New York State Court of Claims

New York State Court of Claims

FARLEY v. THE STATE OF NEW YORK, #2008-042-513, Claim No. 110263, Motion No. M-74682


This motion is brought by the defendant for summary judgment on this slip and fall claim. Defendant’s motion is based upon the argument that claimant’s fall was not caused by a “dangerous condition”. Claimant did not prove that the slip and fall was caused by a “dangerous condition”. The court found that there was no “dangerous condition” and defendant’s motion for summary judgment is granted and the claim is dismissed.

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:
Defendant’s attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 11, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


This matter comes before the court on defendant’s motion for summary judgment in this slip and fall personal injury case. The court considered the following papers:
1. Notice of Motion, filed March 17, 2008
2. Affirmation of Joel L. Marmelstein, Esq., dated March 13, 2008
3. Exhibits A - H, annexed to the moving papers
4. Opposition affirmation of Diane Martin-Grande, Esq., dated April 29, 2008


Claimant alleges that she was injured in a fall at the McPike Addiction Treatment Center located at 1213 Court Street in Utica, New York. The fall is alleged to have occurred on a roadway at the Center on December 28, 2003 in the early afternoon, while claimant was taking a stroll on the premises with her grandson, who was a patient at the facility. According to the deposition testimony of claimant’s husband, who had driven her to the facility, it was a bright day and “sunny probably” at the time of her fall.

The claim states that claimant “was caused to slip and fall on debris located in the roadway and/or sidewalk”. However, in her deposition, claimant was more specific about the fall itself and stated that she thought she stepped on a pebble or a small stone, and it “threw” her. Claimant’s grandson testified at his deposition that the fall occurred in the roadway on the right side of the building. He testified that there was no ice or snow on the ground at the place of the fall. He makes a vague reference to having noticed “debris” at the site of the fall, but he did not notice it prior to the fall, nor does he describe it in any detail. While he tried to connect the debris to tire tracks he saw elsewhere on the grounds, and concluded that a state vehicle caused those tire tracks, and that the tracks caused the debris, this was nothing but conjecture.

Defendant’s motion for summary judgment is based upon the argument that this was not a dangerous condition, and in any event, the road’s condition was totally observable. While counsel cites law relative to the issues of actual or constructive notice to the defendant, no proof is offered by the defendant as to lack of notice, whether actual or constructive, to the “dangerous condition”. Likewise, there is no proof offered to counter the claim that defendant created the condition. The crux of defendant’s argument is that the condition itself was not dangerous.

Claimant opposes the motion, with claimant’s counsel arguing, without proof, that defendant’s snowplowing operations on December 17 -18, 2003 caused the pebble and “debris” to be placed in the roadway. And “while it [pebble, debris, etc.] may have been readily observable to some extent, how much of it was observable is something that must be assessed by the trier of fact based upon the evidence.”

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 (see CPLR 3212 [b]; Haggray v Malek, 21 AD3d 683, 684 [2005]). 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 (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

(Ware v Baxter Health Care Corp., 25 AD3d 863, 864 [3d Dept 2006]).

The moving party, the State, must make a prima facie showing of entitlement to summary judgment as a matter of law, setting forth sufficient evidence to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). Once that showing is made, however, the burden shifts to the opposing party to produce sufficient evidence, in admissible form, to demonstrate issues of fact requiring a trial (Zuckerman v City of New York, 49 NY2d 557, 562)

The law is well settled that a property owner of premises open to the public has a duty to maintain the premises in a reasonably safe condition to prevent foreseeable harm or injuries to persons upon the premises (Basso v Miller, 40 NY2d 233, 241).

In a slip and fall case,

[t]he 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 (citations omitted).

(Sheridan v State of New York, UID No. 2007-041-045, Claim No. 110138, Motion Nos. M-73714, CM-73909, September 17, 2007, Milano, J.).

