New York State Court of Claims

New York State Court of Claims

COSTANZO v. THE STATE OF NEW YORK, #2006-028-003, Claim No. 107452


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:
FINKELSTEIN & PARTNERS, LLPBY: Christopher Milliman, Esq.
Defendant's attorney:
BY: Joel L. Marmelstein, Esq.
Assistant Attorney General and
G. Lawrence Dillon, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 3, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


This Claim is for personal injuries which were sustained as a result of a slip and fall at the Marcy Correctional Facility on March 23, 2002. The Trial was bifurcated and the present Decision is determinative of only the issue of liability.

The Claimant, Concettina Costanzo, testified that at the time of the accident she was approximately 93 years old, having been born in August 1908. She and her sister, Grace Bono, and her daughter, "Prudy" Molling, and her husband, Theodore Molling, arrived at the facility on Saturday, March 23, 2002 at about 7:00 p.m. (she was not sure of the exact time). She and her family had come to visit her grandson, Theodore Molling, Jr., as they had every Saturday night since his transfer to Marcy in January 2002.

Mrs. Costanzo testified that she walked from the car, which was parked in a handicapped area, to a building – again, she was not sure of the name of the building. She stated that she used a walker to aid her in walking. She noted that it was snowing at the time of their arrival.

After visiting young Ted, the family began its return to the car – Mrs. Costanzo was not sure what route she took– but was sure that the lights were out. As she walked, due to the darkness, she fell over the curb and on top of her walker. She also admitted that during the two hours of her visit, approximately one or two inches of snow had accumulated.

Mrs. Costanzo's daughter "Prudy" also testified. She stated that the family arrived at 7:00 p.m. on the night of the accident and parked in the handicapped area. Her Aunt, Grace Bono (Claimant's sister), required the use of a wheelchair and had a handicapped placard. They walked to the Visitors Center to deposit the car keys. They used a ramp to access the sidewalk. Next, they went to the Administration Building where they visited Mrs. Molling's son, Theodore.

At 9:00 p.m. the family left the Administration Building. Mr. Molling pushed Mrs. Bono, seated in her wheelchair, to the car, and Mrs. Costanzo followed him. Mrs. Molling testified that she left her mother to go to the Visitors Center to retrieve the car keys. As she left the Center, she saw that her mother had fallen.

Mrs. Molling testified that three of the lights, which lighted the area near the Administration Building, were out. Mrs. Molling stated that they had been out since late January, and that they had not been fixed. She stated that in February she had complained to the guard in the Visitors Center that the lights had been out for a period of time.[1] She stated that she did not know the name of the guard she spoke to, nor did she ask him to make a written report. She testified that she saw the same lights out on each of their visits.

The Claimant's son-in-law, Theodore Molling, also testified. He stated that after they left his son, he pushed Mrs. Bono to the car. He had started to go to another parking lot when he remembered he was parked in the handicapped area. He changed his direction and brought Mrs. Bono to the car and put her inside. As he did so, he heard his wife scream that her mother had fallen. He left Mrs. Bono in the car and helped Mrs. Costanzo.

Mr. Molling testified that the lights had been out since January. He corroborated his wife's statement that she had complained about the condition, and stated that he, too, had complained to a guard in the Administration Building, but could not remember that individual's name.

The Claimant also submitted into evidence the pretrial testimony of Frederick Kopyt, a plant superintendent at Marcy Correctional Facility. He explained the procedure for completing work orders. He stated that they were generally completed within a reasonable amount of time, but if it were an emergency work order, it would be completed the same day.

The State relied on the testimony of Correction Officer John Novier. Officer Novier was a lobby officer in the Administration Building at Marcy Correctional Facility during the period January through April 2002. His tour of duty was the evening shift, covering the period when the Claimant and her family visited her grandson.

He testified that he did not remember any lights being out in the area of the Administration Building during the period January to the end of March 2002. He stated that his station was near the door and he would occasionally go outside to smoke, and had there been lights out, he would have seen them. He also stated that had he seen a light out he would have noted it in his logbook and completed a work order. He stated that there was neither a logbook notation nor a work order signed by him concerning an outage.

Officer Novier also testified that had three lights been out, as testified to by the Claimant's daughter and son-in-law, he would have noted it and tagged it as an emergency, because it would constitute a dangerous condition for walking and also for security.

He also testified that neither the Mollings nor anyone else had complained to him concerning the lights being out.

On cross-examination, it was pointed out to Officer Novier that a work order regarding a single light being out was filed in early February 2002 and might not have been repaired until late February. He stated that he did not recall seeing that light being out.

The law is well settled that in order to establish liability in a case involving a slip and fall, the Claimant must establish by a preponderance of the evidence that a dangerous condition existed, and that either the State created the dangerous condition or had constructive notice of said condition and failed to correct it; and also that the dangerous condition was the proximate cause of the Claimant's injury. (Gordon v American Museum of Natural History, 67 NY2d 836; Dapp v Larsen, 240 AD2d 918).

Here the Claimant contends that the dangerous condition resulted from the failure to have proper lighting. The Claimant also contends that the State had actual notice of the condition and that it failed to take reasonable steps to remedy the condition.

After having heard all of the testimony and reviewed all of the exhibits, the Court finds that the Claimant has failed to prove by the preponderance of the credible evidence that three lights were inoperative at the time of the Claimant's fall.

Correction Officer Novier was clear – despite his failure to recall that one light had been out for a short period approximately one month before the accident – that at no time were three lights inoperative. He was equally clear that at no time had he been approached by members of Claimant's family with complaints about the alleged condition. In support of his testimony the Court has considered that none of the logbooks contained a reference either to the condition or to a complaint made by Claimant's family. Neither did the logs reflect complaints by any of the other visitors who were at Marcy Correctional Facility during the period in question.

Further, Claimant's evidence raised certain questions: the Claimant, an elderly woman who had problems remembering what building she had been in was positive about only one thing – that "there were no lights". She stated that answer again even when she was asked another question not dealing with the lighting conditions– which raised the question as to whether or not her testimony had been coached. Her testimony also contradicted that of her son-in-law on the issue of whether there was only light snow or two to four inches.

Similarly, the testimony of Mrs. Molling conflicted with that of her husband. She testified she left her mother to get the car keys that had been deposited at the Visitors Center, where people were required to leave their car keys. Her husband, however, testified that at the time of the accident he had gone to the car with Claimant's sister and had placed her in the car when he heard Mrs. Costanzo scream. He, therefore, must have had the keys in order to get into the car.

Based upon the foregoing, the Court finds that the Claimant has failed to sustain her burden of proving by the preponderance of credible evidence that the State was negligent and, therefore, finds in favor of the Defendant.

The Claim is dismissed and the Clerk of the Court is directed to enter judgment. All Motions not previously ruled upon are deemed denied.

February 3, 2006
Albany, New York

Judge of the Court of Claims

[1] She only complained once – fearing reprisals against her son if she continued her complaining.