Defendant's motion for summary judgment dismissing the claim was granted as the claimant was unable to state what caused him to slip and even if it could be concluded that he slipped on ice, defendant demonstrated it had neither actual nor constructive notice of the danger.
|Claimant short name:||MELTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Law Office of David G. Goldbas
By: Colin LaReaux, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Thomas P. Carafa, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 16, 2021|
|See also (multicaptioned case)|
Defendant moves for summary judgment dismissing the claim on the grounds, among others, that claimant is unable to identify the cause of his fall and, in any event, the defendant lacked both actual and constructive notice of the danger.
Claimant seeks damages for injuries allegedly sustained when he slipped and fell on ice on the front walkway of a State-operated community residence located at 22 Main Street, Yorkville, New York. The accident allegedly occurred during the course of delivering newspapers at approximately 3:30 a.m. on March 16, 2018. Claimant testified at a deposition that he could not recall seeing any ice on the walkway as he was walking to the house, but slipped and fell on the walkway while returning to his vehicle (defendant's Exhibit D, pp. 34-36). With respect to the cause of his fall, the claimant testified as follows:
"Q. Did you ever learn what it was that you slipped on?
Q. Before you fell, did you ever see anything that caused you to slip?
Q. Did anyone, other than your lawyers, tell you what it was that caused you to slip?
A. No" (defendant's Exhibit D, p. 37).
In opposition to the defendant's motion, claimant contends, first, that claimant's testimony to the effect he "slipped" was a sufficient factual predicate from which the Court may infer that he slipped and fell on ice (Affirmation of Colin LaReaux, ¶ 24). In addition, claimant contends the defendant had constructive notice of the icy condition of the sidewalk because on March 7, 2018, nine days before his accident, defendant complained to its snow-removal contractor about its poor performance around the back entrance to the facility and its failure to use rock salt at that location. In addition, defendant's log book indicates that it requested its snow-removal contractor to apply salt to the driveway and parking area the day before the accident, and performed the work itself when the contractor failed to respond. In addition to the driveway, the defendant's logbook indicates it applied salt to a "sidewalk spot" (claimant's Exhibit 2, logbook entry for March 17, 2018).
The State, as landowner, " 'must act as a reasonable man in maintaining his property 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' " (Preston v State of New York, 59 NY2d 997, 998 , quoting Basso v Miller, 40 NY2d 233, 241  [other citation omitted]; see also Gonzalez v State of New York, 60 AD3d 1193 [3d Dept 2009], lv denied 13 NY3d 712 , rearg denied 15 NY3d 820 ; Mesick v State of New York, 118 AD2d 214, 216-217 [3d Dept 1986], appeal denied 68 NY2d 611 ). "Ordinarily, a defendant moving for summary judgment in a [slip]-and-fall case has the burden of establishing that it did not create the hazardous condition that allegedly caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it" (Ash v City of New York, 109 AD3d 854, 855 [2d Dept 2013]; see Gordon v American Museum of Natural History, 67 NY2d 836 ; Reid v State of New York, 61 AD3d 1063, 1064 [3d Dept 2009]; Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]). An additional basis for summary judgment exists where a claimant is unable to identify the cause of his or her fall (Carrasquillo v Dedoto, 191 AD3d 755 [2d Dept 2021]; Stoller v Purchase Community, Inc., 161 AD3d 807 [2d Dept 2018]). Dismissal is appropriate in such a case because "[i]f a [claimant] is unable to identify the cause of a fall, any finding of negligence would be based upon speculation" (Conners v LMAC Mgt. LLC, 189 AD3d 2071, 2072 [4th Dept 2020] [citation and internal quotation marks omitted]; see also Alabre v Kings Flatland Car Care Ctr., Inc., 84 AD3d 1286 [2d Dept 2011]; Rajwan v 109-23 Owners Corp., 82 AD3d 1199 [2d Dept 2011]). Although causation may be established circumstantially (Grande v Won Hee Lee, 171 AD3d 877, 878 [2d Dept. 2019]), "[w]here it is just as likely that some other factor, such as a misstep or a loss of balance, could have caused a trip and fall accident, any determination by the trier of fact as to causation would be based upon sheer speculation" (Ash v City of New York, 109 AD3d at 855; see also Diaz v City of New York, 190 AD3d 940 [2d Dept 2021]; Segal v Haverstraw Mar. Corp., 176 AD3d 887 [2d Dept 2019]).
Here, claimant testified, without equivocation, that he did not know what caused him to slip, nor did he recall observing ice, snow or any other condition on the walkway which caused him to fall. The fact that claimant testified that he "slipped" is insufficient, standing alone, to conclude that ice on the walkway caused his fall (cf. Weed v Erie County Med. Ctr., 187 AD3d 1568 [4th Dept 2020] [plaintiff testified the entire parking lot was icy and covered with snow and she observed and felt the ice as she was laying on the ground]). As a result, defendant met its burden of demonstrating its entitlement to summary judgment dismissing the claim (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 ).
Even if it could be inferred that the claimant slipped on ice, defendant established through the submission of the deposition testimony of Ramona Gassmann, a Residential Program Specialist at the facility, that it had neither actual nor constructive notice of the alleged icy condition which caused claimant's fall. Proof which establishes no more than a "general awareness" that outdoor areas become wet or icy during inclement weather is insufficient to establish constructive notice of the specific condition causing injury (Solazzo v New York City Transit Auth., 6 NY3d 734, 735 , citing Piacquadio v Recine Realty Corp., 84 NY2d 967, 969 ; see also Rivera v 2160 Realty Co., L.L.C., 4 NY3d 837 ; Gordon v American Museum of Natural History, 67 NY2d 836 ). To prevail in such cases, notice of the particular condition which caused a claimant to fall is required (Krieger v McDonald's Rest. of N.Y., Inc., 79 AD3d 1827, 1829 [4th Dept 2010], lv dismissed 17 NY3d 734 ; Kaplan v DePetro, 51 AD3d 730, 731 [2d Dept 2008]; Stoddard v G.E. Plastics Corp., 11 AD3d 862, 863 [3d Dept 2004]). The existence of icy patches without notice or proof of their origin is insufficient to establish a prima facie case of negligence (Simmons v Metropolitan Life Ins. Co., 84 NY2d 972 ).
Here, Ms. Gassmann testified that the facility is staffed 24 hours per day and employees are tasked with continuously monitoring the sidewalks and walkways for weather-related hazards (defendant's Exhibit F, p. 27). Any weather-related issue with the front walkway where claimant fell would have been recorded in the snow-removal tracking log and no such issues were reported, according to Ms. Gassmann's testimony (defendant's Exhibit F, pp. 34-35; claimant's Exhibit 2). Such proof demonstrates that defendant lacked both actual and constructive notice of the allegedly dangerous condition. In opposition to the motion, claimant points to a complaint recorded on March 7, 2018 regarding the contractor's poor snow and ice removal efforts at the back of the facility. However, claimant's slip and fall occurred on the front walkway of the facility. Absent notice of the particular icy condition that caused the accident, claimant failed to raise a triable question of fact so as to warrant denial of defendant's motion (Zuckerman v City of New York, 49 NY2d 557 ).Accordingly, defendant's motion is granted, and the claim is dismissed.
August 16, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of Motion dated July 8, 2021;
2. Affirmation in Support dated July 8, 2021, with Exhibits A-F;
3. Affirmation in Opposition dated August 2, 2021, with Exhibits 1 and 2.