Considering all the evidence in the light most favorable to the claimant, claimant inexplicably fell when she stepped on a pebble. At the time of the fall, claimant was walking, not on a sidewalk, but in the roadway. It was a clear day in late December during the winter, and there had been no snowfall in days. A snowfall for which snow removal services had last been provided occurred at the facility about ten days prior to the incident. No description whatsoever is offered as to the precise size of the area of “debris”, or of the various objects which comprised the alleged debris, but the Court finds the issue of debris to be irrelevant, since claimant is very specific about only a pebble or small stone as being the precipitating factor in her fall.

A pebble in a roadway in Central New York in the heart of winter does not constitute a dangerous condition. The use of salt, sand or ash to treat ice and packed snow on streets and roads is a well established and well known practice in Upstate New York. This was a public roadway used by vehicles in the winter. Regardless of whether the State used salt, sand or ash to treat ice on the roadway (no proof was offered by either party on this point), it is common knowledge that vehicles traveling the roadways in winter pick up these materials from the roadways and deposit them in our driveways, garages, streets and parking lots and that these materials often contain extraneous pebbles, stones and rocks. Occasional pebbles are also expected detritus on our roads and driveways from numerous other sources as well.

In Lopez v State of New York, UID No. 2003-016-070, Claim No. 100597, September 9, 2003, Marin, J., claimant and her family were walking on a road at the Riverbank State Park. At trial there was testimony that a portion of the black asphalt on the road had chipped away and that there were small pieces like “black little pebbles”. Claimant blamed the pebbles for her fall. However, the court noted that while claimant said that she believed the pebbles caused the fall, claimant had offered no testimony that the pebbles were slippery or that they had accumulated to create an uneven surface. The claimant merely stated that she believed the pebbles caused her fall and further testified that “I just twisted my - - I don’t recall if it was that I twisted my ankle or was it - - the only thing I know is that I fell, and I just heard like a pop.” The court found that claimant failed to show that a dangerous condition existed and failed to show that the condition that did exist was a proximate cause of claimant’s fall.

The situation here is analogous. The claim states that claimant was caused to slip and fall on debris. However, in her deposition testimony, when asked to amplify, claimant stated that

“[t]here was [sic] little pebbles and dirt, debris, little limbs from the trees, not big limbs, but little limbs from the tree, and I just stepped right and I – I’m not positive, but I think this is what happened. I think I stepped on a pebble or a stone, a small stone, and it just did it right and it threw me.” When questioned as to whether she lost her balance, she stated “I didn’t actually lose my balance. I fell immediately. I stepped on it and I went.” It was not debris that caused the fall, according to claimant - it was a pebble or small stone. And yet claimant has no explanation for how or why the pebble triggered a fall.

In Nardi v Crowley Marine Associates, Inc., 292 AD2d 577, plaintiff allegedly slipped on a moss-covered incline along the shoreline and was injured. In addition to finding the condition open and obvious, the court also held that:

a landowner will not be held liable for injuries arising from conditions on the property that are inherent to the nature of the land and could be reasonably anticipated by those using it (see Moriello v Stormville Airport Antique Show & Flea Mkt., 271 AD2d 664; Csukardi v Bishop McDonnell Camp, 148 AD2d 657; Rosen v New York Zoological Socy., 281 AD2d 238).

(Nardi v Crowley Marine Associates, Inc., 292 AD2d 577, 577-578).

Likewise, in Medina v Sears, Roebuck and Co., 41 AD3d 798, plaintiff allegedly fell on a wet uncovered ramp. The court found that the “mere fact that the ramp became wet from the rain was insufficient to establish the existence of a dangerous condition (citations omitted)” (Medina v Sears, Roebuck and Co., 41 AD3d 798, 799).

The presence of a small stone or pebble on a roadway in winter is analogous to the moss-covered incline or a wet ramp in the out-of-doors. These are all conditions inherent to the locale, and, without more, the pebble, like the latter two conditions, does not constitute a “dangerous condition”.

Since the court finds that there was no “dangerous condition”, it need not reach other issues raised on the motion. Defendant’s motion for summary judgment is granted and the claim is dismissed.

July 11, 2008
Utica, New York

Judge of the Court of Claims