New York State Court of Claims

New York State Court of Claims

BRANHAM v. THE STATE OF NEW YORK, #2007-010-055, Claim No. 107649


Inmate slip and fall on wet floor caused by known leaky roof.

Case Information

1 1.The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court has, sua sponte, amended the caption to reflect the only proper party defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Terry Jane Ruderman
Claimant’s attorney:
By: Schneider, Kaufman & Sherman, P.C.Howard Sherman, Esq., Of Counsel
Defendant’s attorney:
Attorney General for the State of New YorkBy: Rachel Zaffrann, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 22, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks damages for injuries he sustained during his incarceration at Sing Sing Correctional Facility (Sing Sing), when, on December 26, 2002, he slipped and fell on a wet spot on the floor in the A block gym. Claimant contends that the wetness was caused by a leak in the roof that existed for over a year prior to his accident. Defendant argues that it has been in the process of repairing the roof since the fall of 2002 and has taken measures to address any water on the gym floor during the repair process. Defendant further noted that its efforts were directed at keeping the gym open during the repairs because providing the inmates with use of the gym was integral to the overall scheme of maintaining order and security of the inmate population in a maximum security facility. The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

Prior to the commencement of trial, claimant brought a discovery motion seeking, inter alia, an adverse inference due to defendant’s failure to produce certain documents. This Court ruled that claimant was entitled to an adverse inference due to defendant’s failure to produce the Monthly Inspection of Facility Reports regarding the area of claimant’s accident (Branham v State of New York, Ct Cl, Jan. 8, 2007, Ruderman, J.,Claim No. 107649, M-72045, UID 2007-010-001). The Court noted that defendant’s own directives mandated that these reports be made and retained for three years and the instant claim was commenced well within that time period, thereby providing defendant with notice that such documents may be relevant at a future trial on the merits. Nonetheless, defendant failed to provide any explanation for its failure to produce the records. Accordingly, an adverse inference was warranted. Claimant testified that, on December 26, 2002, he went to the A block gym for the morning recreation. Claimant spent the time watching television until the inmates were directed to return to their cells. As claimant proceeded toward the gym exit, he walked past the basketball court where a game had just ended. A basketball bounced off the rim, and as claimant tried to retrieve the ball, he slipped and fell to the floor at a distance of three to four feet from the backboard. Claimant maintained that he was not playing basketball at the time of his fall. He further explained that he was asthmatic since childhood and experienced shortness of breath while running; therefore he did not play basketball.

While on the floor, claimant felt water dripping on his head and he observed water slowly dripping from the ceiling. Claimant also observed a two-foot wide puddle around him and felt that his pants and shirt were wet. According to claimant, it was not raining on December 26, 2002, but it had snowed the previous day. Claimant testified that he reported the incident to Correction Officer DeJesus who was stationed at the officer’s platform in the gym. Claimant also testified that he later told Sergeant McNamara about the incident.

The examination before trial testimony of Luis Marcano was received into evidence (Ex. 4). Marcano had been employed at Sing Sing for 25 years as a recreation program leader. He supervised activities in the A block gym and made visual inspections of the area. His testimony revealed problems with leaks in the gym since 2000. On July 6, 2001, Marcano completed a maintenance work request form noting “10th work order on water leaks from roof and exit doorway in A-gym. The water comes in gym and cause [sic] a flood on court and someone is going to get hurt” (Ex. 2). When questioned at his deposition, Marcano explained that the leak was mostly underneath the doorway of the exit door and mid-court and also deep in the corner. According to Marcano, the leak had existed for more than a year and, after a while, he just gave up submitting work orders. As part of his responsibilities, Marcano also made inspections of the gym once a month and completed a New York State Department of Correctional Services (DOCS) Form. In August 2002, he reported “a water leak on the roof coming down to the basketball court” (Ex. 1). In September 2002, he noted, “still have water leak coming down on basketball court. Someone may get hurt again. Morris[2] please put in work order” (id.). Then in his October 2002 inspection report, Marcano reiterated, “Note: Morris the gym’s (A gym) roof still leaks” (id.).

