New York State Court of Claims

New York State Court of Claims

NOTHHELFER v. THE STATE OF NEW YORK, #2007-029-034, Claim No. 111387, Motion Nos. M-73013, M-73215, CM-73285


(1). Defendant’s motion for summary judgment on premises liability case is denied, because defendant’s submission did not rule out the possibility of constructive notice of the dangerous condition. (2). Defendant’s motion for disclosure of identities of witnesses who were clients at a State facility for the developmentally disabled was denied because defendant did not meet its burden under Mental Hygiene Law §33.13 to show that the need for disclosure significantly outweighed the need for confidentiality and the presumption of confidentiality provided by the statute.

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):
M-73013, M-73215
Cross-motion number(s):
Claimant’s attorney:
Defendant’s attorney:
BRILL & ASSOCIATES, P.C.By: Haydn J. Brill, Esq. and Stephen H. Klausner, Esq.
Third-party defendant’s attorney:

Signature date:
October 12, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


There are three motions currently before the court: defendant’s motion for an order compelling disclosure, claimant’s motion for permission to interpose an amended claim or for permission to file a late claim and defendant’s cross-motion for dismissal on jurisdictional grounds or summary judgment.

Claimant’s motion and defendant’s cross-motion for dismissal arise from the decision in Kolnacki v State of New York (8 NY3d 994 [2007], reversing 28 AD3d 1176 [4th Dept 2006]) which held that a claim which does not set forth the total sum claimed, but otherwise complies with the requirements of Court of Claims Act § 11(b), is jurisdictionally defective and must be dismissed for that reason alone.

The claim herein does not contain a total sum claimed. Subsequent to the Kolnacki decision, claimant moved for permission to amend the claim to add an ad damnum clause or for permission to late file, and defendant cross-moved for dismissal alleging the court lacks jurisdiction because the claim does not contain a total sum claimed.

In response to the Kolnacki decision, the Legislature amended § 11(b) to provide that a total sum claimed need not be set forth “in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death” (L 2007 ch. 606). The legislation applies to all claims pending on or after November 27, 2003. The Assembly Memorandum accompanying the bill (A08692 Memo) states that its purpose was to “conform with established precedent which precludes litigants and courts from engaging in speculation” and that the legislation “should be interpreted as disapproving the result reached in Kolnacki v State of New York.”

Claimant seeks damages for personal injuries allegedly incurred when she tripped and fell on property allegedly owned by the State. The amendment of § 11(b) clearly applies to this case. Thus, neither amendment of the claim nor late filing relief is necessary, and M-73215 and CM-73285, to the extent that it requests dismissal on jurisdictional grounds, are both denied as moot by virtue of the action of the Legislature and the Governor. Defendant may serve a supplemental demand pursuant to CPLR 3017(c) should it desire a statement of the damages sought.

Defendant’s request for summary judgment is based on substantive grounds. Claimant, a case manager at the Keon Center, a facility for the developmentally disabled, was allegedly injured on August 17, 2004 when she tripped and fell on a concrete block while walking with two of her clients from the Center to a State-operated nursing home across the street. Claimant testified at her deposition that she was walking in a grassy area next to a sidewalk on the grounds of the nursing home when she tripped over a concrete block that was partially buried and covered with grass leaving only a small portion protruding above ground level.

Defendant argues that, in order to hold a landowner liable for a dangerous condition on the premises, a claimant must show that the defendant either created the condition or had actual or constructive notice of it, and maintains that claimant has failed to show any of these criteria. Defendant’s statement of the law is indisputable (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Solomon v Loszynski, 21 AD3d 366 [2d Dept 2005]). The contention that defendant is entitled to judgment as a matter of law is based on reference to claimant’s deposition testimony and photographs of the concrete block. Defendant argues that there is no indication, only speculation by claimant, that the block arose from defendant’s construction of the nursing home after the property was conveyed to the State in 1999, that since claimant testified she had not seen the block before nor had anyone told her they had seen it before, a claim based on actual notice “must fail,” and that claimant cannot establish constructive notice, based upon citation of, and analogy to, the facts of three decisions. [1]

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 Univ. Med. Center, 64 NY2d 851,853 [1985]). If and when such a prima facie showing is made, the burden shifts to the opposing party to demonstrate the existence of a material issue of fact (Romano v St. Vincent’s Med. Center of Richmond, 178 AD2d 467 [2d Dept 1991]). If the proponent does not meet the initial burden the motion must be denied, regardless of the quantum and quality of the opponent’s proof in opposition.

