New York State Court of Claims

New York State Court of Claims

WARD v. THE STATE OF NEW YORK , #2009-038-559, Claim No. 113330-A, Motion No. M-76579


Synopsis


Claimant’s motion for summary judgment denied, as claimant failed to make a prima facie showing that broken tiles in correctional facility shower constituted a dangerous condition.

Case Information

UID:
2009-038-559
Claimant(s):
KENNETH WARD
Claimant short name:
WARD
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113330-A
Motion number(s):
M-76579
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
KENNETH WARD, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Glenn C. King, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 21, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an individual incarcerated in a State correctional facility, has filed this claim seeking compensation for injuries sustained when he allegedly slipped on broken floor tiles and fell in a shower room at Franklin Correctional Facility. The claim also seeks injuries allegedly sustained as a result of a correction officer allegedly inciting other inmates by informing them that the shower room had been closed because claimant had filed a grievance about defendant’s failure to repair the tiles. Claimant now moves for partial summary judgment on the issue of liability,[1] and defendant opposes the motion. A movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). However, when a movant fails to demonstrate its entitlement to summary judgment as a matter of law in the first instance, the motion must be denied (see Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; Tiano v Lane, 260 AD2d 908 [3d Dept 1999]). The submissions made in connection with a motion for summary judgment must be examined in a light most favorable to the party opposing the motion (Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]), and evidentiary submissions that are self-serving and conclusory will not necessarily support a prima facie case (see Garrett v Ohlsen, 282 AD2d 807, 808 [3d Dept 2001]; cf. Grossjahann v Geo. B. Wilkins & Sons, Inc., 244 AD2d 808, 809-810 [3d Dept 1997] [self-serving averments of facts may be probative]).

Claimant seeks to impose liability upon defendant for failing to timely repair broken shower tiles. Thus, in this “slip and fall” case, claimant must make a prima facie demonstration: (1) that a dangerous condition existed; (2) that the State either created this dangerous condition or had actual or constructive notice of the condition and failed to correct the problem within a reasonable period of time; and (3) that the dangerous condition was a proximate cause of claimant’s accident (see Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Dapp v Larson, 240 AD2d 918 [3d Dept 1997]; see also Goldman v Waldbaum, Inc., 297 AD2d 277 [2d Dept 2002]). Here, claimant’s submission on his motion falls short of demonstrating that the broken tiles constituted a dangerous condition.

Claimant contends that he slipped on “three broken loose tiles on the shower room floor” without further elaboration or discussion of the conditions of the floor (Ward Affidavit, ¶ 6). He asserts, without additional evidentiary support, that the condition of the shower room floor was “hazardous, dangerous [and] unsafe” (id. ¶ 14, see also id., ¶¶ 7, 10, 11, 13). However, “[t]he question of whether or not a dangerous or defective condition exists depends on the peculiar facts and circumstances of each case” (Schechtman v Lappin, 161 AD2d 118, 121 [1st Dept 1990]; cf. Moons v Wade Lupe Constr. Co., 24 AD3d 1005, 1006-1007 [3d Dept 2005] [defendant not entitled to summary judgment where it failed to support its motion with specific information about the size or condition of the defect]). Here, claimant’s motion is not supported by photographs of the allegedly dangerous condition, affidavits of any other person describing the broken tiles, an evidentiary showing of any other accident resulting from the broken tiles, nor any other demonstration of facts that would permit this Court to conclude that the broken tiles constituted a dangerous condition. Moreover, claimant’s affidavit in support of his motion is bereft of facts describing the area in which he slipped that would otherwise demonstrate that the area indeed amounted to a dangerous condition. Accordingly, claimant has not met his prima facie burden of demonstrating his entitlement to judgment as a matter of law, and his motion for summary judgment must be denied.

The Court notes that claimant’s motion is wholly silent with respect to the cause of action sounding in intentional tort and asserting injury due to a correction officer’s alleged incitement of other inmates. Accordingly, it is

ORDERED, that Motion No. M-76579 is DENIED.


July 21, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 113330-A, filed February 14, 2007;

(2) Notice of Motion for Summary Judgment, dated April 8, 2009;

(3) Affidavit of Kenneth Ward, sworn to April 8, 2009, with Exhibits A-L;

(4) Affirmation in Opposition of Glenn C. King, AAG, dated May 13, 2009.



[1]. Although the motion is noticed as one for summary judgment, claimant’s submission makes clear that he seeks judgment only on the issue of liability, and that damages cannot be decided as a matter of law.