New York State Court of Claims

New York State Court of Claims

MALDONADO v. STATE OF NEW YORK, #2004-018-326, Claim No. 100083


Claimant has failed to establish the State was negligent, the claim is dismissed.

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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: PATRICIA M. BORDONARO, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 26, 2004

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for an injury he sustained while an inmate at Mid-State Correctional Facility (hereinafter Mid-State) on January 29, 1997. The case was bifurcated and this Decision addresses liability only.

Claimant testified that he was housed in the 1-G housing unit at Mid-State for approximately one and one-half years prior to the time of his injury.[1]
On January 29, 1997, Claimant was scheduled to participate in a floor covering program, but it was cancelled so he was sent across the hall to the 1-H Block Housing Unit until the correction officers' shift changed around 3:00 p.m. He had been in the dayroom watching television when he decided to go onto the porch to watch sports on the television there.[2] A correction officer had already unlocked the door to the porch. Claimant went out, walked toward the television set and slipped on a slab of ice. It was later determined that he broke his left ankle.
Much of Claimant's testimony involved describing the porch area. It is a rectangular room with open window areas on the three outside walls. The wall opposite the entry door has three large windows with bars and metal grating. There is no glass or any other material on any of the windows to prevent rain or snow from blowing onto the porch area. The walls to the right and left of the entry door each contain one large window. Below these two windows, and the two windows on the longer wall, are small openings for drainage.

Claimant testified that when he walked onto the porch, the television viewing area was to the left. Benches were placed against the interior wall and perpendicular to it for seating. Claimant entered the porch and walked around the benches. The television was mounted approximately six feet off the ground in the left corner of the room, as one faced the television.

Claimant recalls that it was raining and snowing the day he fell. He testified that because the porch area was open to the elements, snow and rain would build up on the cement floor of the porch. He testified that he was a porter, and it is the porters' responsibility in Housing Unit 1-G to clear their porch area of any ice and snow before the inmates are allowed to use it. Because of this, Claimant expected that any ice or snow on the 1-H porch would have been cleared before the door was unlocked. He saw snow around the edges of the room before he fell, but did not see any ice.

After Claimant fell, he noticed three or four buckets along the same wall as the television; right beside the television and extending to the window. He had, in the past, observed inmates from 1-H fill buckets with water from the slop sink and take them onto the porch. The buckets were used for food storage, although this was in violation of the correctional facility's regulations, and Claimant knew of inmates who had received misbehavior tickets for this conduct.[3]
Claimant surmised, on cross-examination, that the ice on the floor came from these buckets. Claimant did not see anyone bring the buckets out onto the porch on January 29, 1997. At one point, on direct examination, Claimant was asked the following question and gave the following answer:
Q: Okay. On this particular day, at any point in time, either

before or after the accident happened, did you come to

observe what the condition of the floor was where you


A: No.

He later testified that a slab of ice on the floor made him fall. On cross-examination, Claimant said he was looking at the television from the time he entered the porch until he fell. After falling, he noticed that the patch of ice he slipped on was thin.

Claimant called Jay Shankman, Ph.D., an engineering expert and entered the deposition testimony of Rodney M. Hajdasz, Jr.,[4]
on his direct case.
Defendant called Correction Officers Susan LaJudice, Theodore Knapp, Rodney M. Hajdasz, and Thomas Scanlon, as well as their expert, Keith D. Rupert.[5]

The correction officers contradicted Claimant's testimony in a number of areas. When Claimant discussed his duties as a porter, he said he used a shovel to clean the ice and snow off the porch. He testified that the shovel could be used to break up the ice, if necessary. Officer Knapp said he never saw a shovel on the housing units. Because it is a potential weapon, he would be surprised if any shovels were ever used there. Furthermore, none of the Officers have ever seen ice on the porches; nor have the porches ever been closed due to inclement weather.

As for Claimant's testimony about seeing five-gallon buckets on the porch the day he was injured, the correction officers' testimony also called this into question. Officer LaJudice said the buckets were contraband and kept hidden by any inmates that possessed them. Presumably they would not be in plain view on the porch. Officer Hajdasz testified similarly, as did Officer Scanlon.

All of the Officers who were assigned to housing units 1-H and 1-G at the time of Claimant's injury testified that they made regular rounds which included the porch areas during which they checked for dangerous conditions or conditions in need of repair. The officers also testified that none of them had ever known of another inmate slipping and falling on ice on the porch.

Claimant's expert, Dr. Shankman visited the facility on June 18, 2001 to evaluate the porch of 1-H housing unit. On direct examination, Dr. Shankman testified that the floor of the porch had deteriorated from the effects of the elements on the cement. Specifically, there were shrinkage cracks, which measured 1/8 - 1/4 inch, all over the floor and evidence of areas where water had pooled at various times over many years. He opined that water from precipitation would fill the cracks and, if cold enough, would freeze. In areas of pooling or where there was sufficient water in these cracks, areas of ice - perhaps black ice on occasion - would form.

