New York State Court of Claims

New York State Court of Claims

CROSS v. STATE OF NEW YORK, #2008-038-117, Claim No. 110494


Claim for slip and fall on ice dismissed after trial. The preponderance of the evidence did not demonstrate that defendant had ownership, occupancy, control, or a special use of the sidewalk upon which claimant slipped and fell

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):

Claimant’s attorney:
WALLACE, WITTY, FRAMPTON & VELTRY, P.C.By: Robert H. Frampton, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: John L. Belford, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 15, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks to recover damages for injuries she sustained when she slipped on a patch of ice and fell on a sidewalk outside of the Commack office of the Long Island Developmental Disabilities Service Office (hereinafter “LIDDSO”) on March 5, 2003. The liability phase of the trial of this claim was conducted on April 8, 2008 in Hauppauge, New York. Claimant presented her testimony; defendant presented the testimony of LIDDSO employee John Ziegelmeier. Numerous photographic and documentary exhibits were received into evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court concludes that defendant is not liable to claimant for her injuries.
At approximately 10:00 a.m. on March 5, 2003, claimant arrived at the office of the LIDDSO at 45 Mall Drive in Commack, New York. She was bringing two developmentally disabled individuals who were in her care to appointments at the LIDDSO. Claimant drove around the building to a parking lot located on the north side or back of the building because buses and minivans were blocking the front entrance and parking area on the south side of the building. Claimant parked her car in a parking spot near the back of the building, exited her vehicle, stepped onto the sidewalk that abutted the parking lot, and walked on a path that led toward the door through which she intended to enter the building. The door was locked, however, so claimant turned around and walked back on the path, intending to return to her car. As she stepped on the sidewalk near her car, claimant slipped on ice and fell. Several of the photographs of the sidewalk and the path taken by claimant immediately after her fall were admitted into evidence as Claimant’s Exhibits 2, 3 and 4. These photographs reveal an accumulation of what appears to be old snow that had been mostly cleared from the sidewalk and the path, and a large patch of ice on the sidewalk next to the parking lot.

Claimant was unable to get up off the sidewalk because the ice was too slippery and her body hurt, so she crawled to her car and pulled herself up into the vehicle. She sat in her car for several minutes, composed herself and then used a camera that she had with her to photograph the area where she had fallen. Being careful to avoid the ice on which she fell, claimant then took the same route back to gain entrance to the building through the same door she tried to enter before her fall. Claimant spoke to a LIDDSO “supervisor”[1] about her slip and fall, and filled out an accident report (see Claimant’s Exhibit 5).

Defendant LIDDSO leased space at 45 Mall Drive from a private non-party landlord and did not have exclusive occupancy of the building. The lease agreement between defendant and its landlord, admitted into evidence as Defendant’s Exhibit E, demised to defendant “31,000 Square Feet of space at 45 Mall Drive ...” (¶ 1), and the term of the lease is addressed to “the premises with the appurtenances” (¶ 2). The lease does not further describe the demised premises or appurtenances. Paragraph 54 of the lease provides that the landlord shall clean and maintain the sidewalks, including the removal of snow. John Ziegelmeier, defendant’s employee, was responsible for overseeing service contracts and maintenance for LIDDSO facilities, which included snow removal. He credibly testified that throughout the 10 years that he worked at 45 Mall Drive, the landlord had always performed snow removal on the sidewalks, and that defendant’s employees never engaged in such tasks. The doorways on the north side of the building (see Defendant’s Exhibits C, D) open directly into LIDDSO’s offices, and Ziegelmeier testified that in March 2003, those doorways were used on a daily basis by administrative staff, but they were not typically used by consumers at LIDDSO to gain entrance to its premises.
The threshold issue in this claim is whether defendant had a duty to maintain the sidewalk upon which claimant slipped and fell. “[L]iability for permitting a dangerous condition to remain on real property is predicated upon ownership, occupancy, control, or a special use of the property” (Marrone v South Shore Properties, 29 AD3d 961, 963 [2d Dept 2006]). Without one of these conditions, the defendant has no duty to exercise reasonable care, and thus, cannot be liable for injuries sustained due to a defective condition (see Turrisi v Ponderosa, Inc., 179 AD2d 956, 957-958 [3d Dept 1992]; Balsam v Delma Eng’g. Corp., 139 AD2d 292, 296-297 [1st Dept 1988], lv denied 73 NY2d 783 [1988]).