Sergeant John McNamara testified that he has been employed by DOCS for 25 years and has been assigned to Sing Sing for 17 of those years. On December 26, 2002, he was responsible for the A block housing unit and the gym attached to the cellblock. The gym had a full size basketball court and designated areas for weightlifting, watching television or general recreation. An officer-in-charge was posted at a desk and another officer was assigned to a roving patrol. McNamara inspected the gym prior to the 9:00 to 10:45 a.m. recreation period. If he found water on the court, he would delay opening the gym.

On December 26, 2002, McNamara sent a memorandum to Lieutenant R. Laverty reporting that: “the inmate [claimant] stated that he had fallen while playing basketball in the HBA gym. ***. No staff witnessed the accident.” (Ex. C). The Unusual Incident Report noted, “Inmate Branham reported he injured his right wrist while playing basketball in the HBA gym. Staff reported witnessing inmate playing basketball but did not witness inmate actually [sic]” (Ex. B). McNamara also testified that after the accident, claimant said that he fell playing basketball and that he did not mention any water on the floor.[3] According to McNamara, DeJesus also said claimant was playing basketball although DeJesus did not witness the accident.

When shown Marcano’s inspection reports at trial, McNamara testified that he had never seen them before. Nonetheless, he conceded that he had observed water on the floor on numerous occasions, but could not remember how many times. He acknowledged that a wet floor could be slippery for people walking or playing on the court.

William Miller, who is employed by the New York State Office of General Services as a Building Construction Manager II, testified on behalf of defendant. He is responsible for processing work requests for the Rapid Response Unit which is a program to expedite publicly bid contracts. In the fall of 2002, Miller received a request from DOCS to prepare bid documents for a new roof on the A block gym. On January 17, 2003, a contract was signed for the work and the project was completed on April 17, 2003 (T:145, 150).[4]

Correction Officer Raul DeJesus testified that on December 26, 2002 he was the Officer-In-Charge of the A block gym. DeJesus arrived before the gym opened to check safety conditions, pick up any equipment, and to direct inmate porters to mop or sweep the floor if necessary. If a leak were discovered, then DeJesus made an entry in the logbook and notified his supervisor. During the recreation period, DeJesus was stationed at the officer’s desk where he could oversee the entire gym. He also made rounds looking for anything unusual, such as debris or wet spots. If he observed a wet spot, he would dispatch an inmate porter to mop the area.

The logbook on December 26, 2002 indicated that everything was normal and did not reflect claimant’s accident (Ex. A). DeJesus did not recall if he had been notified by claimant of his fall. DeJesus testified as to his normal procedures, but had no specific recollection of December 26, 2002. DeJesus also testified that he never told McNamara that claimant had been playing basketball when he fell and that any reports to the contrary would be a misstatement.

William Lee, Deputy Superintendent of Security at Sing Sing, testified on behalf of defendant. He has been employed by DOCS for over 24 years and has had his current post since September 2004. Lee has worked his way up the ranks from correction officer to deputy superintendent of security. At each level, he received additional training in security matters.

Lee testified that it was not feasible for A block inmates to use any gym other than the one attached to their housing unit. Logistical considerations made it impossible to move inmates through the tunnels and gates to the other gyms at Sing Sing. Lee explained that inmates use recreation periods to reduce pent-up stress and that this was an important component of maintaining order in a maximum security facility. In addition to the opportunity to watch television, iron, and use the telephone, basketball was particularly popular among inmates and there was an expectation that a court would be available to them.

Lee explained that Sing Sing houses many inmates with violent tendencies and that closing the gym for an extended period of time could increase the potential for violence among inmates. He further noted that during the winter months the inmates could not use the outside yard and, therefore, it was even more important to keep the gym open at that time of year despite the ongoing roof repairs. Lee concluded that, as long as Sing Sing had a practice and procedure for mopping the gym before recreation and continuing to monitor conditions, it was prudent to keep the gym open from October 2002 to March 2003 during the ongoing repairs. Even a slow drip did not change Lee’s opinion. He insisted that the best course of action was to clean up any water on the floor.

