Attorney’s Affirmation in Opposition and Exhibits, Memorandum of
It is undisputed that on May 29, 2003 at approximately 9:30 a.m., claimant, an
inmate residing in the Regional Medical Unit
at Bedford Hills Correctional Facility
(Bedford) and requiring the use of a quad-cane, was directed by a facility nurse
to carry a bag of garbage to the dumpster at the end of the hall. En route,
claimant slipped and fell on a watery substance on the floor and fractured her
hip. Claimant alleges, inter alia, that defendant was negligent in its failure
to properly equip, clean, inspect and maintain the floor and in its failure to
provide adequate floor coverings. Claimant also alleges at ¶7 of her
claim, “[b]y reason of the said negligence and malpractice of the State of
New York, claimant suffered injuries including a fractured right hip, open
reduction internal fixation, injury to right knee, and leg”
(Defendant’s Ex. A).
Defendant moves for summary judgment dismissing the claim on the ground that
there is no evidence that defendant created the alleged dangerous condition or
had actual or constructive notice of it and that, to the extent claimant alleges
a claim for medical malpractice, claimant had failed to serve and file a
certificate of merit as required by CPLR §3012-a.
In opposition to the motion, claimant submits an affidavit of Dr. Stephan I.
Rosen, who has studied the biomechanics and causes of slips and falls
(Claimant’s Ex. B) and opines that defendant’s floor was a cause of
claimant’s fall and that the floor did not comply with applicable safety
codes requiring slip resistant flooring. Claimant also submits the affidavit of
an inmate who observed water present on the floor for 30 minutes to one and one
half hours prior to claimant’s fall (Claimant’s Ex. C). Claimant
does not offer any opposition with regard to the medical malpractice
“[T]he 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 demonstrate the absence of any material issues of fact. Failure to
make such prima facie showing requires a denial of the motion, regardless of the
sufficiency of the opposing papers” [citations omitted] (Alvarez v
Prospect Hosp., 68 NY2d 320, 324). Thus, it was not claimant’s burden
in opposition to the motion to demonstrate that defendant had actual or
constructive notice of the alleged condition (see Colt v Great Atl.
& Pac. Tea Co., 209 AD2d 294, 295).
Here, there are numerous issues of fact precluding summary judgment
(see Culotta v Smithtown Cent. School Dist., 37 AD3d 755). For
example, there are issues of fact as to: whether there were any code violations
with regard to the flooring (see Lopez v 1372 Shakespeare Ave. Hous.
Dev. Fund Corp., 299 AD2d 230 [constructive notice may be found where there
is a specific statutory violation and a duty to inspect, maintain and repair]);
whether the watery substance was present for a sufficient length of time to
constitute constructive notice (see Huth v Allied Maintenance
Corp., 143 AD2d 634 [witness’s affidavit that she observed spilled
soda on the floor 20 to 30 minutes before plaintiff’s fall raised an issue
of fact as to whether defendant had constructive notice of the spill]); and
whether defendant was negligent in its maintenance of the floor.
Accordingly, defendant failed to establish its entitlement to summary judgment
as a matter of law on the negligence claim and that branch of its motion is
DENIED (see Restrepo v Rockland Corp., 38 AD3d 742 [defendant
failed to establish entitlement to summary judgment as a matter of law
regardless of sufficiency of opposing papers]). To the extent that claimant is
asserting a claim for medical malpractice, it is noted that claimant has not
complied with CPLR §3012-a and that claimant has offered no opposition to
that branch of defendant’s motion directed at the medical malpractice
claim (see Grant v County of Nassau, 28 AD3d 714). Accordingly ,
that branch of defendant’s motion is GRANTED dismissing the claim of
medical malpractice unless, within 20 days of receipt of a filed-stamped copy of
this Decision and Order, claimant serves and files a certificate of merit as
required by CPLR §3012-a.