As a former Presiding Judge of this court has noted, “[w]hile clear enough in the recitation, these precepts present some awkwardness in the application when a defendant tries to show lack of notice on a motion for summary judgment in a slip-and-fall case; i.e., tries to make a prima facie showing that he did not know about that which it is claimant’s ultimate burden to prove that he actually or constructively knew” (Busanic v State of New York, Ct Cl, Read, J., UID No. 2001-001-015, Claim No. 99300, Mar. 26, 2001). Judge Read went on to note that defendants in such cases are “well-advised “ to supply “affirmative proof that defendant did not have notice” rather than attempting to support a request for summary judgment wholly on identification of alleged deficiencies in claimant’s anticipated proof.

The photographs of the concrete block in question could be supportive of the conclusion that it was visible and in place for a sufficient period of time so that constructive notice could be imputed (compare Curiale v Sharrotts Woods, 9 AD3d 473 [2d Dept 2004]; Lee v Bethel First Pentecostal Church of America, 304 AD2d 798 [2d Dept 2003]). While defendant’s argument that it was located in a relatively remote area of its premises and that the condition of the surrounding area “tends to negate” any duty to have discovered it may well be appropriate at trial, it does not adequately address defendant’s burden on this motion to show its entitlement to judgment as a matter of law (see Indence v 225 Union Ave. Corp., 38 AD3d 494 [2d Dept 2007]). Whether the circumstances surrounding the partially-buried block are such that constructive notice could be imputed is a material issue of fact, inapt for resolution by this motion (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]; Freese v Schwartz, 203 AD2d 513 [2d Dept 1994]). Such circumstances involve neither a transient condition as in the cases cited by defendant, nor a latent defect by its nature not amenable to discovery. Thus, the court cannot conclude as a matter of law that constructive notice is inapplicable, and defendant’s motion for summary judgment is denied.

What is left is defendant’s original motion, requesting an order compelling disclosure of the identities of the two clients of the Keon Center whom claimant was escorting when she allegedly tripped over the concrete block on the grounds of the State nursing home. At her deposition, claimant declined to identify the clients on grounds of confidentiality.

Defendant’s application is governed by Mental Hygiene Law § 33.13, addressing confidentiality of records of persons receiving treatment for mental disability, and by the decision of the Appellate Division in Gunn v Sound Shore Medical Center (5 AD3d 435 [2d Dept 2004]). Mental Hygiene Law § 33.13(c) provides that information, “including the identification of patients or clients . . . shall not be released . . . except . . . pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality.” The executive director of the Keon Center states that the facility is certified by the Office of Mental Retardation and Developmental Disabilities and is thus subject to the quoted statute, and that identification of the clients who were with claimant on the date in question would be tantamount to revealing that these persons are developmentally disabled. He further states that clients at the facility are always guaranteed confidentiality and asserts that the need for disclosure of their identities herein does not outweigh the need for confidentiality.

The facts of Gunn are similar to those herein, except they involved requested disclosure of the identities of witnesses to an accident at a medical facility as opposed to a facility for the treatment of the developmentally disabled. Plaintiff had been injured at a cardiac rehabilitation center and requested disclosure of the names of other patients who may have witnessed the incident. The court held that disclosure of the identities of these potential witnesses was barred by the physician/patient privilege set forth in CPLR 4504(a) because of the nature of the facility where the accident occurred. After noting the general principle that disclosure of a patient’s identity does not, as a general rule, run afoul of the physician/patient privilege, the court nevertheless reversed the trial court’s order directing disclosure, “since disclosure of the patients' names will, in effect, reveal that they were undergoing treatment for cardiac-related conditions” (5 AD3d 435, 437). The court’s decision was influenced by “modern-day legislative trend . . . to protect a medical patient's privacy” as reflected in the Health Insurance Portability and Accountability Act of 1996 (42 USC § 1320d et seq.), with the court noting that although the issue of whether HIPAA prohibited the requested disclosure had not been raised by the parties, its passage supported the conclusion that disclosure of the patients’ identities would violate the physician/patient privilege.

