New York State Court of Claims

New York State Court of Claims

MICHAELS v. STATE OF NEW YORK, #2008-016-030, Claim No. 108411


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):

Cross-motion number(s):

Alan C. Marin
Claimant’s attorney:
Robert W. Nishman, Esq.
by: Schneider, Kaufman & Sherman, Howard B Sherman, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney Generalby: Cheryl M. Rameau, AAG
Third-party defendant’s attorney:

Signature date:
June 26, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the decision following the trial on liability of the claim of Jay Seth Michaels that he fell because of a loose drain cap in the laundry room at Arthur Kill Correctional Facility on April 24, 2003. At the time of his accident, Mr. Michaels had been an inmate at Arthur Kill since September, 2000.

In December of 2002, claimant was assigned to C-1, the honor dorm for some 50 or 60 inmates with no disciplinary infractions. Michaels had started in the C-1 laundry room as a porter only a week or a week and a half before his accident. He worked in the laundry room in the afternoons from 1 p.m. to 3:45 p.m. Michaels’ job was to wash, dry and fold the inmates’ laundry and then put it back in their laundry bags for them to pick up.

Claimant’s accident happened at around 1:15 p.m. (cl exh 2). He describes it as follows:
I was returning from the laundry room after using the bathroom and I opened the door and as I stepped in there was a drain in from the door and when I stepped on the drain, the cap, the drain cap, slid out and my foot went in and I stumbled forward and I fell . . .
Correction Officer Ukisha Tisdale was the unit officer on the day in question, and was sitting at her desk when informed by an inmate that Michaels had fallen in the laundry room. Officer Tisdale went into the laundry room and saw claimant on the ledge of the base supporting the washing machines and dryers. He was holding his shoulder and the officer called the medical unit to ask for assistance. Tisdale, whose testimony was received via her deposition of January 25, 2006, described the drain cover or cap as being “kind of off a little bit”; the “thing wasn’t completely off, it was slightly off.” She observed that one side of the cover was “attached,” and the other side may have needed a screw or bolt.

Inmate John Duffy testified by deposition. Mr. Duffy’s deposition (cl exh 1) was taken December 4, 2007 at Mid-Orange Correctional Facility, but on April 24, 2003, he was incarcerated at the Arthur Kill facility, and had been there since 1997. Duffy also worked as a laundry porter, assigned there both in the morning as well as the afternoon when Michaels worked. He described claimant’s fall this way:
I was sitting on top of the table where we store the clothes and out of the corner [of] my eye I seen somebody coming. I heard the metal cover. I can hear them whenever they bounced out. If you step on them they would slide out, bounce out. I heard it going and I look and I seen him falling over . . . He fell over the drain as he came in the door.
Goodwin Halvorsen was another witness whose testimony was received by deposition (April 25, 2007; cl exh 3). Mr. Halvorsen was a civilian plumber who worked at Arthur Kill five days a week; he was the only plumber at the facility in April of 2003. He explained that the dimensions of the laundry room were 20 feet by 40 feet, with the 40 feet being the depth when one walks in through the only doorway to the room. Halvorsen indicated that there were three washing machines and two dryers. The floor was concrete, and there were two drains with caps, which “are screwed onto a metal plate that’s screwed on the . . . floor drain” (id., p. 9). The caps are round, solid and three inches in diameter, slightly larger than the drain.

Inmate Duffy testified that both caps were loose. His explanation goes back to a flood in the laundry room about a year before claimant’s accident in which the caps were removed and the drains opened up, but not resecured because the screws originally had to be broken off - - work that Duffy said he personally observed. Neither Arthur Kill’s plumber, Halvorsen, nor its plant superintendent at the time, Keith Pisons,[1] recalled such a flooding condition. However, Correction Officer Henrico Beckford, when he took the stand at trial, testified that there had been a flood in C-1's laundry room. Officer Beckford recalled that the flooding occurred a few months prior to Michaels’ accident, in “January [of 2003], somewhere in that area.”
No witness could recall anyone falling on a loose drain cap in the C-1 laundry room before April 24, 2003. Duffy maintained that he and other inmates had lost their balance a few times, but righted themselves. With that said, defendant does not dispute that this was a condition sufficiently dangerous to be a slip-and-fall hazard. If the flood dates the onset of the condition, Officer Beckford had it at three or four months earlier.

In order to find the State liable in negligence for Mr. Michaels’ fall, the proof must show that either defendant created the dangerous condition, or if it did not, that defendant had notice of the condition and sufficient time to repair it. As for whether there was constructive notice, the condition at issue must be visible and apparent and have existed for a sufficient period of time to have been discovered and remedied. Gordon v American Museum of Natural History, 67 NY2d 836, 501 NYS2d 646 (1986); Giuffrida v Metro North Commuter RR. Co., 279 AD2d 403, 720 NYS2d 41 (1st Dept 2001).

The credible evidence is insufficient to prove that defendant created the condition. There is only Duffy’s testimony, which overall was helpful, but spotty. Duffy stated that he observed the repair on the drains after the flooding, but said that it occurred at night, which was not when he was assigned to work. Neither the facility’s plumber, nor its plant superintendent recalled the repair Duffy described.

But to this trier of fact, Duffy is believable when he vividly said that the loose cap or caps was “my alarm,” alerting him with its noise or “rattle” that an inmate was entering the laundry room. I conclude that defendant had constructive notice of this condition and should bear responsibility for Michaels’ accident.

But similarly, claimant must bear some responsibility, because he had to be aware of the condition despite his testimony to the contrary. Michaels had worked in the laundry room for a week or a week and a half, but that is at least ten trips in and out of the only door and probably more. In fact, his accident happened after he had gone out the door to use the bathroom. In addition, he had been assigned to the C-1 dorm for some four months, and the testimony was that each inmate brought his dirty clothes down to the laundry himself.

Morever, Duffy, who stated that he reported the loose caps numerous times, insisted that he had never discussed it with claimant, giving this explanation:
[Y]ou would have to be in prison to understand the atmosphere. Like if I was to tell somebody watch those drains over there they would tell me what’s your business. So you don’t volunteer anything, you know?
(Cl exh 1, p.33).

This does not ring particularly true; it does not seem akin to, say, reporting that inmate A is threatening inmate B. But, it particularly does not ring true given his efforts to deny being friendly with Michaels. Duffy says he knew Michaels “only in passing from living in the dorm. How are you doing, that’s all.” Duffy had a strained response when asked how many hours they spent together in the laundry room, testifying “maybe an hour . . . we’d walk in and out, no need for two of us sitting around there watching machines go around.” Moreover, Officer Beckford says he remembers Duffy and claimant in the yard four or five times a week, walking and talking. The officer testified that he recalled it because he had to use his key to let the two of them into the yard.
In view of the foregoing, I find the defendant State of New York to be two-thirds liable for the fall of Jay Seth Michaels on April 24, 2003 and any injury or injuries resulting therefrom.

June 26, 2008
New York, New York

Judge of the Court of Claims

[1]. Mr. Pisons testified by his deposition; no date therefor is given on the record.