New York State Court of Claims

New York State Court of Claims
BERGMAN v. STATE OF NEW YORK, # 2009-040-096, Claim No. 111032


Trial - Liability only. At trial, Defendant failed to establish its affirmative defense that Claimant's sole remedy is limited to NYS Workers' Compensation Law. Court finds Claimant established Defendant is 40% responsible for her slip and fall on snow and ice at Pilgrim Psychiatric Center.

Case information

UID: 2009-040-096
Claimant short name: BERGMAN
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 111032
Motion number(s):
Cross-motion number(s):
Claimant's attorney: MICHAEL A. BARNETT, P.C.
By: Michael A. Barnett, Esq.
Defendant's attorney: ANDREW M. CUOMO
Attorney General of the State of New York
By: Todd A. Schall, Esq., AAG
Third-party defendant's attorney:
Signature date: December 15, 2009
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


The Court finds that Defendant failed to establish, by a preponderance of the credible evidence, its affirmative defense that Claimant's sole remedy is limited to the benefits available under the New York State Workers' Compensation Law. That being the case, the Court further finds that Defendant is 40% responsible for personal injuries sustained by Claimant, Michelle Levinn Bergman, on December 28, 2004 when she slipped and fell on ice and snow conditions on a path or walkway at the Pilgrim Psychiatric Center ("Pilgrim"), located in West Brentwood, New York. The State failed to address a dangerous winter condition of which it had constructive notice. The Court also concludes that Claimant is 60% responsible for her fall on account of her election to go on a personal excursion, while wearing only sneakers on her feet, which required her to walk in an area she knew was in an icy and snowy condition.

A bifurcated trial, addressing liability issues only, was held on June 2, 2009 at the Court of Claims in Hauppauge, New York. There were seven witnesses: Claimant; Dr. Joseph Friedman; Robert Ryan, Joseph Rinaldi, Carol Isasi, Sergeant Chris Accinni, and Safety and Security Officer John R. DeCandia. Thereafter, the parties requested and were granted additional time to submit post-trial memoranda.


In December 2004, Claimant was a clinical research coordinator employed by the Mount Sinai Hospital School of Medicine ("Mount Sinai"). Ms. Bergman was stationed full-time as a volunteer at Pilgrim, but would go to Mount Sinai on occasion for meetings and training. Claimant agreed that she had: a Pilgrim identification badge; access to certain buildings on the Pilgrim campus; access to a Pilgrim telephone; and an assigned Pilgrim telephone extension. Ms. Bergman received some training and medical testing at Pilgrim (see Ex. D). Carol Isasi, who was Pilgrim's Director of Administrative Services and oversaw all support departments, including maintenance, housekeeping, and personnel, also confirmed Claimant's status as a "registered volunteer" at Pilgrim and stated that she could have filed for her workers' compensation benefits through Pilgrim.

At the same time, while at Pilgrim, Claimant worked on two computers, one supplied by Pilgrim and the other by Mount Sinai. Her office supplies were procured under a Mount Sinai account. She was paid by Mount Sinai (see Ex. 4). As noted, she went to Mount Sinai on occasion for training and meetings. She filed for and received workers' compensation benefits in connection with her accident through Mount Sinai (see Ex. 2). Some of the training noted above occurred under the auspices of Mount Sinai (see Ex. D, unnumbered page 5).

Dr. Joseph R. Friedman is Claimant's cousin and also was her supervisor, both at Pilgrim and at Mount Sinai (see Ex. C, p. 12). He is employed by Pilgrim as a psychiatrist and Science Director (Tr., pp. 160-162). He did his residency and fellowship training at Mount Sinai and had a faculty appointment in the Department of Psychiatry there in 2004.

