New York State Court of Claims

New York State Court of Claims

HOLZER v. THE STATE OF NEW YORK, #2000-016-115, Claim No. 90709


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):

Alan C. Marin
Claimant's attorney:
Adela Holzer
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Janet Polstein, AAG
Third-party defendant's attorney:

Signature date:
January 9, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This decision follows the trial of Adela Holzer's claim for injuries caused by a locker which fell on her at Parkside Correctional Facility in Manhattan.
The issue of liability was tried November 2, 2000; other than the claimant herself, no witness was called by either party.
As of February, 1993 Ms. Holzer had been at Parkside Correctional for a number of months. She was in a work release program and would return to the facility by the early evening. According to the claimant, the lockers were loosely assigned, and she was never given a padlock or the key. At about 8 p.m. on February 22, 1993, Holzer went to the locker where she believed she had stored her large bag.

According to claimant's trial testimony, the locker fell or tipped over when she opened it. Her deposition testimony of March 1997 is not inconsistent therewith; nor is her statement made at the time of the accident (cl exh 2). However, defendant points to the Report of Injury to Inmate, which suggests she was doing more than simply opening the locker: "Claims while attempting to move her locker the locker ‘fell' on her" (cl exh 1). For the Report, claimant was interviewed by a Sergeant V. Hardy.

Defendant made other efforts to undermine Holzer's credibility.
In any event, there is no basis to question the essentials of Holzer's claim - that a locker fell on her and pinned her for a short time at Parkside CF. Nonetheless, Holzer's claim must be measured against some fundamental legal concepts. While the correctional facility has a duty to maintain reasonably safe premises, it is not an insurer, and that an accident occurred does not necessarily implicate liability. Condon v State of New York, 193 AD2d 874, 597 NYS2d 531 (3d Dept 1993); Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (1977). In order to establish liability, to prove that the defendant was negligent, it must be shown that a dangerous condition existed which was created by the defendant; or if not so created, that the defendant had notice or should have had notice of. Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996).
Holzer testified that two of the lockers -- there could have been more -- had "crooked legs"; she recalled that these two were wobbling. However, claimant was rather vague on demonstrating that either of the two was the one that victimized her on February 22, 1993. Among other things, as noted above, lockers were not specifically assigned. Claimant, by her testimony or other evidence, did not supply any information to account for the alleged instability of the lockers – did it arise from their manufacture, installation or maintenance? Nor for that matter did claimant attempt to describe the lockers' size, configuration or other features. Moreover, the lockers were constantly in hurried, jumbled use by the inmates; they were not in the exclusive control of the defendant. See, e.g., Raimondi v New York Racing Association, 213 AD2d 708, 624 NYS2d 273 (2d Dept 1995).
As to notice – constructive or actual – no independent source obtains.
There is nothing to that effect in Holzer's one-page narrative statement executed contemporaneously with the accident (cl exh 2). Claimant provides no evidence, for example, as to the placement of the lockers, the assignment of officers or their observations of the interactions of inmates with the lockers that would permit the inference of constructive notice that a locker could tip when opened. See Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986).
At trial, claimant's testimony contained two references to actual notice. Holzer testified that when she
fell, two inmates who helped her up exclaimed "you are the second one hurt...with [this] locker..." The statement is inadmissible hearsay. Claimant also contended that three or four weeks before her injury she informed an officer, a Sergeant Benitez, that there were two or three lockers with crooked legs: "you should do something about it". Again, this was not otherwise confirmed; for example, by a written document such as a log entry made by Benitez. In any event, the claimant bears the burden of proving her case by the fair preponderance of the evidence, meaning that in order for Holzer to prevail on a claim, the evidence that supports her claim must appeal to the trier of fact as more nearly representing what took place than the evidence opposed to her claim (PJI 1:23). This trier of fact cannot so conclude.
* * *

In view of the foregoing, Adela Holzer has failed to prove her case by a preponderance of the credible evidence, and her claim is dismissed. All motions not previously ruled upon are deemed denied.


January 9, 2001
New York, New York

Judge of the Court of Claims