New York State Court of Claims

New York State Court of Claims
PERNA v. THE STATE OF NEW YORK, # 2019-040-067, Claim No. 126125


Court finds that Claimant failed to establish that Defendant was negligent in connection with her slip and fall in the parking lot at SUNY Albany.

Case information

UID: 2019-040-067
Claimant(s): DIANE PERNA
Claimant short name: PERNA
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 126125
Motion number(s):
Cross-motion number(s):
Claimant's attorney: ABDELLA LAW OFFICES
By: Robert Abdella, Esq.
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Thomas R. Monjeau, Esq., AAG
Shadi Masri, Esq., AAG
Third-party defendant's attorney:
Signature date: August 15, 2019
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, Diane Perna, failed to establish by a preponderance of the credible evidence that Defendant was negligent in connection with personal injuries she sustained on March 21, 2015, when she slipped and fell on ice at the State University of New York at Albany (hereinafter, "SUNYA").

A bifurcated trial, addressing liability issues only, was held on October 23-24, 2018, at the Court of Claims in Albany, New York. There were 11 witnesses: Claimant; her friends Cora McSpirit, Shannon Argersinger, Jennifer Dennett, Lisa Robare, and Lori Walker; Mary R. Martin, the events supervisor at SUNYA's Performing Arts Center (hereinafter, the "PAC"); Nancy Dame, the Assistant Director of SUNYA's physical plant; Paul Borthwick and Kurt Braidt, maintenance workers at SUNYA; and Jason Trembley, an officer (hereinafter, "PO") with the New York State University Police at SUNYA. Thereafter, the parties were granted additional time to order a transcript and then submit post-trial memoranda.


Ms. Martin said, at her Examination Before Trial (hereinafter, an "EBT") conducted on February 16, 2016, that she arrived at SUNYA about 6:45 a.m. on the morning of March 21, 2015. It was a cold, icy, and slippery morning, and she thought, but was not certain, that the employees' parking lot and sidewalks up to the podium area of campus, where the PAC is located, were slippery and icy as well (Tr., pp. 96-97; Ex. 8, pp. 12-13). At trial, she recalled only that the weather was not great, but could not recollect if it was snowing or raining that morning (Tr., pp. 96, 101, 126-127). She assumed, however, that her EBT testimony was accurate, in which she said that, in addition to ice, there was a slushy, wintry mix, but she did not recall any snow (Tr., pp. 99, 132; Ex. 8, p. 34). Ms. Martin did not drive near the visitors' lot where Claimant parked and had no idea what conditions were like there (Tr., pp. 95-96, 131; Ex. 8, pp. 16-17).

Claimant and her friends visited SUNYA that morning to attend a dance recital. They traveled from the Gloversville, New York area in separate cars. The composite recollections of Claimant and her friends were that it was a cold, chilly, gloomy morning. Ms. Argersinger also said it became very misty as she got close to Albany, with freezing rain near SUNYA, and still a very light mist when she arrived on campus (Tr., pp. 294, 301-302, 317). Ms. McSpirit remembered misting that stopped someplace en route to Albany, but then it was all ice (Tr., p. 268). Ms. Dennett remembered it was overcast, but not if there was any active precipitation (Tr., p. 243). They all arrived at SUNYA at about 7:30 a.m. Ms. Robare, however, did recall that it was misty when she arrived in Albany a little bit later, although it was not raining hard (Tr., p. 340). Ms. Walker said that it had been raining and misting on and off that morning, making everything wet, and still was raining when she stopped at a hotel/motel near campus sometime before 9:00 a.m., although she could not recall if it still was raining when she got out of her car at SUNYA (Tr., pp. 322, 328-331, 333).

At her EBT conducted on September 13, 2016, Claimant could not recall if there was precipitation that morning (Tr., p. 50). At trial, however, she said she realized that none was falling at the time of her accident, not even mist, because otherwise, she would have been carrying an umbrella (Tr., pp. 38, 51).

