This claim and motions were transferred from the Honorable Judith A. Hard to
the Honorable Frank P. Milano by Order of the Presiding Judge of the Court of
Claims, the Honorable Richard E. Sise, on August 8, 2006, pursuant to Section
206.3 of the Uniform Rules for the Court of Claims.
Claimant moves pursuant to CPLR § 3212 for summary judgment on the issue
of liability. Defendant opposes the motion and cross-moves for summary judgment
dismissing the claim. Each party’s motion for summary judgment is
Initially, the Court finds as lacking merit the claimant’s objection to
defendant attaching complete deposition transcripts of the defendant’s
witnesses to its papers in opposition. Claimant offered parts of those same
depositions in support of his motion. Further, defendant has provided affidavits
from the relevant witnesses in support of its cross-motion. Finally, the use of
depositions on a summary judgment motion is specifically permitted by CPLR
§ 3212[b] (see, State of New York v Metz, 241 AD2d 192 [1st Dept
1998]; Sipos v Bridgeville Realty Corp., 177 Misc 2d 840 ). The
Court also finds that defendant’s cross-motion was timely made (see, CPLR
Claimant was injured on March 23, 2001 when he slipped and fell in the lobby of
Building 12 at the New York State Office Building Campus in Albany, New York.
Claimant was 49 years old at the time, and had used crutches for walking after
sustaining an injury at the age of 17.
Claimant testified at his deposition that on the day of the incident snow was
melting outside the building and that it was “rainy and wet.” Upon
entering the lobby of Building 12, claimant walked over some “walk-off
mats,” which extended fifteen feet into the lobby and whose function was
to absorb water and dirt brought into the building by pedestrians. Claimant
states in his affidavit that the mats were “saturated” and that
there were “spots of water” on the terrazzo floor.
After walking over the mats, claimant traveled about 85 feet across the
terrazzo floor of the lobby, making sure to avoid wet areas, towards a
power-operated door, designed to allow easy access to handicapped people. As
claimant reached to push the button to open the power-operated door, the tips of
his crutches slipped on what claimant alleges was a wet area of the floor, which
claimant failed to observe as he approached the door. As a result, claimant
fell and struck his head on the floor, sustaining a laceration to the back of
The claim and subsequent pleadings allege that the State was negligent, among
other things, in failing to clean up the wet spots on the floor. Further,
claimant alleges that the State had actual or constructive notice of the unsafe
nature of the wet terrazzo floor on the day of claimant’s injury, as
evidenced by, according to claimant, prior reported falls in the lobby of
Building 12. Finally, claimant alleges that he suffered his injuries solely as a
result of the State’s failure to maintain its premises in a safe
“A motion for summary judgment should be entertained only after the
moving party has established, by competent admissible evidence, that it is
entitled to judgment as a matter of law .... If the movant meets this initial
burden, the opposing party is required to submit evidence which raises a
material issue of fact to preclude an award of summary judgment” (Ware
v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).
Once the moving party has satisfied this obligation, the burden shifts and the
party opposing the motion must demonstrate by admissible evidence the existence
of a factual issue (Svoboda v Our Lady of Lourdes Memorial Hospital,
Inc., 2006 NY Slip Op 05281 [3d Dept 2006]).
Summary judgment is "a drastic remedy" (Lebanon Valley Landscaping, Inc. v
Town of Moriah, 258 AD2d 732, 733 [3d Dept 1999]). It “is the
procedural equivalent of a trial ... and should be granted only when it has been
established that there is no triable issue of material fact” (Harris v
State of New York, 187 Misc 2d 512, 517 [Ct Cl 2001]; see, Paulin v
Needham, 28 AD3d 531 [2d Dept 2006]).
The Court “must view the evidence in the light most favorable to the
party opposing the motion, giving that party the benefit of every reasonable
inference and ascertaining whether there exists any triable issue of fact”
(Boston v Dunham, 274 AD2d 708, 709 [3d Dept 2000]).
The court's role on a motion for summary judgment is issue finding, not issue
determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395,
404 ; Matter of Hannah UU, 300 AD2d 942, 943 [3d Dept 2002];
Schaufler v Mengel, Metzger, Barr & Co. 296 AD2d 742, 743 [3d Dept
2002]) and where a genuine issue of fact exists, the summary judgment motion
must be denied (Fleet Bank v Tiger Racquet Fitness and Exercise Center,
Inc., 255 AD2d 793, 794 [3d Dept 1998]).
Finally, as a general rule, in negligence actions, "the trier of fact is
normally entrusted to resolve factual disputes, to ascertain the reasonableness
of the offending conduct under the circumstances and to determine whether that
conduct was a proximate cause of the alleged injury" (Jones v Egan, 252
AD2d 909, 912 [3d Dept 1998]).