Although the argument supporting non-disclosure in this case at bar arises from the Mental Hygiene Law and not from the physician/patient privilege, the salient factor in Gunn – that disclosure of the fact that a particular individual was receiving treatment at the facility would necessarily involve disclosure of that person’s diagnosis because of the nature of the facility – is also present. The decisions cited by defendant in which similar disclosure of the identities of patients was allowed all involve medical facilities providing treatment for a range of conditions so that the disclosure would not provide an indication of the patient’s diagnosis. Indeed, the court in Rogers v NYU Hosps. Center (8 Misc 3d 730, 733 [Sup Ct, NY Co., 2005]) stated that “a nonparty witnesses' name may be disclosed if revealing the patient's name does not also reveal or lead to a revelation about his/her medical condition or treatment,” and noted that the facility in question provided a wide range of services and that it would be difficult if not impossible to infer the patient’s condition or treatment from the mere knowledge that the patient was receiving treatment there. Such is not the case here, where the requested disclosure would necessarily reveal the individuals’ status as clients at a facility solely for the developmentally disabled.

Applying the statutory standard, the court finds that the need for the requested disclosure does not “significantly outweigh” the need for confidentiality. Without speculating on the competence of the clients to testify, claimant testified that the two clients were walking about 15 feet in front of her when she tripped over the concrete block. Thus it is unlikely that they witnessed her fall. Further, the availability of contemporaneous photographs negates any contention that testimony from the clients is necessary to establish the condition of the concrete block – the extent to which it was either apparent or obscured. The likelihood of obtaining any relevant incremental information from the clients is minimal and under these circumstances, the need for disclosure is outweighed by the strong public policy favoring confidentiality. Thus, the motion seeking to compel disclosure is denied.

October 12, 2007
White Plains, New York

Judge of the Court of Claims

The court read and considered the following papers:

1. Notice of Motion (M-73013), Affirmation and Exhibit.

2. Affirmation in Opposition and Exhibits.

3. Notice of Motion (M-73215), Affirmation, Affidavit and Exhibits.

4. Notice of Cross-Motion (CM-73285), Affirmation and Exhibits.

5. Affirmation in Reply (M-73215) and in Opposition (CM-73285) and Exhibits.

6. Claimant’s Affidavit sworn to June 1, 2007.

7. Defendant’s Reply Affirmation and Exhibits.

8. Claimant’s Further Reply Affirmation.

9. Affirmation in Reply (CM-73285) and in Opposition (M-73215) and Exhibits.

[1].Zuk v Great Atlantic & Pacific Tea Co. (21 AD3d 275, 276 [1st Dept 2005]), involved a plaintiff struck by an out of control empty shopping cart owned by defendant as she walked on a sidewalk adjacent to a strip mall. The appellate court reversed the trial court’s denial of defendant’s summary judgment motion, noting that defendant had submitted evidence that its carts were kept in a secured area and that it had not been notified of any complaints regarding the cart in question being loose, and holding “plaintiff has submitted absolutely no evidence that defendant created the hazardous condition or had actual notice of it. Further, other than plaintiff's speculation to the contrary, there is no evidence how long the cart was out of the corral, or that defendant's employees had time to retrieve it.” Mercer v City of New York (88 NY2d 955 [1996]) and Lewis v Metropolitan Transportation Auth. (99 AD2d 246 [1st Dept 1984]) both involved the dismissal of a case after trial on grounds that the evidence could not support a finding of notice, and are thus inapposite to the question of whether defendant has met its burden on this summary judgment motion.