BARRETT v. THE STATE OF NEW YORK, #2004-016-028, Claim No. 103607
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
Alan C. Marin
Levidow, Levidow and Oberman, P.C.By: Peter LoDuca, Esq.
Eliot Spitzer, Attorney GeneralBy: Michele M. Walls, Esq., AAG
May 19, 2004
See also (multicaptioned
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
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
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
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
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.
* * *
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
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
Mastropolo described the hospital as the "main building" which
"holds the majority of the clients and employees that are employed at
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.
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
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
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
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
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
* * *
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
. All motions not previously ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.
May 19, 2004
HON. ALAN C. MARIN
Judge of the Court of Claims