Defendants also demanded particulars as to “each and every statute,
ordinance, law, rule or regulation which it will be claimed that the State of
New York allegedly violated, the manner in which it was violated, and how each
such violation caused or contributed to cause the incident.” Claimant
responded by stating that the particulars were “[t]o be provided during
On October 19, 2006, the Court held another conference, again established a
disclosure schedule, and ordered that disclosure as to liability issues be
completed by January 25, 2007 and that a note of issue and certificate of
readiness be filed by that date.
The parties failed to complete disclosure as directed and a note of issue and
certificate of readiness was not filed as ordered. A further conference was held
on January 25, 2007. The Court ordered that depositions be completed by February
28, 2007 and that a note of issue and certificate of readiness be filed on or
before March 29, 2007.
Once again, disclosure was not completed as directed and a note of issue and
certificate of readiness was not filed by March 29, 2007, as ordered.
Another conference was held on March 29, 2007 and the Court directed claimant
to file a note of issue and certificate of readiness on or before May 17, 2007.
The Court set a trial date of October 16, 2007 and claimant was also ordered to
provide expert disclosure, if any, on or before May 17, 2007. The Court further
ordered that any dispositive motion be made returnable on or before July 25,
Claimant filed a note of issue and certificate of readiness on May 15, 2007,
certifying that there were no expert reports to be filed or exchanged, that
there had been a reasonable opportunity to complete disclosure proceedings, that
there had been compliance with the Court’s conference orders and that the
“action is ready for trial.”
On July 11, 2007 defendants, in compliance with the Court’s order of
March 29, 2007 requiring dispositive motions to be made returnable on or before
July 25, 2007, moved for summary judgment dismissing the claim, with the motion
returnable on July 25, 2007. At claimant’s request, the return date of
defendants’ summary judgment motion was adjourned to September 5, 2007. On
August 24, 2007, claimant served a notice of cross-motion to amend the claim and
bill of particulars to add a new theory regarding defendants’ notice of
the alleged dangerous condition.
Defendants’ motion for summary judgment alleges that they did not have
notice of the complained of condition for such a period of time as to allow
correction or repair and that claimant was adequately warned of the condition
and assumed the risk of her injury. Defendants’ motion for summary
judgment will be considered first.
On August 27, 2004, the date of claimant’s accident, Ann Marie Battaglia
(Battaglia), employed by New Paltz as an orientation leader and resident
assistant, entered the laundry room and observed water on the floor. She also
saw a yellow sandwich board sign stating “Caution-Wet Floor,” which
was located in the water. About 5 to 10 minutes later, claimant entered the
laundry room. Battaglia states that she told claimant, “Hey, watch
out,” referring to the water on the floor and that claimant responded
“Okay.” Battaglia then observed claimant walk through the water and
slip, although claimant did not fall. Battaglia then said to claimant,
“You really should be careful because the floor is wet,” and
“Watch out for the wet floor.” According to Battaglia, claimant then
walked through the water again, this time slipping and falling to the floor and
sustaining injury. Battaglia adds that claimant could have walked around the
Claimant, however, states that she slipped in the water within 20 seconds of
the time she entered the laundry room and that she did not see the water on the
floor or the warning sign prior to her accident. She admits that she saw
Battaglia in the laundry room prior to her fall but recalls only that “we
may have said hello, acknowledged each other,” prior to the accident.
Contrary to Battaglia’s testimony, claimant testified that she slipped in
the water the first time she crossed the laundry room floor.
The record shows that defendants’ Utilities Department at New Paltz was
asked to “CHECK REPORT OF WASHER DRAIN WATER RISING - GAGE HALL BASEMENT
LAUNDRY ROOM. FRI. 8/27 9:45 A.M.” A plumber was dispatched to the laundry
room and he unclogged the drain and departed the laundry room by 11:15 a.m. that
same day. According to the plumber, the drain was working properly when he left
the laundry room.
At approximately 1:40 p.m. on August 27, 2004, a custodial worker at New Paltz
again found water on the floor of the laundry room. She placed two warning signs
in the laundry room, unclogged the drain and mopped up the water.
Claimant’s slip and fall on the once again wet floor of the laundry room
occurred later that same day.
