Defendant's motion to dismiss, treated as one for summary judgment, granted; wet shower floor upon which Claimant allegedly slipped did not constitute a dangerous condition; Additionally, State is immune from liability for discretionary decisions relative to its showers; Claimant's motions to compel discovery and for leave to serve interrogatories denied as moot.
|Claimant short name:||HASSAN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-95054, M-95137|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Eslam Hassan, Pro Se|
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 19, 2020|
|See also (multicaptioned case)|
Pro se Claimant Eslam Hassan filed this Claim on October 2, 2017 for personal injuries sustained as a result of a slip-and-fall in the shower at Marcy Correctional Facility's Residential Mental Health Unit (Marcy RMHU) on August 20, 2017. The Claim alleges that Defendant breached its duty of care and was negligent "for fail[ing] to adequately maintain a safe environment by not placing rubber matts [sic] infront [sic] of the shower and providing shower curtains as is the standard policy and procedure of N.Y.S. DOCCS" (Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, Ex A [Claim] ¶ 2). Moreover, Claimant asserts that Defendant was negligent in failing to provide him shower shoes (see id. ¶ 5). By separate motions, Claimant moves to compel discovery (M-95054) and for leave to serve interrogatories (M-95137). Defendant opposes Claimant's motions, and cross-moves pursuant to CPLR 3211 (a) (7) to dismiss the Claim in that the Claim fails to state a cause of action and is barred by the doctrine of governmental immunity (CM-95198).
By so-ordered letter dated January 30, 2020, the parties were advised that the Court would be treating Defendant's motion as one for summary judgment pursuant to CPLR 3211 (c), and the motion return date was adjourned to afford the parties an opportunity to make additional submissions.(1) Due to the COVID-19 pandemic, the return date of the parties' motions was adjourned to November 18, 2020. The Court has not received any additional submissions from the parties. Because Defendant's motion is potentially dispositive, the Court will address it first.
It is well settled that "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 demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). Once the proponent of a motion for summary judgment has established its prima facie entitlement to judgment as a matter of law, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (id.; see Zuckerman v City of New York, 49 NY2d 557, 562 ). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here, Claimant (see Ruzycki v Baker, 301 AD2d 48, 50 [4th Dept 2002]; Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).
In general, the State has a duty to maintain its property, including its correctional facilities, in a reasonably safe condition (see Preston v State of New York, 59 NY2d 997, 998 ; Basso v Miller, 40 NY2d 233, 241 ; Mosley v State of New York, 150 AD3d 1659, 1660 [4th Dept 2017]). For liability to be imposed, there must be proof that the State either created or had actual or constructive notice of a dangerous or defective condition and failed to take appropriate remedial action (see Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]).
A condition on the property that is inherent or incidental to the nature of the property and can be reasonably anticipated by those using the property will not support a finding of liability (see e.g. O'Neil v Holiday Health & Fitness Ctrs. of N.Y., 5 AD3d 1009, 1009 [4th Dept 2004]; Stanton v Town of Oyster Bay, 2 AD3d 835, 836 [2d Dept 2003], lv denied 3 NY3d 604 ; Csukardi v Bishop McDonnell Camp, 148 AD2d 657, 658-659 [2d Dept 1989]).
Thus, Courts have held that "a wet floor--especially in a bathroom where one can expect some water to make its way out of the shower to the floor--is not enough, standing alone, to establish negligence" (Seaman v State of New York, 45 AD3d 1126, 1127 [3d Dept 2007]; see Barron v Eastern Athletic, Inc., 150 AD3d 654, 655 [2d Dept 2017] ["the mere presence of water in the shower stall basin cannot impart liability to the defendant for the injured plaintiff's fall, particularly since the water was necessarily incidental to the use of the shower stall"]; Jackson v State of New York, 51 AD3d 1251, 1253 [3d Dept 2008]; Sanchez v State of New York, UID No. 2019-018-052 [Ct Cl, Fitzpatrick, J., Aug. 23, 2019]). Claimant must "demonstrate that the amount of water on the shower floor at the time of his fall was unusual such that it created an unreasonably dangerous condition above and beyond that typically encountered in such area" (Jackson, 51 AD3d at 1253).