Weather data collected by the National Oceanic and Atmospheric Administration's station at Albany International Airport recorded that the temperature had been continuously just below freezing (28-30 degrees Fahrenheit) from early on the afternoon before Claimant's accident, until after the time Ms. Perna fell the next morning (see Ex. A). From the afternoon of the 20th, and continuing with only a couple of lulls through 1:51 a.m. during the overnight period, trace amounts of light snow were reported, along with accumulating periods of snow during the middle to late afternoon on the 20th that totaled 0.6" (Ex. A). Trace snow again was reported both at 7:51 a.m. and at 8:51 a.m. on the morning of the 21st (Ex. A). By 9:51 a.m. that morning, however, the temperature again rose above freezing (34 degrees Fahrenheit) (Ex. A). The precipitation on March 20-21, 2015 was the first reported since a trace amount on the morning of March 17, 2015, but the temperature later that same day rose to 45 degrees Fahrenheit (Ex. A). The temperature was above freezing (34 degrees) before Claimant fell as recently as the early afternoon of March 20, 2015 (Ex. A).

Claimant arrived at SUNYA about 7:30 a.m. and parked in a visitors' lot. She got out of her car about ten minutes later, after sending a text. Her vehicle was parked with its front bumper facing the curbstone and sidewalk. Ms. Perna said that she walked the three or four steps from her car, stepped with her right foot over the curb and up onto the sidewalk and, as she put her left foot down on the walkway, slipped forward on ice and fell, face first (Tr., pp. 31-32, 38, 66).

No one saw Ms. Perna fall. Ms. McSpirit and Ms. Argersinger each arrived at SUNYA about that same time as Claimant, however, because, while they did not witness the accident, they saw Ms. Perna on the ground immediately afterwards and came to her aid. Ms. Dennett also thought she got there around that time. Ms. Robare arrived some 30-60 minutes after Claimant fell, and Ms. Walker was the last of the friends to get to SUNYA, arriving at about 9:00 a.m. None of the latter three women saw Claimant on the ground after she fell.

Claimant said that she did not see any ice before her accident, but afterwards observed that a thin glaze of white ice covered the entire walkway in the area where she fell, and there was glazed ice in the parking lot as well (Tr., pp. 32, 33, 35-36, 50, 61). Even though Ms. Perna reckons she was on the ground only for about 30 seconds before people helped her back up to a standing position, she said that her clothes and cheek got wet as her body temperature melted the ice (Tr., pp., 36-37, 64).

By contrast, Ms. McSpirit and Ms. Argersinger, each of whom parked very near Claimant's vehicle, saw that the parking lot was covered in ice as soon as they got out of their cars (Tr., pp. 286, 287 [McSpirit], 294-295, 311-312, 318-319 [Argersinger]). Ms. McSpirit said that everything--the sidewalks, driveways, parking lot, trees, grass- was coated in a thin layer of ice and it was very slippery so that she had to skate her way over to assist Claimant (Tr., pp. 269, 276). Ms. Argersinger, likewise, said that she had to slide across the lot, but was focused upon where she was walking so she did not know if there was ice on the grass and trees (Tr., pp. 295, 314-315). Ms. McSpirit said it looked like an ice storm during the night had left a heavy frost on everything so that even the grass was slippery and did not crunch when walked upon (Tr., pp. 270, 276). She said there was a thin layer of ice where Ms. Perna was on the ground (Tr., p. 287). Ms. Argersinger also said that everything was a sheet of ice where Claimant fell (Tr., p. 295).

Ms. Dennett was not sure where she parked, so it might have been a different area than where Claimant fell, but she did encounter some slippery and slick spots of ice that glistened, but were not very visible (Tr., pp. 243-245, 249, 251). Ms. Robare, likewise, was not sure where she parked, although she thought it was the same lot as Ms. Perna, but was surprised to encounter a thin layer of slippery ice covering both the parking lot and walkways because it was not that cold (Tr., pp. 341-345, 348). Ms. Robare gave an affidavit to Claimant's investigator on April 6, 2015, in which she described conditions as slushy, however, at trial she did not know why she used that word, saying it was more like a thin layer of ice (Tr., pp. 344, 351, 353). At her EBT, conducted on November 9, 2016, Ms. Robare said it was icy, not slushy, but the surface looked wet, rather than icy or slippery, and she adopted that description at trial (Tr., p. 354).

Claimant said there was no snow on the sidewalk or in the visitors' lot (Tr., p. 61). Claimant, Ms. McSpirit and Ms. Argersinger each said that the walk to the PAC was icy and very slippery (Tr., pp. 43 [Claimant], 270, 288 [McSpirit], 295 [Argersinger]). Ms. Perna also said there were patches of ice in low spots along the walkway where the ice would crack when she stepped on it and her feet would get wet (Tr., p. 36). Ms. Walker said that by the time she arrived, at about 9:00 a.m., it was beginning to thaw, so that the parking lot and walkways were wet, although she still exercised caution on account of some icy and slippery areas (Tr., pp. 323-324, 332-336).

