof offered at trial that liability should be apportioned between the parties with 75% against the defendant and 25% against claimant Ramulic for the injuries sustained on February 13, 2011.

Claimants' motion for a directed verdict at the close of the trial is denied as numerous questions of fact were found by the Court to exist that were resolved as detailed in the decision above. As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied.(24)

The Clerk of the Court is directed to enter an interlocutory judgment on the issue of liability in accordance with this decision. The Court will set this matter down for trial on the issue of damages as soon as practicable.

May 4, 2018

Buffalo, New York

J. DAVID SAMPSON

Judge of the Court of Claims


2. Rajka Ramulic's claim is derivative in nature, therefore, unless otherwise indicated, all references to claimant will be to Razim Ramulic.

3. The trial transcript will be referenced by page number and with the designation "TT:".

4. Photo exhibit 8 depicts the location of the trailer adjacent to the parking lot where Ramulic slipped and fell. The location of his fall is circled in black.

5. Ramulic identified the area where he fell on photo Exhibit 8 by circling it with a black marker.

6. The transcript of the examination before trial of Monica Pellegrino Faix, dated February 26, 2016, was received into evidence by stipulation as Exhibit 30.

7. Ms. Faix also outlined in pen on photo exhibit 47 the boundaries of the Richardson Complex, which includes her initials "MPF" on either side of the photograph. She testified that everything contained within that area was part of the Richardson Complex (TT: 70-71, Exhibit 30 at pp. 10-11).

8. Exhibit 12.

9. Exhibit 14.

10. Exhibit 14, page 7 (marked at the deposition of 7/22/16 as Exhibit 2A).

11. Exhibit 14, page 11 (marked at the deposition of 7/22/16 as Exhibit 2D).

12. Exhibit 14, page 12.

13. Exhibit F.

14. Exhibit G.

15. Exhibit 19.

16. Exhibit 15, a Reciprocal Roadway Use Agreement between the State and the RCC recites that the Richardson Complex was acquired by a deed dated April 16, 2014 and recorded with the Erie County Clerk on June 26, 2014. Exhibit 17, the deed dated May 5, 2014 recites that the RCC acquired the Richardson Complex on June 26, 2014 when a deed was recorded with the Erie County Clerk's Office.

17. Although addressed by claimants in their post-trial memorandum, the State does not contend that the out-of-possession landlord standard should apply as no lease was in existence with the RCC at the time of the incident. As such, the Court need not address that issue as it does not apply to the facts of this case.

18. Exhibit B at page 3. The State is also referred to collectively in the recital paragraph as the State and DASNY.

19. Exhibit B at page 3, paragraph 1 recites the provision from the Grant Disbursement Agreement defining the Project and states that it will be funded with ESDC grants and is expected to be completed by March 31, 2008 unless extended by ESDC.

20. Exhibit 26, the claimants second notice to produce at paragraphs 5 and 6 sought meeting minutes.

21. Exhibit 16.

22. Exhibit 13.

23. Exhibit K.

24. At the end of the State's post-trial memorandum, it is requested that the Court pursuant to CPLR 1601, apportion fault to the RCC and DASNY. In that the Court determined that the State maintained sufficient control over the subject property and in that the permit agreement does not require either DASNY or the RCC to perform snow and ice removal, there is no basis upon which to assess either non-party with culpable conduct.