Deposition testimony revealed that the plumber employed by the Utilities
Department at New Paltz had engaged in a practice of placing stainless steel
silverware holders in the cast iron drains which collect water from the washing
machines in the New Paltz laundry rooms, including the laundry room at Gage Hall
where claimant fell. The stainless steel silverware holders were intended to act
as lint traps to prevent the drains from clogging. The lint traps were routinely
cleaned by the New Paltz custodial staff.
The custodial worker who had discovered the clogged drain and water on the
floor of the laundry room at 1:40 p.m. on the afternoon of claimant’s fall
had cleaned the lint trap that morning at approximately 8:20 a.m. and could
recall only one or two occasions during her 4½ years of employment when she
had to clean a lint trap more than once on any given day.
“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., 31 AD3d 877 [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 & Company, LLP, 296 AD2d 742, 743
[3d Dept 2002]) and where a genuine issue of fact exists, the motion must be
denied (Fleet Bank v Tiger Racquet Fitness and Exercise Center, Inc., 255
AD2d 793, 794 [3d Dept 1998]).
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, 911 [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 injury resulting from an alleged dangerous
condition 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 Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept
Defendants bear the initial burden on their motion to “establish as a
matter of law that [they] maintained [their] 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
Defendants have met their initial burden on the motion through deposition
testimony tending to show that: New Paltz engaged in a regular practice of
preventative maintenance and prompt repair with respect to potential water
drainage problems in the campus laundry rooms; there was no significant history
of drainage problems at the laundry room; the laundry room floor was dry and the
drain clear at least as of 1:40 p.m. on the day of the accident;
Battaglia’s discovery of water on the floor prior to claimant’s
accident arguably did not provide enough time for defendants to correct the
condition; and claimant was warned of the dangerous condition yet chose to
proceed at her own risk.
The burden thus shifts to claimant to show the existence of triable issues of
fact. In considering whether claimant has shown the existence of triable issues
of fact, the following principles should be kept in mind.
The existence of a dangerous condition is generally a question of fact
dependent upon the particular facts and circumstances of each case (Moons v
Wade Lupe Const. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]).
It is also clear that “[w]hat accidents are reasonably foreseeable, and
what preventive measures should reasonably be taken, are ordinarily questions of
fact” (Diven v Village of Hastings-on-Hudson, 156 AD2d 538, 539 [2d
Dept 1989]; see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315
; Perrelli v Orlow, 273 AD2d 533 [3d Dept 2000]).
Whether an alleged dangerous condition is latent or open and obvious is also
generally a question of fact (Walters v County of Rensselaer, 282 AD2d
944, 945 [3d Dept 2001]). “For a condition to be open and obvious as a
matter of law, it must be one that could not be overlooked by any observer
reasonably using his or her ordinary senses” (Garrido v City of New
York, 9 AD3d 267, 268 [1st Dept 2004]).
A court may determine that a risk was open and obvious as a matter of law only
“when the established facts compel that conclusion . . . and may do so on
the basis of clear and undisputed evidence” (Tagle v Jakob, 97 NY2d
165, 169 ).
The law provides that “the open and obvious nature of an allegedly
dangerous condition does not, standing alone, necessarily obviate a
landowner’s duty to maintain his or her property in a reasonably safe
condition” (MacDonald v City of Schenectady, 308 AD2d 125, 127 [3d
Dept 2003]), although such a finding would negate any duty of defendant to warn
of the dangerous condition (Soich v Farone, 307 AD2d 658, 659 [3d Dept
The Court finds that a question of fact exists as to whether the two instances
known to defendants of a clogged drain and wet floor in the laundry room on
August 27, 2004, prior to claimant’s fall, should have put defendants on
notice of the condition. Additionally, in view of the sharp factual differences
in the deposition testimony of claimant and Battaglia, questions of fact exist
as to whether Battaglia (or the custodial worker who mopped up the water at 1:40
p.m.) had an adequate opportunity to contact the New Paltz Facilities Department
to remedy the condition or take other action and whether claimant was adequately
warned of the condition known to Battaglia. Finally, given the divergent
accounts of the time claimant spent in the laundry room prior to falling, and
how that time was spent, a question of fact exists as to whether
claimant’s conduct was a superseding cause of the accident.