The evidence conclusively demonstrates that defendant lacked ownership of the sidewalk upon which claimant slipped and fell. There was no proof nor argument presented that the sidewalk was put to a “special use” by defendant (see Campos v Midway Cabinets, Inc., 51 AD3d 843 [2d Dept 2008] [use of a sidewalk as a driveway constitutes a “special use”]; Balsam v Delma Eng’g. Corp., supra at 298-299 [“special use” generally requires an installation on public premises for the exclusive benefit of an abutting landowner, which gives rise to a duty to maintain the public premises]).

The evidence at trial did not demonstrate that the sidewalk was part of the demised premises. There was no testimonial evidence offered on that point, and the lease agreement that was entered into evidence does not state whether the sidewalk was or was not part of the 31,000 square feet demised to defendant (see Cross v State of New York, UID # 2007-038-549, Claim No. 110494, Motion No. M-73227, DeBow, J. [July 13, 2007] [defendant’s motion to dismiss pursuant to CPLR 3211(a) denied because lease did not facially establish that sidewalk was not part of the demised premises]).[2] Thus, the preponderance of the evidence does not demonstrate that defendant was in possession or occupancy of the sidewalk (see Hoberman v Kids “R” Us, Inc., 187 AD2d 187, 190 [2d Dept 1993] [lease demonstrated that sidewalk was not part of the demised premises]; compare Cohen v Central Parking Systems, Inc., 303 AD2d 353, 354 [2d Dept 2003] [slip and fall on ice in a parking lot leased to defendant]; Chadis v Grand Union Co., 158 AD2d 443, 444 [2d Dept 1990] [tenant conceded that parking lot was part of demised premises]; cf. Ruggiero v Long Is. R.R., 161 AD2d 622 [2d Dept 1990] [use of the term “appurtenant sidewalk” did not facially include a particular sidewalk within lease’s indemnification clause]).

Thus, defendant’s liability turns on whether it exercised “control” over the sidewalk. Paragraph 54 of the lease agreement between defendant and its landlord clearly imposes the duty of cleaning and maintaining the sidewalks on the landlord, and Ziegelmeier’s uncontroverted testimony establishes that defendant never undertook to clear ice and snow from the sidewalks

(cf. Figueroa v Tso, 251 AD2d 959 [3d Dept 1998]). Nor does the evidence – particularly the photographs offered by both parties – support a finding that the ice patch upon which claimant fell was sufficiently near “the entrance which [defendant] invites the public to use” (Hackbarth v McDonalds Corp., 31 AD3d 498 [2d Dept 2006]) to impose upon defendant a duty of reasonable care to keep that location clear of hazards.

In sum, the preponderance of the evidence does not establish that defendant had ownership, occupancy, control, or a special use of the sidewalk upon which claimant fell. In light of this conclusion, the Court need not address the remaining issues argued by the parties.
Defendant is not liable to claimant for her injuries, and the claim must be dismissed. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim. Any motions not previously ruled upon are hereby DENIED.

Let judgment be entered accordingly.

September 15, 2008
Albany, New York

Judge of the Court of Claims

[1]. Unless otherwise indicated, all quotations are taken from the digital audio recording of the trial proceedings.
[2]. Claimant’s argument that the law of the case precludes defendant from arguing that it lacked control over the sidewalk is misplaced. The Court’s prior decision was not addressed to “control,” but to occupancy, and it determined only that the documentary evidence alone did not establish the lack of a cause of action warranting dismissal of the claim (cf. Brownrigg v New York City Housing Auth., 29 AD3d 721, 722 [2d Dept 2006]).