After Ms. Perna fell, several people, including Ms. McSpirit and Ms. Argersinger, came to her aid. Then, she proceeded to the PAC and attended a portion of the dance competition (Tr., pp. 47-48). Later, however, Claimant began to feel ill and wished to leave, but SUNYA staff prevailed upon her to allow them to call for assistance (Tr., pp. 123-125 [Martin]; Ex. 8, pp. 24-25 [Martin]). PO Trembley received a dispatch call at 9:51 a.m. and responded to the PAC, and remained there while Claimant was evaluated by the Albany Fire Department, and then transported, by ambulance, to Albany Medical Center for treatment (Tr., pp. 369-370, 373-374; Ex. B [Incident Report]). Claimant returned to the PAC later that same afternoon wearing a neck brace (Ex. 8, p. 25).

After Ms. Perna had left for the hospital, PO Trembley walked from the PAC to the visitors' parking lot where Claimant fell in an attempt to retrace her steps (Tr., p. 364). At trial, the officer had no independent recollection of weather, or ice conditions, but rather, relied solely upon the Incident Report he prepared that day (Tr., pp. 375-379). He was able to identify Claimant's vehicle from its vanity license plate (Ex. B). The Incident Report relates that PO Trembley found the "sidewalk and pavement near the vehicle was mostly dry with [a] few moist spots. The sidewalk and pavement did not appear to be icy, nor did there appear to be any salt on them either" (Ex. B). PO Trembley said that neither the parking lot, nor the sidewalk were covered in ice and he could clearly distinguish wet and dry areas (Tr., p. 367).

None of the witnesses were aware of any other slip and fall accidents that day at SUNYA. None saw any evidence that sand, salt, and/or ice melt had been put down on any of the walks that morning, nor did they see any maintenance crews out and about. However, Ms. Robare did see some blue salt down on the walkways and parking lot later in the day at about 4:00 p.m.

Ms. Dame was not on campus the day of Claimant's accident and neither Mr. Borthwick, nor Mr. Braidt, remembered the day, including the weather, the condition of the parking lots or sidewalks, or the specific tasks in which they were engaged. Rather, their testimony, in each case, related to their usual custom and practice. They were in broad agreement that job duties that weekend for Mr. Borthwick and Mr. Braidt included traveling in a motorized utility cart through the portion of the SUNYA campus that included the visitors' lot where Claimant fell, during which they were to collect trash and also inspect the parking lots/sidewalks and attend to any icy conditions they observed. The men carried supplies of salt/sand with them on the cart that they would use to spot treat icy patches by hand, or with a shovel, and they did not need special instructions to address such conditions, which took precedence over trash and other chores. In the event they encountered more endemic icing, they could return to the maintenance depot for larger vehicles equipped with sanders/spreaders. The men had a two-way radio in the cart so that they could be dispatched by power plant staff, who monitor and direct responses to any complaints/conditions on campus. The men said that, typically, their route should have placed them in the visitors' lot where Claimant fell by 7:30 a.m. Ms. Dame found no record of any complaints of dangerous icy or slippery conditions on campus that day, but also agreed that no one alerted the power plant that Claimant had slipped and fell, that SUNYA police responded to the PAC, or that an ambulance was called to transport Ms. Perna to the hospital.


"[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 [1984]). 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 Killeen v State of New York, 66 NY2d 850, 851 [1985]; Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]; 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 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir. 1972], cert denied 412 US 939 [1973]; see Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]).

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 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; 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., 24 AD3d 1005, 1006 [3d Dept 2005]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).

"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 [1986]; Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [3d Dept 2007]). ]