Accordingly, the defendants’ motion for summary judgment is denied.
Claimant cross-moves to amend the claim and bill of particulars to add the
allegation that defendants were negligent “in creating the condition by
placing a kitchen utensil holder inside the drain.” In particular,
claimant seeks to allege that the silverware holder placed in the drain by
defendants contained perforations that were too small to allow the water
discharged by the washing machines to drain properly. Claimant further seeks to
allege that the use of the silverware holder violates several provisions of
“New York State Codes.” These allegations are based upon the opinion
of an expert who examined the drain at claimant’s request on April 26,
2007. This expert has not, even as of the submission of the cross-motion, been
formally disclosed to defendants, although an affidavit of the expert, sworn to
on August 23, 2007, is included in the motion papers.
CPLR 3025 (b) provides for the amendment of a pleading by a party either by
stipulation or leave of court. “Leave shall be freely given upon such
terms as may be just including the granting of costs and continuances”
(CPLR 3025 [b]). “[I]f the amendment is meritorious and does not cause
prejudice or surprise to the nonmoving party, the determination is a
discretionary matter which will not be disturbed absent abuse” (Matter
of Seelig, 302 AD2d 721, 723 [3d Dept 2003]).
Prejudice to the nonmoving party is shown where that party is “hindered
in the preparation of its case or has been prevented from taking some measure in
support of its position” (Pritzakis v Sbarra, 201 AD2d 797, 799 [3d
Dept 1994]; see Smith v Haggerty, 16 AD3d 967, 968 [3d Dept
“Lateness in making a motion to amend, coupled with the absence of a
satisfactory excuse for the delay and prejudice to the opposing party, justifies
denial of such a motion” (Thibeault v Palma, 266 AD2d 616, 617 [3d
Dept 1999]; see Moon v Clear Channel Communications, Inc., 307
AD2d 628 [3d Dept 2003]).
“[A] court’s discretion to grant leave to amend should be exercised
with caution where the case has been certified as ready for trial”
(Sadler v Town of Hurley, 304 AD2d 930 [3d Dept 2003]; see
Harris v Jim's Proclean Service, Inc., 34 AD3d 1009 [3d Dept 2006];
Yavorski v Dewell, 288 AD2d 545 [3d Dept 2001]).
Here, the claim was certified as ready for trial on May 15, 2007 after claimant
had failed to file the note of issue and certificate of readiness pursuant to
Court order on three prior occasions. The motion to amend was made returnable
just forty (40) days prior to the trial date.
Claimant has offered no reasonable excuse for the delay in seeking to amend the
claim and bill of particulars. The claim has been pending for nearly three years
and claimant was entitled to examine the laundry room at any time during that
Claimant’s expert examined the drain on April 26, 2007, time enough to
comply with the Court’s order requiring trial readiness and expert
disclosure by May 17, 2007, yet claimant filed a note of issue and certificate
of readiness without having disclosed the expert or his opinion to the
defendants. Nineteen days after having an expert examine the laundry room drain,
claimant certified that there were no expert reports to be filed or exchanged,
that there had been a reasonable opportunity to complete disclosure proceedings,
that there had been compliance with the Court’s conference orders and that
the “action is ready for trial.”
It was only when faced with the defendants’ motion for summary judgment
that claimant sought to advance a wholly new theory of proving defendants’
notice of the condition by bringing a cross-motion unrelated to
defendants’ dispositive motion.
Defendants would be prejudiced if the cross-motion was granted since disclosure
has been completed and trial is scheduled to begin forty (40) days after the
return date of the motion. Defendants have understandably prepared for trial on
the basis of the allegations contained in the claim and the bill of particulars
and, in particular, have prepared under the justifiable assumption that claimant
would present no expert testimony.
Finally, the Court agrees with defendants’ contention in their opposition
to the cross-motion that the proposed amendment lacks merit since the
allegations are based solely upon the opinion of an undisclosed expert.
The defendants’ motion for summary judgment dismissing the claim is
denied. Claimant’s cross-motion to amend the pleadings is denied as