Dr. Friedman explained that Mount Sinai hired and trained research assistants. They were paid from research grant funds, most of which were administered through Mount Sinai. Because Pilgrim was a site for a number of Mount Sinai research projects/programs, some assistants were directed by Mount Sinai to work at Pilgrim. Mount Sinai would continue, however, to exercise administrative control over such research assistants. Dr. Friedman said Claimant was hired and paid by Mount Sinai and obligated to meet whatever administrative responsibilities were imposed by the Department of Psychiatry. He said that Ms. Bergman was a research coordinator for him for about 10 years, initially at another Mount Sinai affiliate, Bronxville Medical Center, and, later, at Pilgrim. Claimant agreed that she reported to Dr. Friedman, who supervised her work, which included daily interaction with Pilgrim patients (Tr., pp. 96-97). On at least one occasion, Dr. Friedman evaluated Claimant's performance as a volunteer at Pilgrim (see Tr., p. 167; Ex. D, unnumbered page 7). At the same time, Ms. Bergman also agreed that her work relationship with Dr. Friedman was through Mount Sinai (Tr., p. 118).

On December 28, 2004, at about 4:30 p.m., Claimant traveled from her office located on the Pilgrim campus to go with a colleague to the gymnasium located in a nearby building ("Building 102"). Claimant testified that she drove the quarter-mile distance between the two buildings "because of the conditions on the ground. It was icy and snow[y] and [I] did not want to walk" (Tr., p. 71). She was wearing sweatpants, sneakers, a T-shirt and a heavy coat that extended just below her knees. She carried only her car keys.

Ms. Bergman said it had snowed 24 to 48 hours earlier. Climatological and storm data confirms that "heavy snow" fell between 2:00 a.m. and 7:00 a.m. on the morning of Monday, December 27, 2004, with four to six inches accumulating across Western Suffolk County and parts of Nassau County (Ex. B, unnumbered page 6). Islip, Long Island MacArthur Airport reported 6.0 inches of snow fell on December 26-27, 2004 and that the high temperature recorded there approached, but did not go above, the freezing mark on either December 27, 2004 or the next day, the date of Claimant's accident (Ex. B, unnumbered pages 2-3).

The lot where Claimant parked is visible on the left-hand side of the photograph that is Exhibit E-8(1) , as well as in the foreground of the photograph that is Exhibit E-16. The sidewalk or path where Claimant fell, likewise, is depicted in those exhibits. Claimant explained, that she "was able to park fairly close because there [were] not many people there due to the weather. And, I walked over the curb on to the grass and proceeded to go on to the sidewalk" (Tr., p. 78). She stated that the parking lot was partially cleared, but that there were several inches of "hard, crunchy" ice and snow on the grass (Tr., pp. 79-80).

After she reached the sidewalk, Ms. Bergman testified that she proceeded very slowly and carefully, looking down in front of her to try to pick the best path forward because she saw that the path was icy. She and her companion were "outraged" by the conditions (Tr., p. 112; see Ex. C, p. 27). However, they never discussed the possibility of abandoning their walk (Ex. C, p. 53). Claimant stated that the path in front of Building 102 "was not cleared. There was no path. The path was covered ... There were little spots of non-covered patches, but for the most part, it was very icy" (Ex. C, p. 22). "[T]he majority of the sidewalk was covered ... It was white, little patches of, of, little circles of nothing and then white snow, ice all covered the, the sidewalk" (Tr., p. 83). Ms. Bergman also said that there were "big sheets" of ice (Ex. C, p. 30) and patches of "different thicknesses" (Tr., p. 113). Claimant said that she walked perhaps ten feet on the sidewalk before she slipped. "My left foot came out [from] under me and I tilted towards the left and I landed on my left side" (Tr., p. 84). After she fell, Ms. Bergman said she was sitting with a large piece of thick, white ice all around her. Claimant testified that it did not appear that the path had been shoveled, sanded, or salted (Tr., p. 86). Ms. Bergman indicated that she fell near a prominent seam in the concrete where the left-hand edge of a shadow falls across the walk in the photograph that is Exhibit E-16.

Claimant said that her companion was walking a few steps in front of her, turned around upon hearing Ms. Bergman scream, and saw her fall. Her colleague called for assistance and Pilgrim safety officers appeared within a couple of minutes. Claimant said that she did not move and was in the same spot where she fell when the officers arrived. She told them "I was embarrassed that I fell" and declined an offer to have her transported by ambulance to a nearby hospital (Tr., p. 87). She agreed that the incident report fairly and accurately described the circumstances surrounding her accident (see Ex. 1).

