This timely filed action arises out of an incident which occurred on January
14, 1996, when the Claimant, Qing Hong Zhu, sustained injuries from a fall
allegedly caused by an icy walkway at the State University of New York at Stony
Brook (Stony Brook). At the time of the incident, Claimant was a graduate
student at the University in the doctoral program in Economics. He was also a
teaching assistant, receiving a stipend of $9,500 for his services and an
abatement in his tuition of $8,000, for a total benefit package from the State
On January 14, 1996, Stony Brook was on winter break. Some of the facilities
remained open, however, and Claimant had spent most of the day in the main
library doing research. At approximately 4:30 p.m., he proceeded from the
library to the engineering building to make copies of certain materials he
needed for his own research, as well as for the classes he would be teaching
during the forthcoming semester (Transcript, pp. 39 and 41).
Claimant testified that the weather was clear and cold, and no snow had fallen
on the day of the incident. Approximately one week earlier, on January 7 and 8,
there had been a significant snow event during which 18 inches of snow fell.
This resulted in the entire area, not just Stony Brook, being shut down, with
the exception of hospitals and other essential facilities. By January 14, the
University's roads and walkways had been cleared of snow and, given the fact
that the University was on break, the facilities were functioning.
Claimant was wearing sneakers and apparently had been able to walk about campus
without incident up to the time he left the main library to go to the
engineering building which, according to his trial testimony, was a distance of
approximately 100 feet. As Claimant walked along the sidewalk between the
library and the engineering building, he testified that he observed some chunks
of ice on the sidewalk, but did not see any shiny, smooth areas of ice. As he
approached the area where two poles can be seen in the photograph marked Exhibit
2, Claimant testified that he fell to the ground on a sheet of ice. After about
five minutes, he was able to stand up and hobble to the engineering building,
where he found a chair to sit on. A few minutes later, an acquaintance drove
Claimant remained home for the rest of the day and evening. Because of the
pain he was experiencing, he had trouble sleeping. On the following day,
Claimant was taken to the University Hospital, where it was discovered that he
had fractured his right ankle. After being released from the hospital, Claimant
called his attorney and accompanied his attorney's son to the scene of his
accident so that photographs could be taken (see
On cross-examination, several inconsistencies were pointed out between
Claimant's trial testimony and his deposition testimony taken on March 30, 1999.
At his deposition, Claimant testified that he saw "frozen ice" on the walkway
before his fall, but thought he could "pass" around it (Transcript, p. 33).
While Claimant was not confused by the questions posed during his depo-sition or
at trial, he had difficulties expressing himself in English, often using the
same word or words to describe different situations. When Claimant testified
that he saw ice on the walkway, it was apparent that he was actually referring
to chunks of ice and not to the "black ice" which allegedly caused his
After moving into evidence the deposition testimony of Joel Newton, Associate
Director for the west campus facilities (Exhibit 4), and offering the deposition
of Alan D. Ryder, Manager of roads and grounds for the entire campus (Exhibit
The Defendant called two witnesses who generally offered testimony regarding
the removal of snow from the campus, a general plan prioritizing locations to be
plowed, the use of equipment and machinery, and the retention of outside
resources to assist in the removal of snow when necessary. Ms. Provenzano was
the HVAC Manager for the east campus in January 1996. She testified that she
was not allowed to go to her work site on the campus on January 7 and 8 due to
the snow emergency which had been declared. When she returned to the campus on
January 9, she found the parking lots, roadways an walkways passable. She also
observed that snow removal and cleanup was ongoing throughout the campus, even
though the students were not scheduled to return until January 22.
