New York State Court of Claims

New York State Court of Claims

CLARKE v. STATE OF NEW YORK, #2009-039-118, Claim No. 110758


Following a trial on liability, Court concludes that claimant did not offer sufficient proof to meet his burden of establishing, by a preponderance of the credible evidence, that defendant had notice of an allegedly dangerous icy condition. Claimant’s meteorological expert never visited the accident site, he relied on photographs that depicted the accident area after deicing and he offered two vastly different theories as to how and when the ice formed in the parking lot. Moreover, the Court was not persuaded by claimant’s theory that the ice was created following a freeze-thaw-refreeze cycle in light of evidence that temperatures in the days preceding claimant’s fall did not rise above freezing.

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):

James H. Ferreira
Claimant’s attorney:
Larry Dorman, P.C.
By: Law Office of Thomas J. GenovaBy: Thomas J. Genova, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: John L. Belford, IVAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 1, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Keith Clarke alleges that on January 21, 2005 at approximately 9:30 A.M., he slipped and fell on ice in the handicapped section of a parking lot located adjacent to Dormitory 1 on the campus of the State University of New York College at Old Westbury (hereinafter “SUNY Old Westbury”). Claimant alleges that defendant’s negligence created a dangerous icy condition, that defendant had notice of such condition and that defendant failed to take measures to remove the ice. Defendant avers that it had no notice of the icy condition, and that it took all reasonable actions relative to its snow and ice removal practices for that parking lot. A bifurcated trial of this matter was held on November 18, 2008. This decision relates solely to the issue of liability.

On the morning of January 21, 2005, claimant and his wife accompanied their daughter, Camille, on her return trip to SUNY Old Westbury for the spring semester. The weather that morning was cold and sunny, and the campus roads were dry. At approximately 9:05 A.M., claimant parked his car in a handicapped parking space that was located immediately adjacent to the dormitory where Camille resided and, together with his wife and daughter, began moving Camille’s belongings into the dorm. As claimant returned to the car, he stepped off the sidewalk onto the parking lot, slipped and fell.[1] Claimant stated that he slipped on an icy spot near his vehicle that was covered by snow.

Testimony from witnesses as to the condition of the lot varied but, generally, witnesses observed some scattered patches of ice and some light snow present in different parts of the parking lot or in the area where the claimant fell. Claimant, his wife and daughter described patches of ice and a slight amount or dusting of snow in the parking lot and in the area where claimant slipped. Officer Joseph Loretz, a campus police officer who responded to the accident, referred to “some sporadic patches of ice” in the lot approximately eight inches by eleven inches in size “scattered” about the lot, and “ice [and] melted snow” in the vicinity of the area where claimant fell, including some shoveled snow in the area in front of claimant’s parked vehicle. Louis D’Agostino, the Assistant Facilities Director, described “blotches of ice” or “[s]mall patches of ice” approximately four by twelve inches in size at the location of claimant’s fall. He directed that salt or sand be applied when he arrived at the accident scene.

Defendant’s “Snow Emergency Plan” for the campus, received into evidence as claimant’s exhibit 1, was in effect at the time of the accident. The plan sets forth priority areas for snow removal and procedures to be followed after a snow event. Under the plan, snow removal ceases once a determination is made by D’Agostino or another coworker after a visual inspection verifying that the areas have been cleared and are safe for use and travel. According to D’Agostino, he, or another employee, would drive through the campus during and after a shift to visually inspect areas for snow removal and assess whether the areas were properly addressed or needed additional efforts. In his EBT testimony, D’Agostino stated that the procedure to check for ice conditions after sanding and salting involved driving around, looking for “wet spots and depending on what the temperature was going to be that . . . night, I would have them sand those areas because I knew they were going to turn into ice.”

Areas to be plowed or cleared included, among others, “[a]ll parking lots”. The plan also provides for “special attention to disability spaces.” D’Agostino, who is named in the plan as one of the two employees having “[o]verall” responsibility for areas to be plowed or cleared, stated that, with respect to snow removal in the handicapped parking spaces, “you try to get it a little more clear than another spot or you throw a little more sand and salt down.” D’Agostino also acknowledged that, although the practice of nondisabled persons parking in the handicapped spaces in this lot was not allowed under campus rules, students were routinely permitted to use these spaces during “move-in” days as students returned to campus.