Sergeant Accinni and Safety and Security Officer DeCandia responded to the accident call. Unfortunately, their recollections contradicted each other in a number of respects, including: which officer arrived first; whether or not Sergeant Accinni got out of his police vehicle; whether or not Sergeant Accinni spoke directly with Claimant; and whether it was sunny or overcast.

Officer DeCandia testified that, when he arrived, Sergeant Accinni already was at the scene speaking with Claimant. She was sitting on an ice patch that went across the entire width of the sidewalk, which he estimated to be about five feet, and was two to three feet long. He said that it looked like "freshly frozen water" and that it was "the only section on that sidewalk that was, had any ice on it and it was clearly visible to me when I walked up to it from a distance" of about 30 feet (Tr., pp. 186, 204). At his examination before trial, however, the officer described the condition as being like "black ice" (Tr., p. 188). Officer DeCandia recalled that the "sun was beating down. It was sunny out" and estimated that the temperature was "a little above freezing" an hour before Claimant's accident (Tr., pp. 180-181, 204). He "made an assumption" that snow had melted and then froze again to create the condition, though he did not observe any such thaw/freeze occur (Tr., pp. 191-192). Officer DeCandia testified that he prepared the incident report in connection with Claimant's fall (see Ex. 1). He agreed that the report does not state that the only icy portion of the sidewalk was the place where Claimant fell.

By contrast, Sergeant Accinni testified that it was "overcast" and "cold," "it was a cloudy day" and agreed that the sun was not beating down (Tr., pp. 218-219). He also stated that it had snowed on the previous day. He said Officer DeCandia was first to arrive at the scene. Sergeant Accinni further stated that he never spoke directly with Claimant and that Officer DeCandia relayed information to him. He stated that he could not see snow or ice on the walkway. He added, however, he was not able to observe conditions because he never got out of his police vehicle and was about 50 feet away from Claimant.

In December 2004, Robert Ryan's responsibilities included oversight of maintenance at the facility. Joseph Rinaldi was the Director of Housekeeping. They agreed that the Maintenance Department was responsible for plowing snow on the Pilgrim campus which, Mr. Ryan said, contained 20-25 buildings and a network of roads and sidewalks spread over 120-130 acres (see also Ex. A). Mr. Ryan said that the Maintenance Department performed that task in accordance with written policies and protocols and followed a similar procedure for every snowstorm. Teams organized and assembled in advance of a storm. In this instance, it appears that overtime was authorized for staff to begin assembling on the evening of December 26, 2004 and that overtime snow removal operations continued on December 27, 2004 (see Ex. 3). Mr. Ryan testified that snow removal operations also typically would occur during normal operating hours (weekdays, 7:00 a.m.-3:30 p.m.) and could have happened on December 28, 2004, though such work would not be enumerated in any documentation. Mr. Ryan, Mr. Rinaldi and Ms. Isasi agreed that Housekeeping and Maintenance each had some responsibility for snow removal on sidewalks.

Mr. Ryan specifically agreed that the Maintenance Department was responsible for snow removal on the sidewalk where Claimant fell (see Ex. E-1). He explained that Maintenance used equipment called skid loaders, or skid steers, with 4-5 foot wide, steel-edged buckets attached to the front, to plow sidewalks. "Whether [the bucket] removes the ice or not, it varies" (Tr., p. 17). In general, he had sometimes seen skid loaders leave layers and/or patches of snow or ice on sidewalks prior to December 28, 2004. Mr. Ryan said that there are no specific records with respect to the snow removal operations done on the sidewalk in question on or before December 28, 2004.

Mr. Rinaldi testified that the Housekeeping Department was responsible for snow removal from all building entrances up to the curb, emergency exits, every handicapped area, walkway and pathway, using shovels and snow blowers, and putting down snow melt. He and Ms. Isasi agreed that Building 102 had housekeeping staff on premises. Ms. Isasi also said that ice melt was supplied to each building before the winter season began. Mr. Rinaldi testified that sometimes Maintenance plowed walkways. Once that work was done, Housekeeping would be called to put salt in that area. "So, we kind of work[ed] in conjunction with one another," Mr. Rinaldi said (Tr., p. 235). Mr. Ryan testified that, if a layer of snow and/or ice had been reported on the sidewalk depicted in Exhibit E-1, maintenance "would probably have turned it over to housekeeping" (Tr., p. 47). Mr. Rinaldi testified that housekeeping did not keep records of snow events. Thus, he could not say if snow melt had been placed on that sidewalk at any time prior to Claimant's fall (see Ex. E-16).

