New York State Court of Claims

New York State Court of Claims

BARRETT v. THE STATE OF NEW YORK, #2004-016-028, Claim No. 103607


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:
Levidow, Levidow and Oberman, P.C.By: Peter LoDuca, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Michele M. Walls, Esq., AAG
Third-party defendant's attorney:

Signature date:
May 19, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the liability trial of the claim of Pamela Barrett alleging that she slipped and fell on a sidewalk at Creedmoor Psychiatric Center because the defendant had failed to properly clear it of ice and snow. Ms. Barrett's accident occurred on Thursday, January 27, 2000 at Building 70 of the Creedmoor complex in Queens County, a building which housed offices
of claimant's employer - - the Police Department of the City of New York.
Barrett worked a shift that started very early, either from 5 a.m. to 1:30 in the afternoon, or from 6 a.m. to 2:30 p.m.
On that January 27, claimant had completed her shift, went out the main entrance and up the walkway toward the sidewalk along the street, intending to meet a co-worker for a ride home (cl exhs 1-3).
Ms. Barrett explained what happened next:
"I just walked down and turned and I slipped," marking the spot where she fell with a red "X" on the photograph that was admitted as claimant's exhibit 1. Barrett testified that she was carrying only her pocketbook and recalled that she was looking straight ahead. Unsure of when she started that day, claimant fixed the time of her accident as within a half an hour of the end of work, either between 1:30 and 2 p.m., or between 2:30 and 3 p.m. No incident report was submitted, nor did Barrett represent that she had filled one out.
Claimant testified that the condition of the sidewalk in the afternoon of her accident was the same as when she came in to work that morning when it was still dark outside, and that she used the same entrance coming into the building as when she left for the day. Initially, Barrett offered a three-word description of the sidewalk, namely:
"[s]now and ice." When asked to elaborate, she said that: "It was pretty patchy with snow and ice, like it had been walked on," and then, "[i]t was pretty much icy and packed down."
On cross- examination, claimant was perhaps a little less guarded, but still equivocal:
Q. Is it true too that you saw areas that were clear?
A. Not like if it had been plowed, like it had been walked on.
Q. But you - - did you see clear patches at some areas while you were walking along the sidewalk?
A. Yes, some - - you can some, yes.

But back on redirect, the following was elicited:

Q. . . . would you have been able to walk from the front of the building to the location where the accident occurred without ever walking on some snow or ice?
A. No.

Claimant called to the stand Sandra Gines, a co-worker, who testified that when Barrett fell, the sidewalk was "icy and snow . . . [i]t was all ice."
Ms. Gines did not witness claimant's fall, but had seen her lying on the ground right after she fell; there were no witnesses to Ms. Barrett's fall.
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Also testifying at trial were Charles Barber and Philip Mastropolo, employees of the defendant. Mr. Barber had worked in the Grounds Department at Creedmoor since 1988. His current title is senior supervisor of the Grounds Department; in January of 2000, he supervised snow removal for the Creedmoor complex. Mr. Mastropolo, who had worked at Creedmoor since 1981, was placed in charge of the Grounds Department sometime in 2000, although at the time of the January 25, 2000 storm, when asked to assist in snow removal, he held the title of Transportation Superintendent.

Creedmoor covers over 200 acres with about seven miles of pedestrian walkways and a number of paved parking areas, which were the responsibility of the defendant (snow removal on the roadways was handled by the New York City Department of Sanitation). There are 20 buildings in the complex; Building Number 40 is the hospital, with staff and ambulances coming and going around the clock. Mastropolo described the hospital as the "main building" which "holds the majority of the clients and employees that are employed at Creedmoor."
When snow had to be cleared,
the hospital was the priority. Mastropolo testified that at the time of this incident, the number of employees working on snow removal would "usually range between eight and twelve." On defendant's exhibit A, the number indicated by the Transportation Department's daily attendance log for January 25, 2000 was less than eight, but Mastropolo noted that some workers were not on his Department's sign-in sheet and when these snowstorms occur, the response is a result of "cooperation between departments. It's a very, very big campus to handle." Mr. Barber testified that for the snowstorm in question there were twelve employees available from two departments: "We had seven out of the garage, we have five from my department, so you had twelve."
Mastropolo has a specific recollection of the snowstorm that began Tuesday, January 25, 2000: it was the first time he had
assisted another department in snow removal. He recalled that on January 25, all personnel involved in snow removal initially reported to the hospital. Mastropolo continued:
Upon completion of several areas, I took it upon myself to lead four other people down and start opening up the south side campus . . . I opened up the day care center because it's a program that's there for employees. I opened up Hillside Avenue. We opened up the Court Building 70, OGS Building 70, Building 73. We opened up the Faith Chapel. We opened up SNAP. We opened up the Alcoholic Treatment Center.

