Julio Smith (claimant), while descending an exterior set of concrete stairs at
the Clinton Correctional Facility (CCF) on March 23, 2002, slipped, fell and
slid down the flight of stairs. Other than Sergeant James Douglass, an employee
at CCF, who was called for two questions to corroborate that claimant had
complained of falling (after its occurrence), claimant was the only witness at
trial. No exhibits were introduced and the defendant called no witnesses.
At the conclusion of claimant’s case, the defendant moved to dismiss the
claim for failure of claimant to prove a prima facie case. The Court reserved
decision. The Court now grants defendant’s motion to dismiss the
The only testimony offered by the claimant regarding his fall was his
explanation that upon taking his very first step upon the set of stairs, he
“slipped” and slid down the stairs. This represented the entirety
of claimant’s testimony on his fall. He gave no indication and presented
no evidence as to what caused his slip, upon what he slipped, the condition of
the stair or set of stairs at the time of his fall, or the condition of the
stair or set of stairs at any time prior to his fall.
Claimant’s testimony was almost entirely devoted to explaining the
injuries he allegedly sustained by reason of the fall, the reasons for his delay
in reporting the fall, and his complaints of being denied timely medical care
for the treatment of his injuries.
“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
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
The State’s liability for a slip and fall 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 Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept
2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept
The record is absolutely barren of the reason claimant slipped, upon what or
why he slipped and of the condition of the stairs upon which he slipped.
Accordingly, claimant failed to prove a dangerous condition existed, failed to
prove the defendant had actual or constructive notice of a dangerous condition
and failed to prove any action or inaction of the defendant, negligent or
otherwise, caused his fall and his resulting injuries.
“[F]ailure to prove what actually caused a [claimant] to fall in a
situation where there could be other causes is fatal to a [claimant’s]
cause of action” (Dapp v Larson, 240 AD2d 918, 919 [3d Dept 1997]).
The inability of claimant to identify the alleged dangerous condition would
require the Court to rely upon “nothing more than surmise, conjecture and
speculation” as to the cause of claimant’s fall and is fatal to his
claim (Martin v Wilson Mem. Hosp., 2 AD3d 938, 939 [3d Dept 2003];
Curran v Esposito, 308 AD2d 428, 429 [2d Dept 2003]).
To the extent claimant’s testimony at trial describing the injuries he
allegedly sustained, the denial of proper medical treatment of those injuries
and the development of a “degenerative disc disease” he thereby
suffered by reason of being denied timely medical care, can be viewed as given
in support of a claim founded in medical malpractice, it too must fail.
It “is well settled that where the State engages in a proprietary
function such as providing medical and psychiatric care, it is held to the same
duty of care as private individuals and institutions engaged in the same
activity” (Rattray v State of New York, 223 AD2d 356, 357 [1st Dept
Defendant is required to exercise professional medical judgment within the
range of accepted medical standards in its treatment of claimant. The law is
clear that “neither a medical provider . . . nor the State or governmental
subdivisions employing the medical provider, may be held liable for a mere error
in professional judgment” (Ibguy v State of New York, 261 AD2d 510,
[2d Dept 1999], lv denied 93 NY2d 816 ; Sciarabba v State of New
York, 182 AD2d 892, 893-894 [3d Dept 1992]).
Conclusory allegations of medical malpractice, unsupported by competent
evidence establishing its essential elements, are insufficient to state a prima
facie case. Through a medical expert, it must be shown that defendant deviated
from the standard for good and acceptable care in the locality where the
treatment occurred and that the deviation was the proximate cause of the injury
(Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v
Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d
865, 867 [3d Dept 2000]).
“Where medical issues are not within the ordinary experience and
knowledge of lay persons, expert medical opinion is a required element of a
prima facie case” (Wells v State of New York, 228 AD2d 581, 582 [2d
Dept 1996], lv denied 88 NY2d 814 ; see Tatta v State of New
York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 ).
The fact that claimant proceeded pro se does not excuse the need for expert
medical opinion to demonstrate a deviation from the applicable standard of care
(Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept1997], lv
denied 91 NY2d 810 ).
Claimant was the only witness at trial. He introduced no exhibits. In order
to prove his case, claimant is obligated to produce competent expert medical
proof setting forth the standard of care obligated to be provided to him by
defendant and to further produce expert medical testimony or proof establishing
the failure of defendant to provide such care, and that the failure to provide
such care was the proximate cause of the injuries he sustained. The claimant
failed to present any such testimony or documentary evidence.