New York State Court of Claims

New York State Court of Claims

CELLERI v. THE STATE OF NEW YORK, #2005-010-033, Claim No. 108583


Synopsis


Claim seeking damages for injuries sustained was dismissed as inmate claimant failed to establish that defendant had either actual or constructive notice of a foreseeable dangerous condition and that the State failed to correct such condition within a reasonable time.

Case Information

UID:
2005-010-033
Claimant(s):
CARLOS CELLERI The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
CELLERI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108583
Motion number(s):

Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
CARLOS CELLERIPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 13, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Claimant seeks damages for injuries that he sustained while he was incarcerated at Sing Sing Correctional Facility (Sing Sing). Claimant testified that on June 24, 2003, he was using the pull-up bar in the B block yard. During the course of his exercise, claimant stepped in a hole and fractured his foot. Claimant acknowledged that he had used the pull-up bar many times and had seen the hole prior to his accident, "but never paid any attention until [he] fell down."[1] According to claimant, the whole yard was damaged.
N. Morris, who has been employed by the New York State Department of Correctional Services (DOCS) since 1968, testified that he has been the Fire and Safety Officer at Sing Sing since 1983. In this position, he is responsible for investigating accidents and reviewing safety reports. He was not aware of any prior accidents in the area at issue nor was he aware of any unusual condition in that area.

Dr. John Perilli has been the Medical Director at Sing Sing since December 1999. He reviewed
claimant's ambulatory health record. Perilli testified that claimant was seen in the facility emergency room at 7:45 p.m. on June 24, 2003 for an injury to his right foot. Two days later, an x-ray revealed a nondisplaced fracture at the base of the right metatarsal. He was placed in a soft case and sent for an orthopedic evaluation on July 2, 2003. The consult confirmed that he had a pseudo-jones type fracture. Claimant was given crutches for two weeks. Care continued with follow-up appointments at Sing Sing and the Coxsaxie Correctional Facility. By October 30, 2003, claimant could resume all regular activities. The last time he was given any medication related to his foot was January 13, 2004.
It is well established that "[t]he State just as any other party *** is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived" (
Flaherty v State of New York, 296 NY 342, 346). With respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241).
The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (
see Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874). In order to prevail on his claim, claimant must show: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955).
In the instant case,
claimant failed to establish that defendant had either actual or constructive notice of a foreseeable dangerous condition and that the State failed to correct such condition within a reasonable time. Thus, claimant has failed to meet his burden of proof. Defendant's motion to dismiss, upon which decision was reserved, is now GRANTED.
LET JUDGMENT BE ENTERED DISMISSING CLAIM NO. 108583.


June 13, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]All quotations are to the trial notes or audiotapes unless otherwise indicated.