“Having waived its sovereign immunity, the State is subject to the same
rules of liability as apply to private citizens” (Preston v State of
New York, 59 NY2d 997, 998 ). “It is beyond dispute that
landowners and business proprietors have a duty to maintain their properties in
reasonably safe condition” (Di Ponzio v Riordan, 89 NY2d 578, 582
; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [3d
Dept 2004]). However, “[w]hile the State clearly owes a duty to claimants
and others entering upon its property to maintain it in a reasonably safe
condition under the circumstances, it is not obligated to insure against every
injury which may occur” Smith v State of New York, 260 AD2d 819,
820 [3d Dept 1999]).
The State’s liability for a slip and fall is premised upon proof that it
either created the alleged dangerous condition or knew, or in the exercise of
reasonable care, should have known that a dangerous condition existed but,
nevertheless, failed to remedy the situation within a reasonable time period
(Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz
v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New
York, 188 AD2d 918, 919 [3d Dept 1992]).
Where there is insufficient proof that the defendant created or had actual
notice of the condition, liability turns on the issue of whether defendant had
constructive notice. “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 v American Museum of Natural History, 67 NY2d 836, 837 ;
see, Moons v Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept
2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept
As the proponent of the motion for summary judgment claimant bears the initial
burden of establishing that a dangerous condition existed, that the State either
created the dangerous condition or had actual or constructive notice of it, that
the State failed to correct the dangerous condition within a reasonable period
of time, and that the dangerous condition was the proximate cause of
claimant’s injuries (Dapp v Larson, 240 AD2d 918 [3d Dept 1997]).
The Court finds that claimant met his initial burden on the motion through his
testimony that he fell due to an accumulation of water on the lobby floor, which
could constitute a dangerous condition. Claimant’s testimony regarding
melting snow, intermittent precipitation, visible water spots on the lobby floor
and saturated walk-off mats on the day of the incident, could serve to
ultimately support a finding of negligence on the part of the defendant.
The burden thus shifts to defendant to show the existence of triable issues of
fact. The Court finds that defendant has done so. Claimant alleges that he
slipped due to accumulated water and that the lobby floor had “spots of
water” at the time of the incident. Conversely, Eric Holm, a property
manager employed by the Department of Labor, who arrived at the scene of the
incident shortly after claimant’s fall, recalls seeing only blood, not
water, on the floor where claimant fell. Mark Polnak, another State employee
that arrived at the scene after the fall, also recalls seeing only blood on the
floor. Given this conflicting testimony, a factual issue exists as to whether
the floor was wet at the time of the incident, which could constitute a
Assuming arguendo that claimant fell due to an accumulation of water on
the floor, there remain triable issues of fact as to whether defendant had
constructive notice of the condition. Claimant initially testified at deposition
(prior to offering a corrective errata sheet) that there were no mats in the
lobby and now offers an affidavit stating that the mats were
“saturated.” Defendant offers proof that it was “standard
procedure” for its employees and agents to “watch for saturation of
the walk-off mats” and to “respond and vacuum the water out of the
walk-off mats” and “mop up any visible water on the floor.” A
trial will determine whether the mats were saturated or not.
Defendant also raises a triable issue as to notice by producing employee
affidavits and testimony setting forth procedures for identifying and
remediating potential “transient” conditions, such as tracked
precipitation during inclement weather.
A trial is also necessary to determine whether alleged prior slipping incidents
involved “physical conditions and circumstances ... substantially similar
to the one at issue” (Malossi v State of New York, 255 AD2d 807-
808 [3d Dept 1998]). It is a question of fact as to whether the number of
reported falls during the five years preceding the incident, when compared with
the amount of pedestrian traffic, would have put a reasonable landowner on
notice of a dangerous condition. The frequency and location of any such falls
must be determined by the finder of fact.
Further assuming that there was water on the floor and that the defendant had
notice of the condition, there still remains a triable issue of fact as to how
long the water was there and whether defendant had a reasonable opportunity to
remedy the condition.
Claimant’s proof on the motion is insufficient to show, as a matter of
law, constructive notice through the alleged recurring condition of water on the
lobby floor (see, Cochetti v Wal-Mart Stores, Inc., 24 AD3d 852, 853 [3d
To the extent Claimant’s position is there is either a generic design
defect or recurring hazard, those too involve triable issues of fact.
There also exists a triable issue of fact as to claimant’s culpable
conduct, if any. Claimant testified that “there was water all over the
place” on the lobby floor and swears that he was “looking
intently” at the floor in order to avoid water spots, but then claims to
have “unknowingly” put both of his crutches in a wet spot, causing
him to fall.
The claimant’s motion for summary judgment is denied.
Defendant bears the initial burden on its cross-motion to “establish as a
matter of law that [it] maintained [its] property in a reasonably safe manner,
had no notice of a dangerous condition and did not create a dangerous condition
which posed a foreseeable risk of injury to individuals expected to be present
on the property” (Salerno v Cara, 28 AD3d 904, 905 (3d Dept
Although defendant has met its initial burden in cross-moving for summary
judgment, for all of the foregoing reasons discussed with respect to
claimant’s motion for summary judgment, as triable issues of fact exist,
defendant’s cross-motion for summary judgment is also denied.