The standard of reasonableness in cases involving snow and ice also must be assessed, however, "with an awareness of the realities of the problems caused by winter weather" (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [3d Dept 1988]), so that a landowner is not obliged to take corrective action to remedy hazardous snow and ice-related conditions during an ongoing storm, or for a reasonable time thereafter (Sherman v New York State Thruway Auth., 27 NY3d 1019, 1020-1021 [2016]; Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]; Ruck v ISS Intl. Serv. Sys., 236 AD2d 702, 702 [3d Dept 1997]). Moreover, a "lull or break in the winter storm does not trigger a defendant's duty to clear snow and ice" (McLaughlin v 22 New Scotland Ave., LLC, 132 AD3d 1190, 1191 [3d Dept 2015]; see Ioele v Wal-Mart Stores, 290 AD2d 614, 616 [3d Dept 2002]; Camacho v Garcia, 273 AD2d 835, 835 [4th Dept 2000], quoting Krutz v Betz Funeral Home, 236 AD2d 704, 705 [3d Dept 1997], lv denied 90 NY2d 803 [1997]). Finally, " '[t]he storm in progress doctrine is not limited to situations where blizzard conditions exist; it also applies in situations where there is some type of less severe, yet still inclement, winter weather' " (Camacho v Garcia, supra, quoting Olejniczak v E.I. du Pont de Nemours & Co., 79 F. Supp.2d 209, 216 [WDNY 1999]; see Zima v North Colonie Cent. School Dist., 225 AD2d 993, 994 [3d Dept 1996]). DISCUSSION

The Court has considered all of the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so. The witnesses provided generally sincere and forthright testimony. The Court finds that Claimant failed to establish her Claim by a preponderance of the credible evidence because her slip and fall accident occurred during a storm in progress so that the State's duty to remedy any dangerous condition was suspended until it had a reasonable time to alleviate the conditions after the storm ceased.

The meteorological data recorded that trace amounts of precipitation fell for most of the period beginning on the afternoon preceding Claimant's accident, with accumulating snow during the middle of that afternoon, through 1:51 a.m. during the overnight period. By 6:45 a.m., when Ms. Martin arrived at the PAC, there was a slushy wintry mix. Several of Ms. Perna's friends also observed periods of mist and freezing rain at or near the SUNYA campus at around the time of Claimant's accident around 7:40 a.m.. The weather data confirmed trace precipitation both shortly after the accident, at 7:51 a.m., and again an hour later.

While there was no blizzard in this instance, the record does establish, and the Court so finds, that inclement weather in the form of freezing rain, mist, and ice, had persisted, on and off, in the area for a substantial period of time. Moreover, freezing rain and mist actively were falling at around the time of the accident, together with temperatures just below freezing since the preceding day.(1) The storm in progress doctrine has been applied under weather conditions similar to those that prevailed here (see Sherman v New York State Thruway Auth., supra [ice storm night before with intermittent wintry mix of snow, sleet, rain, and still raining when plaintiff slipped/fell on patch of ice]; Harvey v Laz Parking Ltd. LLC, 128 AD3d 1203, 1203-1204 [3d Dept 2015] ["misty drizzle" falling at time of accident "kind of like freezing rain"]; Sevilla v Calhoun School, Inc., 127 AD3d 446 [1st Dept 2015] [slip/fall during freezing rainstorm in progress]; Grinnell v Phil Rose Apts., LLC, 60 AD3d 1256 [3d Dept 2009] [about 1" of intermittent light snow from midnight to 3:00 p.m., with most significant portion during night as ice, but still snowing lightly with light drizzle at time of accident at 1:30 p.m.]; Micheler v Gush, 256 AD2d 1051 [3d Dept 1998] [ice on which plaintiff slipped produced by drizzling rain coupled with falling temperatures which were ongoing at time of accident]).

In Zima v North Colonie Cent. School Dist.(225 AD2d 993 [3d Dept 1996]), plaintiff slipped/fell on a patch of sidewalk ice at 6:30 p.m. Rain had been falling most of day, before switching over to freezing rain at 4:30 p.m. Defendant had salted the walk at 2:30 p.m., 5:00 p.m., and 7:00 p.m. The accident occurred in front of the main entrance to a school where a basketball game was scheduled to take place that evening. The Third Department found that even though "it is clear that no major winter storm occurred at the time of the accident, the undisputed proof sufficiently establishes the existence of an ongoing hazardous weather condition that defendant was under no obligation to correct until a reasonable time after it had ended" (id. at 994).

Similarly, in Jensen v Roohan (233 AD2d 587, 588 [3d Dept 1996]), the storm in progress doctrine was applied where inclement weather began late on the afternoon prior to the accident and lasted until 3:30 a.m. during the overnight period, with a snowfall of 1.1". There then was a lull that lasted until 9:00 a.m., when snow resumed, falling until Noon, with 0.3"-0.4" of additional accumulation. The accident occurred at 11:00 a.m.