When on his site visit, Dr. Shankman noted paint chips partially blocking the drainage holes which were under four of the five windows of the porch. The fifth window was open to the floor level, and therefore, had no drain. Dr. Shankman opined that improper drainage, including the floor not being pitched and/or a lack of a center floor drain, contributed to the pooling of water and the deterioration of the floor area. In addition, the benches and tables on the porch had cloth on the bottom of the legs. Dr. Shankman testified that he believed that this was to protect them from the elements and the pooling of water. According to Officer Hajdasz, the material on the legs of the tables and benches, seen in the photos in evidence, was there to prevent the floor of the dayroom from being scratched when the furniture is moved from the porch to the dayroom by the inmates. It was applied after the furniture protectors wore off.

Dr. Shankman discussed the pitch of the porch floor and felt that it was inadequate to properly drain off any water that could accumulate on the porch. "I'm saying, we have an open area. Heavy rain coming in that area, heavy snow coming in that area is going to be trapped."[6]
The testimony of the correction officers was that occasionally there would be a dusting of snow or the floor would be wet from rain. There is no evidence that heavy rain or snow ever penetrated the porch. In fact, the only evidence of the weather on January 29, 1997 was from the claimant, and he said it was snowing and raining that day and he saw some snow around the window edges. The evidence does not support the basis for Dr. Shankman's conclusion, that heavy rain or snow accumulated on the porch floor. Furthermore, Dr. Shankman said he measured the pitch of the floor in only one location approximately 16 feet away from the television. This is insufficient to prove that the floor was not pitched appropriately, especially since there are no code requirements for pitch or grading of a porch floor. The State's expert, Mr. Rupert, disagreed with Dr. Shankman, stating that the pitch of the floor was adequate. He also testified that the American Correctional Association, which inspects facilities for fire and safety hazards accredited Mid-State in 1997. No safety violations were found by them in the porch areas.
Dr. Shankman concluded that the State had violated several sections of the New York State Uniform Fire Prevention and Building Code (Title 9, Subtitle S of NYCRR). The code was enacted in 1982, effective January 1, 1984, and the Mid-State facility had been converted from a mental health facility in 1983-1984. It was Dr. Shankman's opinion that "Mid-State Correctional Facility is governed by the cited code and is required to comply with any and all requirements set forth by the New York State Fire Prevention and Building Code."[7]
He felt Subchapter B would apply to the facility as a result of the changes made to it.[8] The sections of the code Dr. Shankman felt were violated by the State were 9 NYCRR §§ 762.1(b); 800.3; 806.1; 806.3; 806.5; 1152.1; and 1245.1(c) and (f).
The State's expert disagreed saying that the State was not required to completely comply with the building code because when the facility changed from a mental health facility to a correctional facility, it was a conversion subject to the provisions of subchapter E of the Code.[9]
Subchapter B applies to new construction. For example, because the fence installed around the facility was a new addition, it must comply with Subchapter B. The porches, however, were not new and were not changed, therefore, Subchapter B does not apply to them. Code provisions 762.1(b), 800.3, 806.1, 806.3 and 806.5 are all contained in that subchapter so, according to Mr. Rupert, are not applicable. Subchapter E allows pre-existing buildings to deviate from the requirements of subchapter B if the building complied with the codes in existence at the time it was constructed.[10] This applies if the cost of conversion or alteration is less than 50 percent of the property value (cf. Lesocovich v 180 Madison Ave. Corp., 81 NY2d 982). It cost approximately $20 million to change the facility from a mental health institution to a correctional facility (both institutional uses) and the value of the property was about $150 million. When asked about the 50 percent rule on cross-examination, Dr. Shankman replied, "Well, as far as I'm concerned with, yes, the cost has something to do with it, but I can't bog my testimony down with financial cost. I'm working on a safety condition"[11] He was unaware of the cost involved in the conversion.
On cross-examination, Dr. Shankman stated that the cracks in the floor that he documented did not structurally compromise the building, although he called them shrinkage cracks, he described them as being caused by the freezing and thawing of water which pooled on the floor from precipitation. Mr. Rupert[12]
also testified that the cracks in the floor were shrinkage cracks but said they occur when the cement is drying and it shrinks. They are not caused by freezing and thawing. Many of the cracks were too minimal to measure; less than 1/16 of an inch.
Dr. Shankman completed his written report without benefit of Claimant's deposition or other specific information. He concluded that Claimant must have fallen in the corner of the porch where mops were hanging because that was the area which appeared to be the most deteriorated. This is the corner farthest from the television set and the location where Claimant said he fell.

Also, on cross-examination, Dr. Shankman was asked about 9 NYCRR § 800.3, one of the sections which he said was violated, which has to do with protecting floors against deterioration. Section 800.3 refers to reference standards elsewhere in the code. Those reference standards all deal with wood foundations, not concrete. Dr. Shankman said his interpretation of that section would include concrete although it is not mentioned in the reference standards.

