On December 28, 1997, Claimant avers she was approaching the front gate near
the visitor entrance of the Sullivan Correctional Facility Annex when she
slipped and fell on black ice resulting in personal injuries. Apparently,
Claimant was walking along the side of the road at the time of her accident
because there were no sidewalks. (Affirmation of Michael J. Danaher, Jr., AAG,
Exhibit C, pp 60-61 & Exhibit E, ¶ 5). Claimant alleges the State was
negligent in failing to properly maintain the area for pedestrians.
The State asserts two grounds in support of its motion for summary judgment,
namely that the State did not have either actual or constructive notice of a
dangerous condition and that the premises were maintained in a reasonably safe
condition in light of prevailing conditions. The State urges this Court to find
that no questions of fact exist and that it is entitled to judgment as a matter
of law. The Court declines this invitation for the reasons set forth below.
On a motion for summary judgment, the moving party must present evidentiary
facts that establish the party's right to judgment as a matter of law, while the
opposing party must present evidentiary proof in admissible form that
demonstrates the existence of a factual issue. (Friends of Animals v
Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). Here, the State must
establish that it did not have actual or constructive notice of the allegedly
dangerous condition. (Schleifman v Prime Hospitality Corp., 246 AD2d
789). Constructive notice has been described as requiring "[a] showing that the
condition was visible and apparent and existed for a sufficient period of time
prior to the accident to permit defendants to discover it and take correction
action [citation omitted]". (Boyko v Limowski, 223 AD2d 962, 964).
Furthermore, the Court must accept Claimant's evidence as true and grant her
every favorable inference. (Hartford Ins. Co. v General Acc. Group Ins.
Co., 177 AD2d 1046, 1047).
On the issue of notice, the State relies upon the deposition testimony of
Correction Officers Bedell and Davidowsky to establish there were no prior
complaints of ice and snow in the area of this accident. (Affirmation of
Michael J. Danaher, Jr., AAG, ¶ 16). In this Court's view, however, the
deposition testimony of these officers, individually and combined, is
insufficient to support such a conclusion. For instance, there is a question of
fact as to whether Officer Bedell's position would have even made him privy to
any such complaints, since Officer Davidowsky, Bedell's supervisor, indicated
such complaints were typically routed through the maintenance department.
(Affirmation of Michael J. Danaher, Jr., AAG, Exhibit I, p 12). Both officers
indicated that such complaints would not necessarily come to their attention.
Furthermore, the State's representation that "[t]he sidewalks and walkways were
maintained by inmate work crews in order to provide a clear pathway for their
visitors" (Affirmation of Michael J. Danaher, Jr., AAG, ¶ 17), is an
overstatement of Officer Davidowsky's actual testimony that "[i]nmates take care
of their own walkway for visitors". (Affirmation of Michael J. Danaher, Jr.,
AAG, Exhibit I, p 14). In fact, neither Officer was knowledgeable relative to
the policies and procedures of the maintenance department or, more specifically,
the frequency of inspections, if any; the manner in which inmate crews performed
these maintenance duties; the regularity with which these inmate crews cleared
the gate area; or the last time the area was cleared and/or salted.
Moreover, the State asserts that the photographs taken the day of this accident
show it maintained the gate area and roadway clear of snow and ice in light of
Again, there are too
many unanswered questions. For instance, the submitted portions of Claimant's
deposition testimony create a question of fact as to the exact location of her
fall as represented in the photographs (Affirmation of Michael J. Danaher, Jr.,
AAG, Exhibit C, pp 60-61), as compared to another photograph in question
(Affirmation of Michael J. Danaher, Jr., AAG, Exhibit
Finally, there is no proof in admissible
form before the Court relative to the weather conditions for the pertinent time
In sum, the Court finds that questions of fact still exist relative to the
maintenance department's policies and procedures; the actual location of
Claimant's fall; the actual condition at the accident site; the physical layout
of the visitor entrance including the lack of sidewalks; and the weather
conditions. All of these questions, as well as Claimant's own level of
attention are matters best left for trial. Consequently, the Court finds the
State has failed to establish its right to judgment as a matter of law.
Pursuant to CPLR 3212, the proponent's "[f]ailure to make such showing requires
denial of the motion, regardless of the sufficiency of the opposing papers
[citations omitted]." (Winegrad v New York Univ. Med. Center, 64 NY2d
851, 853). Consequently, the State's motion for summary judgment will be
Finally, it appears Claimant's counsel represented to the Court at an August
23, 2000 conference that she was ready to proceed to trial. As such, Claimant
is directed to file a note of issue on or before March 30, 2001 or, in the
alternative, to advise the Court in writing as to why such a filing is not
possible. The Court notes that this matter has been pending for more than two
years and any requests for additional time to locate witnesses will be reviewed
in the context of the time already lapsed.
Accordingly, in light of the foregoing, it is ORDERED that the State's motion
for summary judgment, Motion No. M-62448, is DENIED.