New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2007-010-046, Claim No. 108076, Motion No. M-73643


Defendant’s summary judgment motion on negligence is denied, med mal branch of motion is granted unless claimant files a certificate of merit within 20 days.

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):

Terry Jane Ruderman
Claimant’s attorney:
Defendant’s attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 5, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on defendant’s motion for summary judgment:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1

Attorney’s Affirmation in Opposition and Exhibits, Memorandum of Law............2

It is undisputed that on May 29, 2003 at approximately 9:30 a.m., claimant, an inmate residing in the Regional Medical Unit (RMU)[1] 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 claim.

“[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.

October 5, 2007
White Plains, New York

Judge of the Court of Claims

[1]. The RMU provides medical and nursing care to inmates with chronic health care conditions and clinical care for inmates at Bedford and the surrounding region.