New York State Court of Claims

New York State Court of Claims

SHERIDAN v. THE STATE OF NEW YORK and SUNY STATE UNIVERSITY AT NEW PALTZ, #2007-041-045, Claim No. 110138, Motion Nos. M-73714, CM-73909


Synopsis

Defendants’ motion for summary judgment is denied in slip and fall claim where triable issues of fact exist as to whether defendants had notice of, and an opportunity to correct, an allegedly dangerous condition; claimant’s cross-motion to amend the claim to allege that defendants created the condition is denied as untimely and prejudicial.

Case Information

UID:
2007-041-045
Claimant(s):
AUDREY SHERIDAN
Claimant short name:
SHERIDAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and SUNY STATE UNIVERSITY AT NEW PALTZ
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110138
Motion number(s):
M-73714
Cross-motion number(s):
CM-73909
Judge:
FRANK P. MILANO
Claimant’s attorney:
BARASCH, MC GARRY, SALZMAN & PENSONBy: Dana Cutting, Esq.
Defendant’s attorney:
HON. ANDREW M. CUOMO
New York State Attorney General
BY: HISCOCK & BARCLAY, LLP Colleen D. Galligan, Esq.
Third-party defendant’s attorney:

Signature date:
September 17, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendants move pursuant to CPLR 3212 for summary judgment dismissing the claim and claimant cross-moves to amend the claim and bill of particulars to allege that defendants created a dangerous condition which caused claimant’s injuries.

The claim alleges that claimant was injured on August 27, 2004, at approximately 3:30 p.m., when she fell on a wet floor at a laundry room located in the Gage Hall dormitory at the State University of New York at New Paltz (New Paltz). Claimant was an incoming freshman participating in orientation at New Paltz at the time she was injured.

The claim was filed on November 24, 2004 and alleges that the laundry room floor was in a defective condition in that it was “wet, slippery open and traplike.” The claim further alleges that the “defendant was negligent in maintaining the laundry room in such a defective condition for more than a sufficient length of time to acquire actual and constructive notice” and “took no reasonable steps to warn of the dangerous condition.”

On March 21, 2006, the Court held a preliminary conference, bifurcated the claim, set a disclosure schedule and ordered that a note of issue and certificate of readiness be served and filed by June 30, 2006. That deadline was not met. Claimant substituted attorneys on August 15, 2006.

The claimant provided a verified bill of particulars on September 22, 2006 in which claimant alleged, among other things, that defendants were negligent in failing to “keep and maintain said laundry room . . . in good repair and free from defects, dangers and hazards; . . . failing to make repairs . . . and/or making repairs in a careless, negligent, reckless and unsafe manner . . .; failing and neglecting to warn or notify [claimant of the alleged condition].”

With respect to defendants’ specific demand for particulars as to notice of the condition, claimant alleged in her bill of particulars that:
“Actual notice is claimed by reason of the fact that the defendants were regularly upon and frequented the aforesaid area, and during the use of the said premises observed, knew or should have known by physical and actual inspection thereof of the said defective, dangerous and hazardous conditions prior to the happening of the accident at issue herein.”

Claimant further alleged that:

“Constructive notice is claimed, upon information and belief, by reason of the fact that the said defective, dangerous and hazardous conditions existed for a sufficient length of time prior to the happening of the accident so as to enable the defendants, their agents, servants and\or employees to have discovered, rectified, corrected and removed said conditions.”
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 discovery.”

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, 2007.

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 water.

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 [1957]; 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 [1983]). “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 [1997]; 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 [1986]; see Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).

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 2006]).

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 [1980]; 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 [2001]).

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 2003]).

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 2005]).

“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 period.

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 well.


September 17, 2007
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Defendants’ Notice of Motion, filed July 12, 2007;
  2. Affirmation of Colleen D. Galligan, dated July 11, 2007, and annexed exhibits;
  3. Claimant’s Notice of Cross-Motion, filed August 30, 2007;
  4. Affirmation of Dana Cutting, dated August 23, 2007, and annexed exhibits;
  5. Affidavit of Roy Kannenberg, sworn to August 23, 2007;
  6. Affirmation of Colleen D. Galligan in Opposition and Reply, dated August 31, 2007, and annexed exhibits.