Evidence regarding weather conditions on campus in the days before and at the time of claimant’s accident indicates temperatures consistently below freezing and some snowfall. D’Agostino testified that on Monday, January 17, 2005, there was a snowfall that prompted the plowing of campus roads and the lot in question. He stated that on Wednesday, January 19, 2005, there was a light snow and potentially icy road conditions that led to snow removal and the application of sand and deicer on campus roads and the subject lot. Weather records maintained on the Old Westbury campus for the four days preceding the day of claimant’s accident show temperatures well below freezing and snowfall on January 17, 2005 and January 19, 2005.[2] However, neither the campus logs (claimant’s exhibits 1 and 2) nor the climatological data from the National Climatic Data Center (defendant’s exhibit A)[3] indicate there was any snowfall from the afternoon of Thursday, January 20, 2005 through Friday morning, January 21, 2005.

The testimony and exhibits relating to snow and ice removal in the days preceding claimant’s accident indicate that defendant implemented its Snow Emergency Plan and responded to the prevailing weather conditions (see claimant’s exhibits 1 & 2; defendant’s exhibit B [employee daily attendance records]). D’Agostino’s staff worked regular and overtime shifts while implementing snow removal procedures on Monday, January 17, 2005 and Wednesday, January 19, 2005. The snow removal on January 17, 2005 involved plowing, shoveling, salting and sanding the campus roads and parking lots after the snowstorm. On January 19, 2005, the campus heating plant logs show that D’Agostino was notified by campus police around 5:00 P.M. that “the roads were becoming icey [sic].” D’Agostino recalled the conditions as “a light snow that could have turned icy”. At 5:30 P.M. defendant started sanding and deicing the campus roads and parking lots, including the handicapped parking spots where claimant later fell, and concluded its activities at 4:00 P.M. on Thursday, January 20, 2005 (see defendant’s exhibit B). D’Agostino acknowledged that ice could have formed again, after defendant concluded its deicing efforts, because of the low overnight temperatures that followed. Officer Loretz testified that when he arrived at the accident scene at approximately 9:30 A.M. on January 21, 2005, he observed shoveling tracks and remnants of salting from the previous evening. D’Agostino could not recall whether he had conducted a visual inspection of the accident area during the evening preceding claimant’s fall.

It is well settled that the State, as a landowner, must maintain its “ ‘property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk’ ” (Miller v State of New York, 62 NY2d 506, 513 [1984], quoting Preston v State of New York, 59 NY2d 997, 998 [1983]). However, the State “is not an insurer against every injury that might occur on its property” (Covington v State of New York, 54 AD3d 1137, 1137-1138 [2008]), and “[n]egligence cannot be presumed from the mere happening of an accident” (Mochen v State of New York, 57 AD2d 719, 720 [1977]); see also Melendez v State of New York, 283 AD2d 729 [2001], lv dismissed 97 NY2d 649 [2001]).
Where a slip and fall occurs in winter conditions, “analysis [begins] with the well-settled principle that a party who possesses or controls real property is under a duty to exercise reasonable care under the circumstances” (Marcellus v Nathan Littauer Hosp. Assn., 145 AD2d 680, 681 [1988]). Notably, ascertaining whether actions taken were reasonable in such matters must be considered “ ‘with an awareness of the realities [of the problems] caused by [winter] weather’ ”

(Pappo v State of New York, 233 AD2d 379, 380 [1996]; Goldman v State of New York, 158 AD2d 845 [1990], appeal dismissed 76 NY2d 764 [1990]; see also Russell v Hepburn Hosp., 173 AD2d 985, 986 [1991]; Gary v State of New York, Ct Cl, September 24, 2007, UID No. 2007-044-018, Claim No. 106140, [Schaewe, J.]). Thus, “[a] defendant will only be held liable in a slip-and-fall accident involving snow and ice when it created a dangerous condition or had actual or constructive notice thereof” (Zabbia v Westwood, LLC, 18 AD3d 542, 544 [2005]; see also Simon v Maimonides Med. Ctr., 52 AD3d 683 [2008]; Robinson v Trade Link Am., 39 AD3d 616 [2007]; Olivieri v GM Realty Co., LLC, 37 AD3d 569 [2007]).

