|Claimant short name:||CORSO|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the only proper defendant.|
|Judge:||S. MICHAEL NADEL|
|Claimant's attorney:||Jonathan D'Agostino
By: Edward J. Pavia, Jr.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Steven Kletzkin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 7, 2009|
|Appellate results:||Affirmed, 2d Dept, 2010 NY Slip Op 04538, May 25, 2010|
|See also (multicaptioned case)|
The claimant seeks to hold the defendant liable for injuries she sustained on October 18, 2004, when she allegedly slipped and fell on lettuce on a stairway in the Richmond County Family Courthouse, located at 100 Richmond Terrace, Staten Island. At the time, the claimant operated a local restaurant in the same neighborhood where the courthouse was located.
The claimant testified that shortly after 1:00 PM, she entered the courthouse through the main entrance, and went to the record room to pick up some documents concerning child support for her daughter. When she arrived at the record room, located on the main level of the building, she recognized the employee working there as a patron of her restaurant, although she did not know him by name. He informed her that the documents she sought were located in the child-support unit in the basement. She descended a staircase, consisting of 10 to 15 steps, then a landing, and then more steps leading to the basement level. The claimant believed that this was the only staircase that led to the basement level of the courthouse.
As she descended the stairs, the claimant noticed what she described as green shredded lettuce, the type that would be found in a sandwich, scattered across the third and fourth steps from the top. The claimant used the handrail to reach the bottom landing. When she arrived at the basement, there was no one at the child support unit, so she came back up the same staircase, climbed past the lettuce, and returned to the record room where she told the clerk that there was no one in the child-support unit, and that there was shredded lettuce on the stairs. He told her that everyone must be out for lunch, but that he would find someone to help her.
At some point, the clerk told her to go back down the stairs, because someone should be in the office by then. She went back down the stairs, observed the lettuce on the steps on the way down, and found that there was no one in the child-support unit to help her. She went back up the stairs, spoke to the same record room clerk, who told her that she should wait downstairs for someone to help her.
For a third time she went downstairs, and observed the lettuce on the way down. On this occasion, there was someone working there, who told her to go upstairs and wait there a bit longer. She ascended the stairs, and again observed the lettuce. The record room clerk told her to sit on a nearby bench and to wait a few minutes. Finally, the clerk informed her that someone was in the child-support unit to assist her, and that she should go back to the basement.
The claimant descended the staircase, for the fourth time, and as she was holding the railing she slipped on the lettuce that was located on the third step from the top. As she was trying to regain her balance, she let go of the railing and fell down the steps to the landing where she lost consciousness. She estimated that forty minutes had passed from the time she had first informed the record room clerk that lettuce was on the staircase. She reiterated that she had noticed the lettuce on each of her prior ascents and descents on the stairs that afternoon.
Court Officer Deborah Monacho testified on the defendant's behalf. Officer Monacho has been assigned to Richmond Family Court for eight years. She testified that she was familiar with the claimant's accident because she was called to testify at a prior deposition on the matter, but had no independent recollection of the accident or of the claimant. Officer Monacho was shown a copy of the Aided Report prepared in connection with the incident. She stated that she neither prepared the report, nor did reading it refresh her recollection as to what had occurred. Officer Monacho stated that in 2004, the record room was located on the first floor of the court house, and she believed, but was not sure, that the child-support unit was located on the basement level of the building. She stated that there was a staircase that led from the first floor to the basement, and it was the only means by which the public could access the basement. She testified that the courthouse was open to the public during lunch hour.
Prior to calling Officer Monacho, the defendant sought to call Court Officer Daniel Ostapiak to testify, and the claimant moved to preclude him from testifying. The claimant had served upon the defendant a Notice of Discovery and Inspection (Court Exhibit 1, December 27, 2006). Item three seeks: "The names and addresses of all persons claimed to have either witnessed the accident or to have first hand [sic] knowledge of its occurrence. The plaintiff will object at the time of trial to the testimony of any person not so identified." The defendant's Response to Claimant's Notice for Discovery and Inspection states: "At this time defendant is unaware of the identity of any witnesses other than the claimant. However, defendant reserves the right to call any witness(es) that may be identified through subsequent investigation up to and including the time of trial of this action" (Court Exhibit 2, April 24, 2007).
On September 13, 2007, the claimant served a Notice to Take Deposition Upon Oral Examination upon the defendant (Court Exhibit 5). It seeks "the testimony, upon oral examination, of all Defendants herein . . . by someone having knowledge of the facts." On December 3, 2007, Court Officer Deborah Monacho was produced by the defendant for a deposition. She testified that she had no independent recollection of the incident involving the claimant (Court Exhibit 3, Deposition of Deborah Monacho, page 18). Officer Monacho was questioned about an Aided Report (Court Exhibit 2, Exhibit A annexed thereto), and she stated that the report was prepared by Officer Ostapiak, who still worked at Richmond County Family Court (Monacho EBT, page 8).
Subsequently, a trial date was set for March 25, 2008. Approximately one week before the trial, the defendant informed the claimant by letter: "Defendant intends upon calling as a witness, Court Officer Daniel Ostapiak . . ." (Court Exhibit 4). The trial was then adjourned to April 9, 2008, at the claimant's request.