The sections of the code Dr. Shankman said were violated that were not part of Subchapter B are §1152.1 and 1245.1(c) and (f). Both sections set forth general requirements and apparently neither have ever been successfully used to provide some evidence of negligence. They impose no more obligation on the defendant than the common law as the State has a duty to keep its premises in a reasonably safe condition under the circumstances as does any other property owner (
Basso v Miller, 40 NY2d 233).
The Court does not find that the other sections of the Code (9 NYCRR § 762.1[b]; 800.3; 806.1; 806.3; 806.5) are applicable to the subject porch.

To establish the State's liability, Claimant must prove, by a fair preponderance of the credible evidence, the existence of a foreseeably dangerous condition which caused Claimant's injuries, that the State had either actual or constructive notice of, and failed to remedy within a reasonable period of time (
Piacquadio v Recine Realty Corp., 84 NY2d 967; Gordon v American Museum of Natural History, 67 NY2d 836). The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from an injury producing incident (Killeen v State of New York, 66 NY2d 850, 851; Mochen v State of New York, 57 AD2d 719, 720).
Claimant contends he slipped and fell on thin ice on the porch. He surmises that the ice was either caused by water from contraband buckets placed on the porch by other inmates or the weather conditions that day.

The record is devoid of any evidence that the State had actual notice of the contraband buckets on the porch on that day, or of icy conditions from incoming rain or snow. To establish constructive notice, Claimant must prove that the condition was visible and apparent and that it existed for a sufficient period of time to allow Defendant to discover and remedy it (
see Gordon v American Museum of Natural History, supra at 837).
Claimant did not provide any proof of the length of time the icy condition existed on the porch and there was no evidence indicating how long it had been snowing and raining or whether there had been any accumulation on the porch earlier that day that required clearing. Claimant himself testified that there was no build up of snow except around the edges of the porch and he didn't notice any rain or ice on the floor prior to his fall. Based on the evidence, the Court does not find that a visible condition existed for a sufficient period of time for a State employee to have discovered the problem and remedied it.

The testimony from the correction officers indicated there was no recurring problem of icy conditions on the porches. Actual notice of a specific recurring condition may permit an inference of constructive notice, but the facts do not support that inference here (
Migli v Davenport, 249 AD2d 932; Camizzi v Tops, Inc., 244 AD2d 1002).
As for Claimant's testimony regarding the source of the ice being the buckets of water placed on the porch by inmates, Claimant did not see anyone place the buckets on the porch and there was no evidence as to how long they had been out there. General awareness from prior misbehavior reports that the inmates had previously used buckets in this manner in violation of prison regulations does not establish constructive notice that inmates had placed buckets of water on the porch on the day Claimant was injured (
cf. Wimbush v City of Albany, 285 AD2d 706). Moreover, there was no evidence to suggest these buckets had ever been the source of water or ice accumulation.
Claimant has failed to establish the State was negligent. This claim must be DISMISSED. All motions previously not decided are denied. LET JUDGMENT BE ENTERED ACCORDINGLY.

August 26, 2004
Syracuse, New York

Judge of the Court of Claims

[1]Claimant contradicted this testimony at a later point stating that he had only lived in the G-Housing Unit for approximately three months and only two and one-half weeks prior to his accident (Transcript Volume 1 p. 161, lines 13 - 14; but compare to Transcript p. 168, lines 13 - 23).
[2]Claimant testified that at the time he decided to go out onto the porch and watch television there were no other inmates or people with him in the dayroom.
[3]During Claimant's deposition testimony, used for impeachment on cross-examination (Trial Transcript Volume 1, p. 217, lines 6 - 12) he testified he only learned of inmates using buckets to freeze water on the porch when he fell.
[4]Exhibit 19.
[5]At the beginning of the trial, Claimant moved to preclude Mr. Rupert's testimony for failure of the defendant to timely disclose Mr. Rupert as an expert pursuant to CPLR 3101(d) and for lack of good cause for said failure. The Court allowed the witness to testify on the State's direct case with the trial being adjourned to a later date for cross-examination. Claimant filed a written motion on the issue which was denied (Maldonado v State of New York, unpublished, Cl No. 100083, M-64514, filed September 30, 2002, Fitzpatrick, J.). Due to Claimant's attorney's office having been affected by the September 11, 2001 attacks, the cross-examination of Defendant's expert was delayed until July 7, 2003.
[6]From Trial Transcript Volume II, p. 326.
[7]Exhibit 24, Dr. Shankman's report, p. 4.
[8]Subchapter B is entitled "Building Construction."
[9]Subchapter E is entitled, "Conversions, Alterations, Additions and Repairs to Existing Buildings."
[10]Section 1231.1; Lester v Waterman, 242 AD2d 683. There was no evidence to suggest the porches were not constructed in compliance with the applicable building codes existing at the time of construction.
[11]Trial Transcript Volume II, p. 355, lines 18 - 21.
[12]The State's expert made a site visit in July 2001.