In Ruck v ISS Intl. Serv. Sys. (236 AD2d 702, 703 [3d Dept 1997]), a case where freezing rain fell in waves with three lulls, the longest of which was 3 hours, 25 minutes, during which the accident occurred, the Appellate Division, Third Department stated, "[n]otwithstanding these breaks in the precipitation, defendant did not have a duty to remedy the icy condition of the walkway until a reasonable time after the storm had ended" (see also Ioele v Wal-Mart Stores, supra [three-hour lull did not amount to a cessation of storm, which would impose duty on Defendant to clear snow and ice]).

Thus, the Court further concludes that the storm in progress doctrine applies to this Claim. Claimant's slip and fall accident occurred during a period of inclement winter weather conditions, with trace amounts of freezing rain and/or mist falling around the time of the accident. In addition, trace precipitation had been falling for much of the preceding 18 hours or so, with Ms. McSpirit likening it to an overnight ice storm that left a heavy frost. Accordingly, because the inclement weather was ongoing when Ms. Perna fell, the State did not have a reasonable time to alleviate the conditions after the storm ceased. Indeed, the record indicates that the icy conditions largely resolved themselves after the temperature rose above freezing, sometime before 10:00 a.m. By the time PO Trembley retraced Claimant's footsteps sometime after 10:00 a.m., he found the sidewalk and pavement to be mostly dry, with a few moist spots, but no ice.

Moreover, none of the eyewitnesses saw any evidence that the maintenance staff put down sand, salt, and/or ice melt, from which the Court concludes that Mr. Borthwick and Mr. Braidt did not reach the visitors' parking lot by 7:30 a.m. that morning, as was their usual custom and practice. That also means that Defendant did nothing that exacerbated the icy conditions that were created by the ongoing storm. "The record indicates that the icy [sidewalk and pavement] were the result of weather conditions which occurred close in time to the accident itself and claimant has failed to show that the dangerous condition was anything but a direct result of those recent conditions" (Goldman v State of New York, 158 AD2d 845, 846 [3d Dept 1990], appeal dismissed 76 NY2d 764 [1990]).

Finally, even though an event was occurring at the PAC that morning, the State still had a reasonable time after the cessation of the inclement weather in order to alleviate the icy conditions (see Zima v North Colonie Cent. School Dist., supra).

Assuming, arguendo, that the storm in progress doctrine is not applicable in this instance, the Court determines that the Claim still fails because Claimant did not establish that Defendant had notice of the icy condition where Ms. Perna fell. Clearly the State did not create the condition, which was the result of the freezing rain and mist. No evidence was presented to establish that the State had actual notice of the icy condition at the accident site, nor was constructive notice shown. Ms. Martin did observe icy conditions elsewhere on campus when she arrived at 6:45 a.m., but she did not pass by the visitors' lot. Such a general awareness that an icy condition may exist is not sufficient to impute constructive notice of the specific icy condition that caused Claimant to slip and fall (see Piacquadio v Recine Realty Corp., 84 NY2d 967 [1994]; Solazzo v New York City Tr. Auth., supra; Richer v State of New York, 31 AD3d 943, 944 [3d Dept 2006]); Stoddard v G. E. Plastics Corp., 11 AD3d 862, 863 [3d Dept 2004]). Ms. Perna, Ms. McSpirit, and Ms. Robare, each described a thin layer of ice, which Claimant failed to see prior to her fall. Ms. Dennett wasn't sure where she parked, but the glistening icy spots she encountered were not very visible. The Court does not credit Ms. Perna's description of the ice as white because it is inconsistent, to the Court's mind, with her own failure to see the ice before she fell, and the assertion of several witnesses, including herself, that the ice was a thin glaze or layer. Thus, Claimant failed to establish that the icy condition was visible or apparent. Likewise, Claimant failed to establish how long the icy condition was there. As the precipitation was ongoing at the time of the accident, the thin coating of ice could have been created at or near the time Ms. Perna slipped and fell, so that Claimant did not show that the State had sufficient time to discover it. There was no proof of any other slip and fall accidents having occurred at SUNYA that day.

Based upon all the foregoing, the Court concludes that Claimant failed to establish her Claim by a preponderance of the credible evidence and the Claim is dismissed.

All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.

The Chief Clerk is directed to enter judgment accordingly.

August 15, 2019

Albany, New York


Judge of the Court of Claims

1. In this regard, the Court determines that Claimant's assertion at trial to the contrary, that no precipitation was falling, else she would have had her umbrella with her, is simply mistaken.