At trial, when the defendant sought to call Ostapiak and the claimant objected, the defendant made an offer of proof that the officer would testify that he did not witness the claimant fall, and that to the best of his recollection, there was no lettuce on the stairs when he responded to the scene.
CPLR 3101 (a) provides that there be "full disclosure of all matter material and necessary in the prosecution or defense of an action." In determining when disclosure is required, "the test is one of usefulness and reason" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 ). "This statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise [citations omitted]" (Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d 371, 376 ).
In the context of the exchange of names of witnesses, it has been held that eyewitnesses to the occurrence and notice witnesses should be divulged (see generally David Siegel, New York Practice § 349, at 567-68 [4th ed]), including not only eyewitnesses, but anyone who can shed light on what happened (Zayas v Morales, 45 AD2d 610 [2nd Dept 1974]).
With respect to depositions, a defendant municipality or other entity such as a corporation or the State of New York has the right to determine which of its officers with knowledge of the facts will appear for pretrial examination (see D'Ulisse v Town of Oyster Bay, 81 AD2d 825 [2d Dept 1981]; see also Consolidated Petroleum Term. v Incorporated Vil. of Port Jefferson, 75 AD2d 611 [2d Dept 1980]).
CPLR 3126 (2) provides that an order precluding a party from introducing, in evidence, designated documents or items of testimony may be granted where a party fails to disclose information which ought to have been disclosed in discovery (see Getty v Zimmerman, 37 AD3d 1095, 1096-1097 ; Manzo v Nealon, 18 AD3d 1043, 1043-1044 ). It is also well settled that the trial court has broad discretion in controlling the conduct of the trial (see Feldsberg v Nitschke, 49 NY2d 636 ).
At the trial of this claim, the Court granted the claimant's application to preclude the testimony of Court Officer Ostapiak. It is apparent from the defendant's offer of proof as to the expected testimony of Ostapiak (as well as the deposition and trial testimony of Monacho) that Ostapiak, and not Monacho, ought to have been produced for a deposition. The Court can only speculate as to what informed the defendant's decision to produce Monacho at the deposition and Ostapiak at the trial. When given an opportunity to explain, in opposition to the claimant's application to preclude Ostapiak's testimony, the Assistant Attorney General shed no light on that decision.
Based on the totality of the circumstances, the production for deposition of an employee without any knowledge of the relevant facts, coupled with the tardy disclosure of Ostapiak as a witness at trial, warranted preclusion of his testimony, since to permit otherwise would constitute "ambush and unfair surprise" (Spectrum Sys. Intl. Corp. v Chemical Bank, supra).
It is well settled that to establish negligence in a slip and fall case, the claimant must demonstrate that the defendant created the dangerous condition, or had actual or constructive notice of the condition for a sufficient length of time to discover and remedy it (see Goldenfeld v Euro Comfort Furniture, Inc., 48 AD3d 515 [2d Dept 2008]). 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 a defendant's employees to discover and remedy it" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 ).
In the instant case, the Court finds that the shredded lettuce on the steps constituted a dangerous condition, of which the defendant had actual notice. The claimant's uncontroverted and credible testimony was that she had reported the existence of scattered shredded lettuce on the steps to the record room clerk, and that the clerk with this knowledge, nevertheless, continued to direct the claimant, on three additional occasions, spanning a period forty minutes, to go back down the stairs. This demonstrates that the defendant was aware of the dangerous condition for an ample period of time to correct the condition. Even if the claimant had not informed the record room clerk of the condition, 40 minutes is a sufficient amount of time for the defendant to have discovered and remedied the condition, thereby constituting constructive notice (see Gordon v American Museum of Natural History, supra).
"Where a [claimant] has presented evidence that a dangerous condition exists on the property, the burden shifts to the landowner to demonstrate that he or she exercised reasonable care under the circumstances to remedy the condition and to make the property safe . . ." (Cupo v Karfunkel, 1 AD3d 48, 52 [2d Dept 2003]). Here, the defendant failed to offer any explanation as to why 40 minutes was an insufficient length of time to remove the lettuce.
However, the claimant must also be held partially culpable for the accident. A claimant is bound to see that which is there to be seen and has a duty to proceed accordingly with respect to a readily observable condition (see Weigand v United Traction Co., 221 NY 39, 42 ; Luksch v Blum-Rohl Fishing Corp., 3 AD3d 475 [2 Dept 2004]). By her own account, the claimant discovered the condition 40 minutes prior to her fall, and passed the lettuce on the staircase six prior times, aware of its presence, and avoiding it each time.
In view of the foregoing, the Court finds the defendant 75% liable for the claimant's injuries.
The issue of damages will be set down for trial upon the filing of a note of issue and certificate of readiness pursuant to Rule 206.12 of the Uniform Rules for the Court of Claims.
LET INTERLOCUTORY JUDGMENT BE ENTERED ACCORDINGLY.
April 7, 2009
New York, New York
S. MICHAEL NADEL
Judge of the Court of Claims