As to Building 70, Mastropolo specifically recalled the snow removal
operation on the sidewalks and the entranceway leading up to the building. A mechanized piece of equipment, a "V-plow," was used, which pushes the snow to the sides. Tight spots were shoveled by hand. Mastropolo testified that there were back-to-back storms on January 25, dropping five and six inches of snow, and that on the next day:
[W]e followed over the steps of the night previously because when rock salt is applied to certain areas and it melts, it creates an icy condition, so we go back and we re-track where we were. . . So we - - I did basically all of the south side campus over again.

He explained that this second day of work covered Building 70.
The credible testimony shows that the walkways in question were cleared as part of a snow removal plan when 11 inches of snow fell on January 25, 2000. In fact, claimant testified that on January 27, she saw mounds of snow around these walkways. The area
was not only cleared, it was salted to prevent the buildup of ice. Mastropolo can recall that rock salt was applied to all the walkways by a grounds worker, a practice confirmed by Barber. Barrett conceded that she saw salt spread on the sidewalk in question, adding "[i]n some areas, yes."
Mastropolo had, as noted, been well aware of the problem of melting and refreezing. The following exchange was elicited on Ms. Barrett's direct:
Q. What was the weather like on the day of the accident?
A. It was pretty cold.

There are better ways to ascertain the weather; claimant did not offer official US Weather Bureau records, which can be admitted through CPLR 4528. In any event, the burden is on claimant, and she made an inadequate showing that there was subsequent refreezing on the walkways that defendant knew of or should have known of and failed to attend to
No record of any prior accidents was presented. Nor were there any complaints made to defendant about the walkways; at best, Ms. Gines, claimant's colleague, testified that she had complained to someone within the NYC Police Department, perhaps "the administrator at the time", but not to a representative of the defendant.
Claimant had made her way into the building early that morning, when there was no natural light, without difficulty, and did not complain about what she experienced. Ms. Barrett had been employed at Building 70 for about two years as of the date of her fall.
* * *
The State of New York is not an insurer (
Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977)), but it is under a duty to maintain its property in a reasonably safe condition (Clairmont v State of New York, 277 AD2d 767, 716 NYS2d 760 (3d Dept 2000), lv denied 96 NY2d 704, 723 NYS2d 131 (2001)). Such standard "must be applied with the awareness of the realities of the problems caused by winter weather . . ." Marcellus v Littauer Hospital Assn., 145 AD2d 680, 681, 535 NYS2d 224, 225 (3d Dept 1988) (citations omitted).
In this case, the staff at Creedmoor Psychiatric Center took reasonable care to clear ice and snow from the walkways given the number of buildings and miles of walkway. Mastropolo's testimony that eleven inches of snow fell on January 25
was uncontradicted. The staff shoveled - - with machinery and by hand - - and salted, and then went back the second day to check on refreezing; no evidence was adduced that such was necessary on the third day, January 27. Smith v State of New York, 260 AD2d 819, 688 NYS2d 774 (3d Dept 1999). There was no record of prior complaints or accidents at what was apparently a fairly busy entrance (Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Murphy v 136 Northern Boulevard Associates, 304 AD2d 540, 757 NYS2d 582 (2d Dept 2003)); and it was a place that Ms. Barrett had previously negotiated without problem, including that morning and the previous two days. Even were the testimony sufficiently persuasive that there was no clear path to walk on, in view of the foregoing, such would not, by itself, implicate negligence on the part of the defendant. See, for example, Bricca v New York Telephone Company, 37 AD2d 564, 322 NYS2d 585 (2d Dept 1971).
Claimant relies upon the following cases:
Glick v City of New York, 139 AD2d 402, 526 NYS2d 464 (1st Dept 1988); Genen v Metro-North Commuter Railroad, 261 AD2d 211, 690 NYS2d 213 (1st Dept 1999); and Figueroa v Lazarus Burman Associates, 269 AD 2d 215, 703 NYS2d 113 (1st Dept 2000). Such do not comprehend the circumstances obtaining here.
* * *

In view of the foregoing, Pamela Barrett has failed to prove her case by a fair preponderance of credible evidence, and claim no. 103607 is
dismissed. All motions not previously ruled upon are hereby denied.

May 19, 2004
New York, New York

Judge of the Court of Claims