New York State Court of Claims

New York State Court of Claims

AGRAMONTE v. THE STATE OF NEW YORK, #2003-016-089, Claim No. 104040


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:
Ricardo Agramonte
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Joseph Romani, Esq., AAG
Third-party defendant's attorney:

Signature date:
November 5, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the claim of Ricardo Agramonte, which was tried at Sullivan Correctional Facility. Claimant testified on his own behalf, and defendant called correction officer Jeffrey Hunt and Sullivan physician Wladyslaw Sidorowicz. In his claim, Mr. Agramonte asserts that while carrying out his job as a pantry worker in Sullivan's "D-North" housing unit, he slipped and fell on a mixture of water and baby oil that had accumulated on a set of stairs from a nearby shower room.

Agramonte testified that on April 6, 2000, he was carrying a tray down the stairs at about 5:45 p.m. when he slipped and "broke" his shoulder. Asked how the accident occurred, he stated that there was "steam coming from the shower . . . people coming from the shower. It's water is in there, baby oil, I [slipped] on [the] tile . . ."

Claimant's exhibit 1 is a drawing of the housing area, which shows a shower room and a walkway leading from the showers to the descending set of stairs on which claimant fell. Claimant marked the drawing to show that the baby oil and water were tracked along the walkway and down the entire set of stairs. He also marked the drawing to show that he fell on the second step from the top.

Agramonte testified that after the accident, he told a correction officer about the accident and the officer assigned someone to clean up. He conceded, on cross-examination, that he had not told anyone about the water and oil prior to the accident. He also conceded on cross-examination that he signed a Sullivan "Report of Inmate Injury" form, which lists the cause of his accident as "slipped on wet food on floor."

Claimant recalled that after the accident, he saw facility physician Wladyslaw Sidorowicz, who told him he needed to "go to orthopedics." He was then sent to Albany Medical Center, where x-rays were taken and he received a cortisone injection in his right shoulder. Agramonte said that the injection made him feel better, but "not too much, a little bit." He said that he was told to "continue coming" and was put in "orthopedic therapy" following the accident, adding that he continues to have pain in his shoulder, and cannot engage in sports or "write a letter," although he can do some exercise.
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Correction officer Jeffrey Hunt testified that he was the "feed-up officer" in the D-North housing unit at the time of claimant's accident, although he did not recall the incident. Hunt described the stairs on which claimant fell as made of cement with "gritty stuff . . . that they put on . . . to keep you from slipping and falling." Shown claimant's exhibit 1 drawing, Hunt stated that he did not believe it was possible for there to be baby oil and water on the stairs, as the showers were "at least ten or 12 feet" away. Finally, Hunt testified that inmate showers would have been finished 45-50 minutes prior to the accident and thereafter, "it would have been mopped up anyway."
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Reviewing claimant's medical records, Dr. Wladyslaw Sidorowicz testified that on April 6, 2000, claimant came to Sullivan's medical department and was evaluated by nurses who found no acute condition that required immediate transfer to an outside hospital. They thus scheduled him to be seen by Dr. Sidorowicz on April 10
th. Sidorowicz testified that he examined claimant on that date and did not find any "acute injury," but since Agramonte complained of pain in his upper chest and shoulder, an x-ray was taken. Such came back negative for fractures, but it did show "degenerative changes, like osteoarthritis." Sidorowicz testified that such condition would have been pre-existing, and could not have been caused by claimant's fall.
According to Sidorowicz, claimant was thereafter seen several times because of his complaints of pain, and was referred to a physical therapist for "at least 25 sessions." Because he continued to complain of discomfort and "didn't make progress" with the physical therapy, claimant was referred to an orthopedist, who recommended continued physical therapy and ordered an MRI. Such showed some tendonopathy and bone erosion, but no rotator cuff injury. The orthopedist recommended that claimant refrain from heavy weight lifting, contact sports and strenuous exercise, and continue medication and therapy.
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The State had a duty to maintain reasonably safe premises for claimant at the time of his accident. See,
e.g., Basso v Miller, 40 NY2d 233, 386 NYS2d 564 (1976). However, the State is not an insurer and in order for Agramonte to prevail here, he must prove that defendant was negligent in connection with his accident. See, e.g., Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977). Specifically, Agramonte must prove that he was caused to slip and fall by a dangerous condition, and that such condition was either created by defendant, or that defendant had notice of such condition – be it actual or constructive. See, e.g., Bernard v Waldbaum, Inc., 232 AD2d 596, 648 NYS2d 700 (2d Dept 1996).
Assuming that Agramonte did fall on baby oil and water and that such was a dangerous condition, he failed to prove that defendant either created such condition or had notice of it. With regard to the creation of the condition, as set forth above, Agramonte maintained that the water and oil had been tracked onto the stairs by inmates coming from the shower room. As to actual notice, he testified that he did not notify a correction officer of the condition until after his accident. As to constructive notice, no evidence was offered to imply such.

In view of the foregoing, Ricardo Agramonte has failed to prove defendant's negligence by a preponderance of the evidence. Accordingly, claim no. 104040 is dismissed.


November 5, 2003
New York, New York

Judge of the Court of Claims