Ms. Provenzano produced records (Exhibits A, B, C, D, E and F) reflecting the
number of hours worked by university employees, as well as employees of two
outside contractors, Olsens Discount Nurseries and North Shore Landscaping, from
January 7, 1996 through January 14, 1996, in the cleanup and snow removal
process. According to Ms. Provenzano, 654 man hours were extended for the
removal of snow from the campus. She was unaware of the snow removal policy for
the campus in 1996 and could not determine from the records contained in
Exhibits A, B, C, D, E and F when any particular area was cleared during the
Michael Bentivegna, a Grade 12 electrician employed by Stony Brook at the time
of the incident, testified that he was involved with the removal of snow from
the campus after the storm had abated in spite of his position as an
electrician. According to Mr. Bentivegna, he and others would assist the ground
crew during regular work hours with the removal of snow from the walkways and
other areas when necessary. He had no information regarding the number of
people involved in the snow removal process or a specific recollection or
knowledge of the particular area where this incident occurred.
At the conclusion of Claimant's testimony, I was concerned by his statements
regarding his employment by the University as a teaching assistant and the
remuneration he received for such employment. It was clear from my questioning
of Claimant that, on the day of the incident, he was preparing not only for the
classes that he would take in the spring, but also for his teaching
responsibilities during the forthcoming semester. In fact, Claimant
acknowledged during trial that he was headed to the engineering building at the
time of his fall to make copies of "some study material, some teaching material"
(Transcript, p. 41). This, of course, raised the specific question of whether
the Court had jurisdiction of this matter in the first instance. The Court
recessed and I conferred with both counsel regarding my concerns. I permitted
Claimant to reopen his case to give additional testimony. Unfortunately, in his
attempt to rehabilitate himself, Claimant actually weakened his credibility as
to this specific issue. I am not convinced that Mr. Zhu misunderstood my
initial questions on this issue, and his responses to the initial questions
impressed me as being more credible than his responses to the questions posed
after the recess.
All employees of the State of New York are covered by the Workers' Compensation
Law (see Workers' Compensation Law §10; Jones v State of
New York, 269 AD 920). Consequently, if an employee of the State is injured
during the course of his/her employment, the sole and exclusive remedy available
to the injured employee is Workers' Compensation (see Workers'
Compensation Law §11).
The State of New York waived sovereign immunity by Section 8 of the Court of
Claims Act. This section, however, explicitly preserved the exclusivity of the
Workers' Compensation Law by providing that nothing contained in Section 8
"shall be construed to affect, alter or repeal any provision of the
[workers'] compensation law" (emphasis added). Consequently, if Claimant
was injured during the course of his employment, he cannot sue the State as a
property owner in this Court (Cunningham v State of New York, 60 NY2d
248; Maloney v State of New York, 3 NY2d 356).
It is equally well-settled that claimants must affirmatively plead and prove
that they are exempt from the exclusivity of the Workers' Compensation Law
(O'Rourke v Long, 41 NY2d 219). Failure to plead the unavailability of
workers' compensation makes dismissal of the claim appropriate and proper
(Corp v State of New York, 257 AD2d 742). The basis of such a dismissal
is CPLR 3211(a)(7) and (e), which allow a motion to dismiss for failure to state
a cause of action to be made at any time, including at the closure of claimant's
proof, as was done in this case.
Further, the only instance when a plenary court may resolve a workers'
compensation issue is when there is a pure issue of law presented (Sormani v
Orange County Community Coll., 240 AD2d 724). If the issue regarding
workers' compensation is factual or involves a mixed question of law and fact,
the issue must first be presented to the Workers' Compensation Board which has
the exclusive jurisdiction to determine factual issues as to whether the
accident arose in the course of the worker's employment (O'Rourke v Long,
41 NY2d 219, supra). A claimant may not unilaterally waive
workers' compensation and bring a plenary action. Rather, only after the
Workers' Compensation Board has made a determination that the accident did not
occur in the course of employment, may a claimant seek redress in this forum
(Cunningham v State of New York, 60 NY2d 248, supra;
Corp v State of New York, 257 AD2d 742, supra).
Based on the record, I am unable to find as a matter of law that workers'
compensation is not applicable herein. Notably, even after I allowed Claimant
to reopen his case to further develop the basis for commencing his action in
this Court as opposed to seeking redress through the remedies provided for in
the Workers' Compensation Law, he failed to convincingly do so. Rather, he
merely augmented the proof originally adduced which caused me to raise the issue
in the first instance.
