New York State Court of Claims

New York State Court of Claims

GUERRERO v. THE STATE OF NEW YORK, #2004-034-555, Claim No. 107945, Motion Nos. M-67616, CM-67723


Claimant's motion for summary judgment is denied. Defendant's cross-motion for summary judgment is granted, the claim is dismissed. Claimant failed to refute Defendant's claim of lack of notice of condition upon which Claimant slipped and fell.

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:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 2, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant and Defendant each have sought summary judgment. The Court will grant Defendant's cross-motion and dismiss the Claim. Claimant's motion will be denied.

The Court has considered the following papers in connection with these motions.

1. Claim, verified June 12, 2003, filed June 27, 2003;

2. Answer, verified August 4, 2003, filed August 6, 2003;

3. Claimant's Notice for Discovery and Inspection, verified August 18, 2003, filed August 21, 2003;

4. Notice to Admit to Claimant, dated August 25, 2003, filed August 26, 2003, with attached exhibit;

5. Statement in Reply to Request for Admission, sworn to September 2, 2003, filed September 5, 2003;

6. Notice of Motion for Summary Judgment against Defendant, dated October 30, 2003, filed November 3, 2003;

7. Affidavit in Support of Motion for Summary Judgment of Ignacio Guerrero, sworn to October 30, 2003, with attachments;

8. Cross-Notice of Motion, dated November 28, 2003, filed November 28, 2003;

9. Affirmation of James L. Gelormini, in opposition to Claimant's motion and in support of Defendant's cross-motion for summary judgment, dated November 28, 2003, with attachments;

10. Affidavit of Mitchell Ford, sworn to November 28, 2003, with attached exhibit.

Claimant has sought to recover for injuries allegedly sustained in a fall on August 17, 2002 at Wyoming Correctional Facility. He has premised his Claim and motion upon allegations to the effect that he slipped and fell outside his cubicle in water left behind from mopping. However, he also has responded to a Notice to Admit by affirming the truth of a statement he made on the night of the incident that "he slipped on a piece of ice in his cube and broke his fall with his right arm striking the floor" (Notice to Admit to Claimant, Exhibit 1). That admission does not simply create a factual inconsistency. Rather, in the context of a Notice to Admit his response establishes that fact, and eliminates the need for proof of that fact at trial (Groeger v Col-Les Orthopedic Assocs., 136 AD2d 952 [1988]). "[A] formal admission under CPLR 3123 is conclusive, precludes denial at the trial unless amended or withdrawn pursuant to CPLR 3123 (b), and, at least between the demander and the responder, removes the admitted item from the case . . . and mandates the assumption that the fact is true." (Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3123:1; see also Groeger, 136 AD2d at 952). By reason of his admission the Court is compelled to accept for purposes of these motions that Claimant slipped on a piece of ice within his cubicle, and not in an accumulation of water outside his cell.

There being no claim that Defendant's employees created the ice accumulation in Claimant's cell, any liability on the part of the State would be limited to a failure to take corrective action in response to actual or constructive knowledge of that condition (see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838 [1986]; Smith v May Department Store, 270 AD2d 870 [2000]). "To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant's employees to discover and remedy it." (Gordon, 67 NY2d at 837). In addressing its absence of actual or constructive knowledge, Defendant has submitted an affidavit from the correction officer assigned to the area of Claimant's cubicle at the time of the incident. The officer has attested that he did not observe any ice on Claimant's floor when he made rounds 55 minutes before the fall, and that no mopping was done in that area on that evening. Since Defendant has submitted proof in evidentiary form establishing an absence of notice, it is Claimant's obligation to raise a triable issue of fact in that regard, or demonstrate an acceptable excuse for the inability to tender such proof in admissible form. (CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Claimant has failed to submit any opposition to Defendant's cross-motion, or reply to Defendant's affirmation in opposition to Claimant's motion, even though the Court granted Claimant an extension of time to respond over the objection of Defendant. Therefore, Defendant's cross-motion must be granted, and the Claim dismissed.

The Court lastly notes that even if Defendant had not moved for dismissal, the Court would have been compelled to deny Mr. Guerrero's request for summary judgment, based upon his multiple variations of the circumstances that led to his fall.

Based upon the above, it is

ORDERED, that Claimant's motion for summary judgment is denied. Defendant's cross-motion for summary judgment is hereby granted and the Claim is dismissed. The Clerk of the Court is directed to close the file.

August 2, 2004
Buffalo, New York

Judge of the Court of Claims