New York State Court of Claims

New York State Court of Claims

ANTONUCCI v. THE STATE OF NEW YORK, #2004-016-035, Claim No. 102900


Claim arising from fall on icy walkway at Stonybrook was dismissed; State had satisfactory snow and ice removal plan.

Case Information

VIRGINIA ANTONUCCI The caption has been amended to reflect that the sole proper defendant is the State of New York.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Alan C. Marin
Claimant's attorney:
Kujawski & DelliCarpiniBy: Jeffrey D. Hummel, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: John M. Shields, Esq., AAG
Third-party defendant's attorney:

Signature date:
June 30, 2004
New York

Official citation:

Appellate results:

See also (multicaptioned case)

This is the decision following the liability trial of the claim of Virginia Antonucci arising from her fall on an icy walkway at the Stony Brook campus of the State University on January 31, 2000, a Monday morning.

Ms. Antonucci testified that she parked her car in the lot behind the Earth and Space Sciences Building, and walked up a set of stairs to the broad walkway pictured in claimant's
exhibit 1. This was a route that claimant was very familiar with: she was on her way to work. Antonucci was employed as a librarian and archivist for the Long Island Library Resources Council, which while not a State entity, is situated in the Stony Brook complex.
Claimant recalled that she had on her eyeglasses, was carrying a pocketbook and wearing
"snow boots." She could not remember having any difficulty walking up the steps from the parking lot. When Antonucci got to the top of the stairs, she "looked ahead . . . and I could see that there was snow there that was packed down and ice and so I was - - when I got to that area, I was very careful . . . it looked as though there was a clearing on the side of it . . . it had started to melt . . ."
Claimant added that she did not see any sand or salt on the walkway. Antonucci began to walk and then at some point,
"my foot went out from under me and I just slid right down." When she looked down, claimant saw "transparent ice," specifically a piece roughly one foot by three feet. When questioned whether this was the ice that caused her fall, she became a little tentative: "It was a little bit, you know, I didn't go exactly onto the clear ice. [I] went on to the - - the - - snow packed ice." The Incident Report filled out by Officer John Ritayik, who testified at trial, provided that the "walkway was covered with large ice patches . . ." Cl exh 2.
Claimant's daughter, Dana Antonucci-Durgan, who at the time also worked for a not-for-profit entity based on the Stony Brook campus, testified at trial that she went to the accident site at noon that day and saw "some snow, some ice. And I did not recall seeing any salt," and when asked, she said she had not seen any sand on the walkway either.
* * *
The State, like any property owner, is under a duty to maintain its premises 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). As a property owner, it will not be held liable in negligence for a hazardous ice or snow condition unless it had actual or constructive notice of its existence (Murphy v 136 Northern Boulevard Associates, 304 AD2d 540, 757 NYS2d 582 (2d Dept 2003),[1] and a reasonable time to discover and remedy the condition (Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Bowen v City University of New York, 294 AD2d 322, 743 NYS2d 119 (2d Dept 2002)).
On Tuesday, January 25, 2000, there was a seven-inch snowstorm and the next day, another inch of snow.[2]
No additional snow fell through the following Monday, when Ms. Antonucci had her accident. With that said, claimant testified that it had rained the night before her accident, and in fact the weather records indicate it rained closer to the time of the accident - - from midnight to 6 a.m. The source therefor is the first page for "Setauket Strong" in claimant's exhibit 5. Such page also contains temperature readings at the nearby Setauket location, although not for Thursday, January 27. But the next four days went through extraordinary temperature ranges, from bitter cold to above freezing: 11 degrees to 40 degrees on Friday; 9 to 38 degrees on Saturday; 8 to 38 degrees on Sunday and for Monday, from 12 to 44 degrees.
Kevin Malone, who at the time of Antonucci's accident was the Manager of Roads and Grounds for the Stony Brook campus (other than the residential areas), took the stand at trial. The University had a 42-page "Snow Removal/Ice Control Plan" (cl exh 3), which, among other things, set priorities; the walkway in question was a Priority I. The Plan has fairly extensive and detailed provisions on sanding and salting (see pages 9 through 11), for example :
Custodial supervisors will ensure sand is maintained in five gallon plastic buckets at building entries/exits and a limited quantity of calcium chloride or ice melt is stocked in each building.

Mr. Malone
stated that since the walkway was sufficiently wide, it was plowed with a truck; for the same reason, what was used to melt the ice - - rock salt mixed with sand and, also calcium chloride - - was dispensed from a truck mount spreader on the back of a pickup truck. He explained that a greater proportion of calcium chloride, as against rock salt (the amount of sand was unaffected), was used when the temperature dropped below 20 degrees.
Malone and his staff were very aware of the freezing and thawing problem, trying to completely remove all snow away from the walks so that it could not melt back onto them. They would
"constant [ly] follow up" on the problem; the Plan required sanding and salting walkways after the storms were over where there were icy conditions.[3] Malone recognized that the walkway would more likely become icy because it was often in the shade of the adjacent building, and the Department's operations accounted for this.
Malone said he had 10 employees in his department available for snow and ice duties and could, when necessary, utilize plumbers, electricians and so forth from the Physical Plant Department. The staff worked overtime when appropriate. For example,
Francis Garske worked 12 hours on Friday, January 28; Wilfredo Garcia was on duty the Saturday and Sunday before the accident; Michael Joachim worked that Sunday and Philip Faust and William Schultz each worked the Saturday. On the morning of Ms. Antonucci's fall, Malone's crew began at 6 a.m. (cl exh 4).
* * *
The State is not an insurer (
Mochen v State of New York, 57 AD2d 719, 396 NYS2d 113 (4th Dept 1977)). In this case, it had a highly satisfactory snow and ice removal plan explained by a credible employee with detailed knowledge of such matters – and to this trier of fact, claimant has not met her burden that defendant varied from the plan. Among other things, I do not accept the testimony of claimant and her daughter as sufficiently credible to show that the area was not salted and sanded. Claimant may not have been in a position to observe; Ms. Antonucci-Durgan said she arrived on the scene at noon. As noted earlier, the high temperature for that day was 44 degrees, and moreover, the daughter's testimony came across as too pat. In any event, such 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)).
There was no record of prior complaints or accidents on this well-trafficked walkway. Claimant testified that she had worked the week before, parked in the same lot every day and safely negotiated the walkway.
Antonucci had to be at work at 9 a.m. and testified that her accident happened at "about ten minutes to nine," maintaining that she was not rushing. However, the Incident Report lists the time the accident was reported as nearly 40 minutes later at 9:27 a.m. (cl exh 2); claimant testified that three students came right over to help her, and at least one of them went into the nearby Earth Sciences Building to call the University Police at once.
* * *
In view of the foregoing, Virginia Antonucci has failed to prove her case by a fair preponderance of credible evidence, and claim no.102900 is
dismissed. All motions not previously ruled upon are hereby denied.

June 30, 2004
New York, New York

Judge of the Court of Claims

[1] Or if in removing the snow, the level of hazard was increased, for example by piling it up inappropriately. Bricca v New York Telepehone Co., 37 AD2d 564, 322 NYS2d 585 (2d Dept 1971).
[2] Def exh A, the "Setauket Strong" entry; claimant did not disagree, using the eight-inch total for the two days in her opening statement.
[3] Id., page 9.