New York State Court of Claims

New York State Court of Claims

SCHNEIDER v. THE STATE OF NEW YORK, #2008-044-570, Claim No. 112699, Motion No. M-74857


State’s motion for summary judgment denied: failure to submit evidence that State’s placement of metal plate in slip-and-fall case was not negligent, as well as existence of questions of fact regarding warnings about excavated area, mandated denial of motion.

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:
FINKELSTEIN & PARTNERS, LLPBY: Andrew L. Spitz, Esq., of counsel
Defendant’s attorney:
BY: Costello, Cooney & Fearon, PLLC Christina F. DeJoseph, Esq., of counsel
Third-party defendant’s attorney:

Signature date:
September 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant[1] filed this claim seeking to recover for personal injuries allegedly received when she fell at the entrance of the Dollar Bazaar (the Store) located on West Main Street in the Village of Endicott, Broome County. Claimant alleges that she fell into a hole located at the Store’s entrance, which was apparently caused by excavation during the course of a construction project conducted by the Department of Transportation (DOT). Defendant State of New York answered and asserted several affirmative defenses. Defendant now moves for summary judgment dismissing the claim. Claimants oppose the motion.

Defendant argues that claimant fell when she was struck by an entrance door, and because it did not have any control over this door, the State is entitled to summary judgment dismissing the claim. Claimant admits that she was struck and knocked down by the door, but contends that she was injured, in part, because she fell from a metal plate or ramp – allegedly placed in front of the door by defendant – and into an unprotected excavation.

In the claim, claimant alleges that “while attempting to enter [the Store], she was caused to be precipitated off [a temporary metal plate] and into a construction ditch,”[2] sustaining serious personal injuries. Claimant further alleges that defendant was negligent because it failed to delineate the edges of the plate, or otherwise place rails or barriers to prevent patrons from falling into the excavation. In her verified bill of particulars, claimant states that defendant had actual notice of this allegedly dangerous condition because the temporary metal plate was placed at the entryway to the Store as part of a State construction project.

Claimant testified at an examination before trial that the entrance to the Store consisted of two doors, side by side. Claimant stated that the door on the left (or the west door) was normally used to enter the Store, and the door on the right (or the east door) was used as an exit. Claimant testified that on August 26, 2005, she was attempting to enter the store through the right door, which was open. Claimant stated that there were two or three orange barrels in the vicinity of the Store, but she denied observing any orange construction cones. Claimant testified that as she was trying to enter the Store, “something with the door hit [her] or something and down [she] went, and that’s all [she] can remember.”[3] Claimant stated that when the door struck her, she was knocked to the ground and first hit the back of her head, and then her backside, landing in an excavation with crushed stone. She said she injured her wrist when she put out her arm to break her fall. She further stated that she needed help getting up and out of the hole and was assisted by another customer. After helping her, that man went to her car to inform claimant Adolph Schneider that claimant had been injured. Claimant reviewed a photograph of the construction site and identified the entrance where she fell.[4] In the photograph, the entrance door had a metal plate in front of it. However, claimant could not remember whether the metal plate was in front of the door at the time of her accident.

Claimant provides an affidavit in opposition to this motion, and to clarify her deposition testimony. Claimant states that the two photographs attached to her affidavit[5] depict the general area of the Store, but do not depict the exact conditions that existed on the day of her fall. Specifically, claimant denies that there were any orange barrels or construction cones in the immediate area of the excavation where she fell.

Adolph Schneider, claimant’s husband, also testified at an examination before trial. Schneider testified that there were two orange barrels in front of the store entrance, one on each end of the metal plate, and specifically stated that the barrels were approximately four feet away from the doors. Schneider stated that the metal plate in front of the doors was approximately 4 feet wide and 10 feet long. He specifically indicated that when the right door was opened, it covered virtually the entire width of the plate. Schneider testified that claimant told him that when she arrived at the entrance, she pushed on the door – apparently to gain access to the store – and it pushed back, causing her to fall into a hole.