A defendant’s creation of a dangerous condition constitutes actual notice (see Mercer v City of New York, 223 AD2d 688, 690 [1996], affd 88 NY2d 955 [1996]; Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 [1984], affd 64 NY2d 670 [1984]). However, “ ‘[t]o 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 defendant’s employees to discover and remedy it’ ” (Crawford v AMF Bowling Ctrs., Inc., 18 AD3d 798, 799 [2005], quoting Gordon v American Museum of Natural Hist., 67 NY2d 836, 837 [1986]; see also Cantwell v Rondout Sav. Bank, 55 AD3d 1031, 1032 [2008]). A defendant’s “general awareness that snow or ice might accumulate” (Torosian v Bigsbee Vil. Homeowners Assn., 46 AD3d 1314, 1315 [2007], quoting Martin v RP Assoc., 37 AD3d 1017, 1017-1018 [2007]) or “that icy conditions may exist is insufficient to establish constructive notice” (Richer v State of New York, 31 AD3d 943, 944 [2006], quoting Boucher v Watervliet Shores Assoc., 24 AD3d 855, 857 [2005]; see also Lewis v Bama Hotel Corp., 297 AD2d 422, 423 [2002] [plaintiff’s testimony that he observed “scattered patches of hard-packed snow and ice” suffices only “to provide a general awareness that a dangerous condition might exist, which is insufficient to establish constructive notice of the injury-producing condition”]; Brunelle v State of New York, Ct Cl, May 9, 2007, UID No. 2007-015-551, Claim No. 111522 [Collins, J.][“proof which establishes no more than a ‘general awareness’ that outdoor areas become wet or icy during inclement weather is insufficient to establish constructive notice of the specific condition causing the injury [citations omitted”]).

As the trier of fact charged with assessing the credibility of the various witnesses and evaluating the evidence, the Court finds that claimant has not offered sufficient proof to meet his burden of establishing, by a preponderance of the credible evidence, that defendant had notice of the allegedly dangerous icy condition. There was no proof offered by claimant to establish that defendant had actual notice of the ice patch which caused claimant to slip either through defendant’s creation of the icy condition or otherwise. D’Agostino and Loretz testified during defendant’s direct case that there had been no complaints about ice in this lot in the week before claimant’s fall and that neither had received reports of anyone falling in that area. Both witnesses also stated that the lot in question was not an area with recurring problems of ice buildup or of ice melting and refreezing.

Absent proof that defendant had actual notice of the condition, the question before the Court is whether defendant should have known, in the exercise of reasonable care, that a dangerous condition existed where claimant fell, and whether defendant failed to remedy that condition within a reasonable period of time. SUNY Old Westbury records and testimony adduced at trial from D’Agostino and Loretz indicate the presence of some snowfall on January 17, 2005 and January 19, 2005. While the amount of accumulation at the location of the accident on those dates is unclear[4], the proof shows that on both days defendant implemented its Snow Emergency Plan and responded appropriately to the inclement weather. On January 17, 2005, employees were called in and assigned snow removal duties, including plowing, shoveling, sanding and salting. On January 19 and 20, 2005, similar efforts were undertaken, including sanding and deicing the roads, lots and area where the accident occurred.

Claimant relied on a meteorological expert, Richard Westergald, to support claimant’s theory as to weather conditions in the days at SUNY Old Westbury leading up to claimant’s accident and as to when the ice patch formed. The Court, however, did not find his testimony credible. Westergald never visited the accident site, and he relied on two photographs taken on the day of the accident that depict the accident area after some deicing had occurred (see claimant’s exhibits 5 and 6). Claimant’s expert also appeared to base his findings largely on information from LaGuardia Airport, and offered two vastly different theories as to how and when the ice formed in the parking lot. He stated that the ice in the parking lot “most likely” formed on January 15, 2005, the last time the air temperature at LaGuardia was above freezing at 34°F, which was six days prior to the accident. He then opined that based on a high air temperature of 30°F recorded at LaGuardia on January 20, 2005, it was “possible” for any snow on the lot to have melted and then to have refrozen sometime between 2:30 P.M. that day and the time of the accident on January 21, 2005. Notably, although claimant’s expert indicated that he relied on “data from several stations”, the record suggests that he relied heavily on weather data collected from LaGuardia Airport, as well as temperature data from an unofficial citizen weather site approximately two miles from SUNY Old Westbury in Muttontown, New York. He referred to LaGuardia because it was “the nearest official record of snowfall to the location” at Old Westbury. While use of LaGuardia data is not flawed, Westergald never provided, in the Court’s estimation, a plausible explanation for using or not using the weather data contained in the records maintained on the SUNY campus, or by other weather stations located in Long Island. Defendant’s counsel aptly pointed out the existence of other official weather stations, such as Mineola, that were apparently closer to the site of the accident but never considered by claimant.[5]

Further, while the Court is cognizant of the concept of a freeze-thaw-refreeze cycle and how that may contribute to ice formation, the evidence shows that temperatures on campus in the days preceding claimant’s fall did not rise above freezing. In fact, the warmest air temperature recorded in the SUNY Old Westbury heating plant and campus police records between January 17, 2005 and January 21, 2005 was 28°F on January 20, 2005. Accordingly, given the consistently below freezing temperatures recorded on campus, and the non-specific testimony of claimant’s meteorologist as to how and when the subject ice patch formed, the Court rejects claimant’s contention as to how thawing and refreezing created the condition at issue.

