New York State Court of Claims

New York State Court of Claims

DENNIS v. STATE O F NEW YORK, #2001-018-090, Claim No. 100787, Motion Nos. M-62962, M-63032


Case Information

DARRYL DENNIS The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-62962, M-63032
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 12, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant brings a motion seeking summary judgment. Claimant brings a motion

seeking an order directing the Defendant to produce certain documents for in-camera inspection.

The Court has considered the following documents in determining the motions:

Motion No. M-62962

Notice of Motion......................................................................1

Affirmation of Joel L. Marmelstein, Assistant Attorney

General in Support with all exhibits attached thereto...2

Affidavit of Stephen A. Cannon in Support..............................3

Affidavit of Darryl Dennis in Opposition..................................4

Motion No. M-63032

Notice of Motion........................................................................5

Affidavit of Darryl Dennis in Support.......................................6

Reply Affirmation of Joel L. Marmelstein, Assistant Attorney

General with exhibit......................................................7

Reply Letter of Darryl Dennis...................................................8 The claim seeks damages for injuries sustained when Claimant, an inmate at Riverview Correctional Facility, was using the shower in F-2 Dorm on June 5, 1999, when he reached for his towel, slipped on a bar of soap, and hit his face on the edge of a bench. The claim asserts that the floor in the shower area has no mats or non-skid tiles and is constantly flooded with water. Claimant states that the water does not go down the drain, causing the floor to be slippery and that there have been several complaints by other inmates regarding this condition in the past.

Defendant brings this summary judgment motion alleging that there are no questions of fact to be determined; therefore, the claim should be dismissed as a matter of law. Defendant argues that given Claimant's responses to the Demand for Verified Bill of Particulars and his deposition testimony, there is no question that Claimant fell upon a bar of soap in the shower area, not an accumulation of water. (See Marmelstein Affirmation Exhibits C, D, and E) Defendant further asserts that in his discovery responses Claimant has failed to establish the existence of a foreseeably dangerous condition, which the Defendant either created or of which the Defendant had notice.

In support of this, Defendant attaches the affidavit of Stephen A. Cannon, the fire/safety officer at Riverview Correctional Facility on the date of the incident, June 5, 1999. First, Mr. Cannon presents the "Report of Inmate Injury" which Claimant filled out shortly after the incident. In the report, Claimant indicates he was injured when "coming out of [the] shower [he] slipped on soap wearing flip flops." (Exhibit F) Mr. Cannon asserts that he made an effort to determine whether there were any complaints or work orders for work on any portion of the shower room in F-2 Dorm. The only work orders were from April 6, 1998 and October 10, 1998, and both orders related to problems with the water flow out of the shower heads, not water accumulation or a problem with the drainage system. Mr. Cannon surmises, based upon his investigation into complaints and work orders for the shower area in F-2 Dorm, that Claimant fell on a bar of soap trying to reach his towel, not on an accumulation of water.

Claimant asserts that in order to properly oppose the summary judgment motion he needs to have the Court view in-camera the log books for the F-2 Dorm at Riverview Correctional Facility for the six months before and six months after June 5, 1999, arguing that it is in the log books that entries are made upon notice of a problem, and that notice was given on several occasions. Claimant further argues that despite Mr. Cannon's assertions, there was an accumulation of water on the floor of the shower area in F-2 Dorm on June 5, 1999 when he fell. Claimant also submits the affidavit of Eric Williams, a fellow inmate at Riverview Correctional Facility on June 5, 1999. Mr. Williams asserts that in every dorm he has been housed in during his incarceration, the shower floor would flood whenever more than two showers were running at one time. He also asserts that he has never seen any bath mats in the shower area, bathroom areas or by the doorways and that the shower floors are hazardous because they are not made of a non-slip waterproof material nor are the floors channeled to direct the water flow toward the drains.

Summary judgment, as it is often said, is a drastic remedy, depriving the Claimant of the right to proceed to trial to prove his case; as a result the moving party bears a heavy burden of showing entitlement to judgment as a matter of law. (Andre v Pomeroy, 35 NY2d 361; Currier v Wiltrom Associates, Inc., 250 AD2d 956) The Court must view the evidence in the light most favorable to the nonmoving party. (Currier v Wiltrom Associates, Inc., supra) Issue finding rather than issue determination is the role of the Court on a summary judgment motion. (Town Bd. of Town of Ellicott v Lee, 241 AD2d 958)

In this case, the evidence presented, indicates that the shower area at F-2 Dorm consists of a room with shower heads on one wall and on the opposite wall a bench with hooks above it where Claimant had his towel. Claimant had finished his shower and had turned to proceed to the hook on which his towel was hung when he slipped on a bar of soap striking his head on the bench below the towel hook. In Claimant's deposition testimony he attributes his fall to the bar of soap and the absence of a bath mat. In neither his deposition testimony nor his Verified Bill of Particulars, does Claimant attribute his fall to an accumulation of water on the floor. Nor did he attribute water accumulation as a factor in his fall when he signed the Report of Inmate Injury prepared by the Correction Officer and the nurse that treated him on the day of the incident.

Although the Court agrees with the Defendant that Claimant has failed to place in issue water accumulation on the floor of the shower causing his fall, there remains a question of fact as to whether a shower mat was necessary for the premises to be reasonably safe. Defendant cites, Richardson v State of New York, (unpublished decision, J. Bell, filed August 29, 1997, Claim No. 92333) to support its position that because Claimant did not specify any regulation or directive requiring bath mats, his claim that the absence of a bath mat was a factor in his fall must fail as a mater of law. However, Richardson v State of New York, supra, was decided after a trial in which, based upon the evidence presented, Judge Bell found that "[t]he court [was] unconvinced that a shower mat was necessary..." A determination which this Court cannot reach on a summary judgment motion.

Claimant's motion seeking an order directing the Defendant to produce the log books for an in-camera inspection, is unusual and premature. Claimant needs to seek these items through the disclosure devices available in CPLR Article 31 prior to requesting court intervention.

Accordingly, both motions are DENIED.

June 12, 2001
Syracuse, New York

Judge of the Court of Claims