Athan Gyftopoulos, the DOT Engineer-in-Charge of the project, stated that the work entailed, among other things, replacement of all the utilities; water, sewer, drainage, underground electric; installation of 100 miles of forced drain; replacement of sidewalks and curbs; new lighting, new signals, and total road reconstruction for a five-eighths-mile portion of Route 17C (West Main Street) which was located in both the Village of Endicott and the Town of Union. Gyftopoulos stated that the project encompassed the 300 block of West Main Street which included the Store. Gyftopoulos acknowledged that the project specifically included replacement of existing sidewalk that led from West Main Street to the entrance doors for the Store. Gyftopoulos indicated that at sometime prior to August 24, 2005, the sidewalk in front of the entrance was removed and excavated to a depth of approximately 10 inches. Almost immediately thereafter – at least within the hour – crushed stone was set in place in preparation for the new sidewalk. Gyftopoulos stated that the sidewalk in front of the left door was poured in the early afternoon of August 25, 2005, and as a result, the left door was locked and the right door was propped open. Gyftopoulos testified that as of August 26, 2005, the date of claimant’s fall, the sidewalk in front of the right door had not been poured and there was a four-inch height differential from the top of the newly poured west sidewalk to the top of the crushed stone. Gyftopoulos stated that there was a metal plate which was immediately in front of the right door which extended to the vicinity of the parking area on the east side of the building. Gyftopoulos indicated that there were barrels and tape immediately adjacent to the metal plate to delineate the four-inch drop-off.

On a motion for summary judgment, the moving party must present evidence in admissible form which establishes its right to judgment as a matter of law, while the opposing party must present proof that demonstrates the existence of a factual issue (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068 [1979]). If the movant does not meet its burden, the motion must be denied regardless of the sufficiency of the opposing papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Moreover, for the purposes of a summary judgment motion, the factual allegations of the opposing party must be deemed true and be granted every favorable inference (Bershaw v Altman, 100 AD2d 642, 643 [1984]).

It is undisputed that defendant did not have any control over the two doors at the Store. It is also apparent that some type of contact between one of the doors and claimant caused her to fall. However, claimant has also alleged that defendant was negligent in either its placement of the metal plate, the failure to delineate the edges of the plate, and the failure to erect barriers to prevent a pedestrian from falling from the plate. Defendant’s argument that the claim should be dismissed because claimant has failed to offer any expert testimony establishing that some type of protective mechanism was required is misplaced. While claimant certainly must introduce that type of evidence at trial, on this motion, the State has the initial burden of establishing that such protective measures were not required. Notwithstanding defendant’s lack of control over the door which struck claimant, defendant’s failure to submit evidence that the placement of the metal plate – including the lack of both delineation of its edges and railings or other barriers – was not negligent, is fatal to its motion (see e.g. Bartholomew v Troy Hous. Auth., 191 AD2d 799 [1993]). Moreover, there are questions of fact concerning whether barrels and/or construction cones were located at the edge of the metal plate to warn pedestrians of the edge of the plate and adjacent excavated area. Accordingly, defendant’s motion for summary judgment is denied without regard to addressing the sufficiency of the opposition papers.

September 4, 2008
Binghamton, New York

Judge of the Court of Claims

The following papers were read on defendant’s motion:

1) Notice of Motion filed on April 24, 2008; Affidavit of Christina F. DeJoseph, Esq., sworn to on April 21, 2008, and attached Exhibits A through G.

2) Memorandum of Law in Support of Defendant’s Motion for Summary Judgment sworn to on April 21, 2008.

3) Affirmation in Opposition of Andrew L. Spitz, Esq., dated May 15, 2008; Affidavit of Grace Schneider sworn to on May 6, 2008, and attached exhibits.

4) Reply Affidavit of Christina F. DeJoseph, Esq., sworn to on May 27, 2008.

Filed papers: Claim filed on August 29, 2006; Verified Answer filed on September 29, 2006.

[1]. Claimant Adolf Schneider’s claim is derivative in nature, and unless otherwise indicated or required by context, the term “claimant” shall refer to Grace Schneider.
[2]. Defendant’s Motion to Dismiss, Exhibit A, ¶ 18.
[3]. Defendant’s Motion to Dismiss, Exhibit D, p 38.
[4]. This photograph was marked as Exhibit 2 at claimant’s deposition, and is attached to her affidavit submitted in opposition to defendant’s motion.
[5]. The photographs were marked as Exhibit 2 and Exhibit 4 at the deposition.