Based on the foregoing, the Court finds there is insufficient proof that defendant had constructive notice of the specific dangerous condition that was the proximate cause of claimant’s accident. Since the evidence in this case must be examined under the lens of the realities of winter weather, defendant’s general awareness that small ice patches might exist or may have existed on the subject lot after efforts had been made to sand and deice the area is insufficient to charge it with constructive notice of the specific blotch or patch that caused claimant’s injuries. Moreover, there is no evidence of precipitation in the period between when deicing activities concluded on the lot and claimant’s fall, and no evidence of any meteorological phenomena, such as fluctuating temperatures, that would have caused melting and refreezing and thereby have placed defendant on notice that a dangerous condition existed.

Even assuming that defendant had notice of a dangerous icy condition where claimant fell, claimant has not proven by a preponderance of the credible evidence that the condition was present for a sufficient period of time before claimant’s fall for defendant to discover and remedy the dangerous condition (see Martin v RP Assoc., 37 AD3d 1017, 1017-1018 [2007]; see also Lenti v Initial Cleaning Servs., Inc., 52 AD3d 288, 289 [2008]). Since claimant’s meteorological expert offered two competing theories of when the ice patch formed - either “most likely” on January 15, 2005, or “possibl[y]” sometime between 2:30 P.M. on January 20, 2005 and 9:30 A.M. on January 21, 2005 - the Court cannot ascertain a credible time period that reflects how long the ice patch existed before claimant’s fall.

Finally, while claimant’s fall was unfortunate, the proof does not show that defendant’s actions and conduct relative to snow and ice removal were unreasonable. “The mere presence of ice does not establish negligence on the part of the entity responsible for maintaining the property” (Lenti v Initial Cleaning Services, supra, at 289) and the failure of a landowner “ ‘to remove all snow and ice from a sidewalk or parking lot does not constitute negligence’ ” (Wheeler v Grande’Vie Senior Living Community, 31 AD3d 992, 992-993 [2006], quoting Gentile v Rotterdam Sq., 226 AD2d 973, 974 [1996][emphasis in original]; see also Cardinale v Watervliet Hous. Auth., 302 AD2d 666, 667 [2003]). Here, defendant implemented its snow emergency plan and responded reasonably to the winter weather that occurred in the days preceding claimant’s fall. The lot was plowed, sanded and salted after the January 17, 2005 snow event, and following the icy condition and dusting of snow that occurred on January 19, 2005, the lot, including the area where claimant fell, was sanded and deiced. Notably, Officer Loretz testified that when he arrived at the accident scene on the morning of the accident, he observed in the parking lot “some shoveling tracks” and “remnants of like [sic] a salting from the night before”, which corroborates D’Agostino’s testimony about deicing the lot the previous afternoon. Under such circumstances, the mere presence of scattered patches of ice does not establish that defendant was negligent in its snow removal efforts.

For the aforementioned reasons, the Court finds that claimant has failed to prove by a preponderance of the credible evidence his claim against defendant. Accordingly, this claim is dismissed in its entirety. All motions or objections this Court may have previously reserved on or not previously decided are hereby denied.

The Clerk of the Court is directed to enter judgment accordingly.

June 1, 2009
Albany, New York

Judge of the Court of Claims

[1].Claimant’s exhibits “5” and “6” are photographs which depict the location of claimant’s fall. Claimant’s daughter and wife marked exhibit “6” with a green “X” and a red “X”, respectively, to delineate where claimant fell. The Court received these items into evidence not for the purpose of showing the condition of the lot as it existed at the time of the accident but to show the general layout of the area. The photos were taken within 15 to 20 minutes after the ambulance departed the scene and after maintenance employees put down salt.
[2].The campus weather records are comprised of logs maintained at the campus heat plant (claimant’s exhibit 1) and by the campus police (claimant’s exhibit 2). These records were received into evidence without objection.
[3].The Court also received into evidence as defendant’s exhibit A, a compilation of climatological data for January 2005 from various locations throughout New York State. This climatological data is certified by the Director of the National Climatic Data Center, which is part of the National Oceanic and Atmospheric Administration.
[4].While Loretz testified as to a “dusting” of snow on January 19, 2005, and SUNY Old Westbury records refer to “snow” or “light snow” on January 17 and 19, 2005, total accumulation is not provided. Claimants’ meteorological expert, relying on data collected by the National Climatic Data Center, testified that 3/10 inches of snow fell on January 17, 2005 and 8/10 inches fell on January 19, 2005 at LaGuardia Airport (defendant’s exhibit A, p.33).
[5]. Claimant’s expert did refer to a temperature reading of 36°F in Mineola, Long Island ,on January 20, 2005 to support claimant’s melting-freezing theory, but only after defendant’s counsel pointed out that particular reading.