Accordingly, based on the record before me, I find that the claim must be
dismissed for failure to state a cause of action because Claimant failed to
affirmatively plead and prove the unavailability of workers' compensation
benefits and because there is a mixed question of law and fact regarding the
availability of workers' compensation benefits which must, in the first
instance, be determined by the Workers' Compensation Board before commencement
of an action in this Court.
Were I not to dismiss the claim upon the foregoing grounds, I would be
compelled to dismiss it due to Claimant's failure to prove a prima facie
case of negligence. As previously noted, the campus and the surrounding area of
eastern Long Island had suffered a snow fall of significant and unusual
proportions over January 7 and 8, 1996. The effect of the storm, which
deposited approximately 18 inches of the white stuff over the area, was to
create a state of emergency for the area. Fortunately, Stony Brook was on
winter break and the population of the school was generally limited to staff and
The accident itself occurred one week after this heavy snow fall at a time when
all of the parking lots and walkways had been cleared, allowing normal traffic
to traverse the campus as testified to by both the Claimant and Defendant's
witnesses. The photographic evidence (Exhibit 2), albeit taken the day
following the accident, shows the sidewalk where Claimant fell to be essentially
cleared of snow allowing passage over it. Tellingly, the photograph also shows
discoloration, which the Court finds to be the residue of salt and sand which
had been applied to the walkway after it had been cleared at some point prior to
the fall. Granted, Claimant testified that the walkway was unsanded at the time
of his fall, but his testimony in this regard is belied by the photographic
evidence and by Claimant's earlier testimony that the photograph (Exhibit 2)
fairly depicted the amount of snow and the condition of the sidewalk at the time
of his fall.
When the State acts in a proprietary capacity as a landowner, it is bound by
the same standard of care as a private landowner and must maintain its property
in a reasonably safe condition (Miller v State of New York, 62 NY2d 506;
Preston v State of New York, 59 NY2d 997). The State is not, however, an
insurer of its property and negligence may not be inferred by the mere happening
of an accident (Condon v State of New York, 193 AD2d 874). In order to
impose liability on the State as a property owner, one must prove the existence
of a hazardous condition that the State created or had actual or constructive
knowledge of, but failed to take reasonable steps to correct (Miller v City
of Syracuse, 258 AD2d 947). At the same time, there must be an appreciation
of the problems caused by winter weather (Pappo v State of New York, 233
AD2d 379; Marcellus v Littauer Hosp. Assn., 145 AD2d 680), and as this
Court has noted, the realization that "...it is virtually impossible to clear
all snow and ice from areas... in the wintertime" (Crabtree v State of New
York, Ct Cl, [Claim No. 85882], March 11, 1994, Bell, J.).
The evidence established that Defendant had cleared the area of snow for
passage of pedestrian and vehicular traffic. The mere fact that Defendant may
have failed to remove all of the snow and ice from a walkway does not constitute
negligence (Rector v City of New York, 259 AD2d 319). Claimant failed to
show that the Defendant created the ice patch on which he allegedly fell through
its snow removal and/or sanding and salting operations. Nor was there any proof
that Defendant knew of the existence of the ice on the walkway heading toward
the engineering building before the accident. Indeed, Claimant failed to see
the ice patch and did not realize it was there until he felt the ice underfoot
immediately before he fell (Transcript, p. 19). Finally, there was no proof to
establish the length of time the ice patch had been on this particular walkway.
The meteorological evidence presented in the form of a certified record of the
weather and temperature during the period of the storm up to the time of the
accident (Exhibit 1), at least with expert testimony demonstrating its relevance
to the area of this accident, failed to establish the length of time the ice
patch had been on this walkway (Steo v New York Univ., 285 AD2d 420).
Without evidence as to how long the patch of ice had been in existence, and no
evidence that Defendant had notice of this particular patch of ice, Claimant's
trial evidence simply failed to establish a prima facie case of
The Court now grants Defendant's motion to dismiss made at the conclusion of
Claimant's proof and renewed at the end of trial.
Accordingly, Claim Number 97647 is dismissed.
All other motions not previously ruled upon are now denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.