New York State Court of Claims

New York State Court of Claims

O'BRIEN v. THE STATE OF NEW YORK, #2006-028-501, Claim No. 110005, Motion No. M-70125


Claimant's motion for summary judgment is denied – insufficient


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:
BY: Glenn C. King, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 10, 2006

Official citation:

Appellate results:

See also (multicaptioned case)



The following papers were read on Claimant's motion for summary judgment in her favor on the issue of liability:

1. Notice of Motion and Supporting Affidavit of Matthew J. Kelly, Esq., with annexed Exhibits

2. Supplemental Affidavit of Matthew J. Kelly, Esq., with annexed Exhibit

3. Affirmation in Opposition of Glenn C. King, AAG with annexed exhibits

4. Reply Affidavit of Matthew J. Kelly, Esq.

Filed papers: Claim; Answer

This claim arose on July 16, 2002 on the grounds of Saratoga State Park, when Claimant Joanne O'Brien tripped and fell on an access or handicapped ramp that was part of the sidewalk located between the Saratoga Performing Arts Center (SPAC) box office and the Hall of Springs. Both Claimant and Jeffrey McGreevy, a State employee whose department is responsible for maintenance at the State Park, testified at examinations before trial. On the basis of that deposition testimony and other information, counsel for Claimant now moves for summary judgment in favor of his client on the issue of liability.

At his deposition, Mr. McGreevy produced records of a 1997 incident that had occurred at approximately the same location. According to Claimant's counsel, when the 1997 accident was investigated, a State engineer determined that the area did not meet accepted standards and, at his deposition, Mr. McGreevy "confirmed that the ramp was dangerous" (Kelly Affidavit, ¶7).

Specific reliance is placed on the following statements in Mr. McGreevy's deposition transcript (Kelly Supplemental Affidavit, Exhibit): 1) that the New York State building code and ANSI (American National Standards Institute) require the slope of a ramp to be no more than 20 percent (i.e., 1 foot vertical for every 12 feet horizontal) (id. p 21); 2) that the slope of the handicapped ramp where Claimant fell was steeper than 20 percent and would not meet building code or ANSI standards (id. p 22); and 3) that the State engineer who investigated the 1997 accident found that the curbcut at this ramp did not meet ANSI standards (id. p 29).[1] According to Claimant's counsel, "[s]ince the State had notice of the dangerous condition, and did not repair or modify it, it should be held fully liable [as t]here is no proof that the claimant engaged in any negligent conduct" (Kelly Affidavit, ¶ 7). Defendant opposes the motion on the grounds that the absence of a significant number of prior accidents at the same location raises a question as to whether the curbcut near which Claimant fell was dangerous; that Claimant has not established that any failure of the curbcut to meet certain standards was a proximate cause of Claimant's fall; and that Claimant was also negligent in that she failed to see what was there to be seen and failed to take appropriate corrective measures (King Affirmation, ¶¶ 4-6).

The rule governing summary judgment is well established: "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]), and such showing must be made "by producing evidentiary proof in admissible form" (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The Court's function is to determine if an issue exists and in carrying out this function, the Court must examine the proof in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]).

Summary judgment should not be granted where there is any doubt as to the existence of a material issue of fact (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Matter of Hannah UU, 300 AD2d 942 [3d Dept. 2002]). A proponent's failure to make a prima facie showing establishing its entitlement to judgment showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York University Medical Center, supra 64 NY2d at 853). If, however, the proponent of the motion makes such a prima facie case, the burden then shifts to the party opposing the motion, who "must assemble and lay bare affirmative proof to establish that the matters alleged are real and capable of being established upon a trial" (Izzo v Lynn, 271 AD2d 801, 802 [3d Dept 2000]; see also Hasbrouck v City of Gloversville, 102 AD2d 905 [3d Dept 1984], affd 63 NY2d 916).

In order to make a prima facie case on summary judgment, a claimant or plaintiff must establish each element of the alleged cause of action; a defendant must establish that at least one of the elements of the alleged cause of action cannot be proven (see generally Porello v Longworth, 21 AD3d 541 [2d Dept 2005]; Vrabel v City of New York, 308 AD2d 443 [2d Dept 2003]; Hussey v Leggio Agency, 299 AD2d 690 [3d Dept 2002]). The elements of a cause of action for negligence are "(1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof" (Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]).

"As a landowner, the State has a duty to use reasonable care under the circumstances in maintaining its property in a safe condition" (Colangione v State of New York, 187 AD2d 844, 845 [3d Dept 1992], citing Basso v Miller, 40 NY2d 233, 241 [1976] ). Even if the Court accepts as proven Claimant's contention that the sidewalk curbcut at the location where she fell does not comply with the relevant construction standards, this alone does not establish that the State violated its duty in this instance. Violation of such a standard or regulation may provide some evidence of negligence (see Elliott v City of New York, 95 NY2d 730, 734 [2001] ) but it does not, in and of itself, prove either a breach of the duty to use reasonable care or that the violation proximately caused the Claimant's injury (see e.g. Romanowski v Yahr, 5 AD3d 985, 986 [4th Dept 2004]). Similarly, the existence of a single prior accident that may or may not have occurred at the same location as Claimant's fall and under similar circumstances cannot alone establish that the State had constructive notice of a dangerous condition (Martin v State of New York, 305 AD2d 784 [3d Dept 2003]).

Claimant has failed to establish, by evidentiary proof in admissible form, the elements of the cause of action asserted against Defendant and, consequently, the motion for summary judgment in her favor must fail.

Claimant's motion is denied.

January 10, 2006
Albany, New York

Judge of the Court of Claims

[1] Claimant's counsel also stated in his initial submission that Mr. McGreevy "confirmed that the ramp was dangerous" (Kelly Affidavit, ¶ 7) but modified this in a subsequent submission to reflect that McGreevy said "that the curb cut was steeper than allowed by ANSI standards and that there was no warning sign to pedestrians" (Kelly Reply Affidavit, ¶ 5).