New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2001-019-503, Claim No. 98841, Motion No. M-62448


State's motion for summary judgment denied due to questions of fact in slip and fall case.

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):

Claimant's attorney:
BASCH & KEEGAN, LLPBY: Michelle L. Kimball, Esq., of counsel
Defendant's attorney:
BY: Michael J. Danaher, Jr., Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 17, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for summary judgment pursuant to CPLR 3212 contending this claim has no merit.[1] Claimant opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Claim, filed August 24, 1998.
  2. Notice of Motion No. M-62448, dated September 27, 2000, and filed September 29, 2000.
  3. Affirmation of Michael J. Danaher, Jr., AAG, in support of motion, dated September 27, 2000, with attached exhibits.
  4. Memorandum of Law in support of motion, dated September 27, 2000.
  5. Affirmation of Michelle L. Kimball, Esq., in opposition to motion, dated November 15, 2000, and filed November 22, 2000, with attached exhibits.
  6. Affidavit of Laureen Torres Martinez, in opposition to motion, sworn to October 31, 2000.
  7. Reply Affirmation of Michael J. Danaher, Jr., AAG, in support of motion, dated November 27, 2000, and filed November 29, 2000.
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 prevailing conditions.[2] 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 H).[3] Finally, there is no proof in admissible form before the Court relative to the weather conditions for the pertinent time period.

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 denied.

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.

January 17, 2001
Binghamton, New York

Judge of the Court of Claims

Claimant is advised that future papers should be in compliance with 22 NYCRR 206.5 (b) which states that all filed papers "shall have at least double space between each line".
Claimant does not contest that the photographs submitted by the State were taken by Correction Officer Bedell approximately 15 minutes after this accident on December 28, 1997 (Affirmation of Michael J. Danaher, Jr., AAG, Exhibits G & H), but does dispute their accuracy in depicting the ice she alleges existed on the day of the accident.
It appears both sides agree there were no sidewalks at the point of the fall. One of the State's arguments is that Claimant should have been walking in the middle of the clear roadway, rather than along the edge where snow was piled. Query: if Claimant had been hit by a car while walking in the roadway, would not the State argue she should have been walking alongside the edge?