While Lee emphasized the significance of the basketball court, he conceded that of the approximate 200 inmates in the gym, fewer than 50 would be involved in a basketball game at any given time. He also acknowledged that it would have been possible to close the court without closing the entire gym. He agreed that if the roof and door leaks were present for one to two years, then it would pose a concern.
It is well established that "[t]he State - just as any other party *** is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived” (Flaherty v State of New York, 296 NY 342, 346) and with respect to the safety of persons on its property, the duty of the State is one of reasonable care under the circumstances (see Miller v State of New York, 62 NY2d 506, 513; Preston v State of New York, 59 NY2d 997, 998; Basso v Miller, 40 NY2d 233, 241). The State, however, is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851; Condon v State of New York, 193 AD2d 874).

In order to prevail on his claim, claimant must show: the existence of a foreseeably dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of claimant's accident; and that claimant sustained damages (see Gordon v American Museum of Natural History, 67 NY2d 836; Ligon v Waldbaum, Inc., 234 AD2d 347; Mercer v City of New York, 223 AD2d 688, affd 88 NY2d 955).

Upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that defendant indeed had notice of the water leaking from the gym roof and the risk it posed to those using the basketball court. This is not a case of a mere “ ‘general awareness’ that a dangerous condition may be present” (cf. Piacquadio v Recine Realty Corp., 84 NY2d 967, 969). Rather this case presents evidence establishing that defendant had notice of a specific problem with a leaky roof in the gym which posed a clear and particular risk to those using the basketball court. In addition to the adverse inference imposed by defendant’s failure to produce the Monthly Inspection of Facility Reports which were mandated by defendant’s own directives to be retained for three years, the reports of Correction Officer Marcano clearly document the continued problems of water leaking from the gym roof and onto the basketball court. The August 2002 report notes, “a water leak on the roof coming down to the basketball court” (Ex. 1). The September report cautioned, “still have water leak coming down on basketball court. Someone may get hurt again. *** please put in work order” (id.). Marcano’s October report stated, “Note: *** the gym’s (A gym) roof still leaks” (id.).

The Court found the testimony of claimant to be forthright and credible with regard to the happening of the accident.[5] To the contrary, the Court found the testimony of Correction Officer McNamara to be calculated and less than convincing. Further, McNamara’s testimony was discredited by Correction Officer DeJesus who testified that he never told McNamara that claimant had been playing basketball when he fell and that any reports to the contrary would be a misstatement. While the Court permitted the deputy superintendent of security to testify regarding his opinions as to the appropriateness of keeping the basketball court open during the roof repairs despite the ongoing water problem it presented, the Court accorded his testimony little weight. Notably, while he conceded that a leaking roof for one to two years posed a concern, he maintained that the best course of action was to keep the gym open and clean up any dripping water. Claimant’s fall, however, weighs to the contrary. Additionally, the deputy acknowledged that it would have been possible to close the basketball court without closing the entire gym. That option, however, was not exercised nor did the deputy address the possibility of providing the inmates with the ability to play half-court games of basketball.

In sum, the Court finds that defendant was negligent in its maintenance of the area of the gym which posed a specific risk to inmates using the basketball court. The Court finds that defendant had knowledge of this specific risk and yet failed to take reasonable measures to address the risk posed while defendant endeavored to effectuate the repair of the roof. The Court finds defendant’s negligence to be a proximate cause of claimant’s fall.

Accordingly, the Court finds defendant to be 100 percent liable for claimant’s accident. A trial on the issue of damages will be held as soon as practicable.


January 22, 2008
White Plains, New York

Judge of the Court of Claims

[2]. In 2002, Morris was the Fire Safety Inspector at Sing Sing. Marcano had testified at the trial of David Patterson concerning his May 19, 1999 fall on a wet floor in the A block gym at Sing Sing (Patterson v State of New York, Ct Cl, Sept. 30, 2003, Ruderman, J., Claim No. 101889, UID 2003-010-028).

[3]. McNamara maintains that the other correction officer assigned to the gym said there was no water on the floor on the date in issue; McNamara, however, could not recall the officer’s name.
[4]. References to the trial transcript are preceded by the letter “T.”
[5]. The Court did not find persuasive defendant’s argument that no one else had fallen on the court prior to claimant’s fall at the end of the recreational period. Indeed, it is noted that claimant’s fall was not properly recorded by defendant and, therefore, it is just as plausible that there may have been other falls prior to claimant’s which went unrecorded.