New York State Court of Claims

New York State Court of Claims

RUSSELL v. THE STATE OF NEW YORK, #2000-010-038, Claim No. 93309


Inmate pro se, negligent window maintenance.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 26, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, an inmate proceeding
pro se, seeks damages for the State's alleged negligence in maintaining a plexiglass window in the trailer used for the Family Reunion Program at Sing Sing Correctional Facility ("Sing Sing"). This claim was heard in a unified trial.
Claimant testified that on September 3, 1995, he used his hand to swat a bee that had landed inside the trailer on the plexiglass window. Claimant stated that, when
he struck the bee, his finger was cut by a "razor sharp"[1]portion of the plexiglass window. Claimant went to the infirmary and received medical attention, but he required medical assistance from an outside hospital. Claimant refused to go to an outside hospital because it would interfere with his visit.
Defendant moved to dismiss the claim for lack of jurisdiction based upon claimant's failure to serve the claim upon the Attorney General's office by certified mail, return receipt requested, as required by § 10 and § 11of the Court of Claims Act.[2]
Claimant presented a receipt for certified mail, return receipt requested, date stamped by the post office on October 13, 1995 and a confirmation of delivery to the Attorney General's office date stamped October 16, 1995 (Exs. 1, 2). The receipts predate this claim, dated December 28, 1995, and do not support a finding of proper service of this claim (see, Finnerty v New York State Thruway Auth., 75 NY2d 721). Accordingly, defendant's motion to dismiss, upon which decision was reserved, is hereby GRANTED. (CPLR 3211(a)(2); Adkison v State of New York, 226 AD2d 409; Hodge v State of New York, 213 AD2d 766; Schaeffer v State of New York, 145 Misc 2d 135).
In any event, even if this Court were to consider this claim, there was a failure of proof. It is well established that "[t]he State just as any other party *** is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (
Flaherty v State of New York, 296 NY 342, 346). With respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see, Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241). The State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see, Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874). Claimant must show, the existence of a foreseeable dangerous condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that claimant sustained damages (see, Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955).
Upon the evidence presented, the Court finds that
claimant failed to establish that defendant had either actual or constructive notice of the alleged dangerous condition and failed to remedy it within a reasonable time. Thus, claimant failed to establish that defendant was negligent.

July 26, 2000
White Plains , New York

Judge of the Court of Claims

[1]All quotations are to the trial notes or audio tapes unless otherwise indicated.
[2] The defense was properly raised in defendant's answer.