Additionally, even if the condition was such that it was unreasonably dangerous, there must be some evidence to show that the State created the condition or had actual or constructive notice of the condition (see Keller v Keller, 153 AD3d 1613, 1614 [4th Dept 2017]). "[A] general awareness that the bathroom floor became wet at times . . . would not obviate [a] claimant from the burden of establishing that [the] defendant had actual or constructive notice of the particular condition which allegedly caused (the) claimant's fall" (Rodriguez v State of New York, UID No. 2018-054-059 [Ct Cl, Rivera, J., June 6, 2018] [emphasis added]).
Here, Claimant argues that the wet floor in the shower stall was a dangerous condition, and Defendant's failure to use shower mats, shower curtains, and/or provide shower shoes to alleviate the condition was a breach of its duty to keep inmates reasonably safe (see Claim ¶¶ 2, 5). The Court disagrees. The fact that a shower floor is wet is "necessarily incidental to the use of the shower stall" (Barron, 150 AD3d at 655 [summary judgment for the defendant gym affirmed where plaintiff slipped on wet shower floor]; see also Sanchez, UID No. 2019-018-052; Smart v State of New York, UID No. 2018-029-087 [Ct Cl, Mignano, J., Sept. 13, 2018]). In short, Defendant has established that Claimant slipped on water he knew was present (see Barron, 150 AD3d at 655; Noboa-Jaquez v Town Sports Intl., LLC, 138 AD3d 493, 493 [1st Dept 2016] [holding that liability cannot be premised upon a lack of mats near gym shower where presence of water was necessarily incidental to the use of the area]). Regardless of any purported remedy that Claimant asserts should have been provided by the State, Claimant has failed to provide evidence which supports a finding that the amount of water in the shower area was unusual or created an unreasonably dangerous condition above and beyond that typically encountered, and that the State had notice of same.
Additionally, Defendant has established that it is immune from liability for the facility's discretionary decisions relative to its showers (see e.g. Ford v State of New York, UID No. 2018-029-010 [Ct Cl, Mignano, J., Jan. 29, 2018] [State immune from discretionary decision not to use shower mats]; see also Matter of Doe v Coughlin, 71 NY2d 48, 59  ["(t)he courts traditionally have deferred to the discretion of correction officials on matters relating to the administration of prison facilities"], rearg denied 70 NY2d 1002 , cert denied 488 US 879 ). In opposition, Claimant has failed to establish that Defendant's decisions relative to its showers violated a specific rule or violation.
In sum, the Court concludes there is no issues of material fact and Defendant is entitled to judgment as a matter of law dismissing the Claim. In light of the foregoing, Claimant's motions to compel discovery (M-95054) and for leave to serve interrogatories (M-95137) are denied as moot (see Ryan v State of New York, UID No. 2011-048-010 [Ct Cl, Bruening, J., Dec. 20, 2011]).
Accordingly, it is hereby:
ORDERED that Defendant's Cross Motion No. CM-95198 is granted and Claim No. 130340 is dismissed in its entirety; and it is further
ORDERED that Claimant's Motion Nos. M-95054 and M-95137 are denied as moot.
November 19, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
(1)Notice of Motion to Compel, dated December 10, 2019, with attachments.
(2) Order Permitting Service of Interrogatories, dated December 19, 2019.
(3) Affidavit in Support of Motion for Leave to Serve Interrogatories, sworn to on December 13, 2019, with attachment.
(4) Affirmation of Christopher J. Kalil, Esq., in Opposition to Motion and in Support of Cross Motion, dated January 24, 2020.
(5) So-Ordered Letter, dated January 30, 2020.
(6) Claimant's Letter, received February 20, 2020.
(7) So-Ordered Letter, dated February 24, 2020.
(8) Court's Letter, dated October 6, 2020.
1. The Court was notified of Claimant's change of address by letter dated February 20, 2020. To ensure Claimant received the Court's January 30, 2020 letter, a second so-ordered letter, dated February 24, 2020, was sent to the parties advising that the Court would be treating Defendant's motion as one for summary judgment pursuant to CPLR 3211 (c).