Claimant agreed that she never made any complaints to anyone at Pilgrim about conditions on the walkway prior to her accident. Mr. Ryan, Ms. Isasi, Officer DeCandia, and Sergeant Accinni, each testified that they could not recall any complaints about the condition of sidewalks, on or about December 28, 2004.


While employees are not permitted to sue their employers for accidental injuries that occur in the course of employment, the Workers' Compensation Law generally does not bar suits in cases where the employee is injured by a third person (Fung v Japan Airlines Co., Ltd., 9 NY3d 351, 357 [2007]). Under some circumstances, however, a "person may be deemed to have more than one employer and may, while employed by one entity [referred to as his or her general employer], also be a special employee of another" (Graziano v 110 Sand Co., 50 AD3d 635, 636 [2d Dept 2008]). "A special employee is described as one who is transferred for a limited time of whatever duration to the service of another General employment is presumed to continue, but this presumption is overcome upon clear demonstration of surrender of control by the general employer and assumption of control by the special employer We recognize that a person's categorization as a special employee is usually a question of fact and generally no one [factor] is decisive While not determinative, a significant and weighty feature has emerged that focuses on who controls and directs the manner, details and ultimate result of the employee's work" (Thompson v Grumman Aerospace Corp., 78 NY2d 553, 557-558 [1991] [citations omitted]). Other factors include: who is responsible to the worker for payment of wages, maintenance of workers' compensation and employee benefits, and providing training and equipment; "who had the right to hire and discharge the worker, and whether the work being performed was in furtherance of the special employer's or the general employer's business" (Balamos v Elmhurst Realty Co. I, LLC, 56 AD3d 705, 705 [2d Dept 2008]; Graziano v 110 Sand Co., 50 AD3d 635, supra at 636; Cameli v Pace Univ., 131 AD2d 419, 420-421 [2d Dept 1987]).

To establish a prima facie case of negligence, Claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a breach of that duty; and (3) Defendant's breach of that duty was a substantial factor in the events that caused the injury suffered by Claimant (see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Donohue v Copiague Union Free School Dist., 64 AD2d 29, 32-33 [2d Dept 1978], affd 47 NY2d 440 [1979]; Patrick v State of New York, 11 Misc 3d 296, 320 [Ct Cl 2005]; PJI 2:10, 2:70). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, Claim No. 107632, June 19, 2006, Hard, J. [UID No. 2006-032-505]; see Burton v State of New York, 283 AD2d 875, 877 [3d Dept 2001]).

The State has a duty to maintain its facilities "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," with foreseeability constituting the measure of liability (Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100, cert denied 412 US 939 [1973]; see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]).

The State is not an insurer of public safety, however, and negligence cannot be inferred solely from the occurrence of an accident (see Tripoli v State of New York, 72 AD2d 823 [3d Dept 1979]; Ebuzoeme v City Univ. of N.Y., 10 Misc 3d 1079[A] [Ct Cl 2005]). Moreover, a claimant has the duty to use reasonable care to observe his or her surroundings, to see what is there to be seen and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]; Guller v Consolidated Rail Corp., 242 AD2d 283, 284 [2d Dept 1997]; Bouloukos v Blank, 202 AD2d 539, 541 [2d Dept 1994]; Levitt v County of Suffolk, 166 AD2d 421, 423 [2d Dept 1990], lv dismissed 77 NY2d 834 [1991]).

The standard of reasonableness in slip and fall cases involving snow and ice also must be assessed "with an awareness of the realities of the problems caused by winter weather" meaning that "there must be evidence that the presence of the snow or ice created a dangerous condition which defendant knew or in the exercise of reasonable care should have known existed" in order to establish a breach of duty in such cases (Marcellus v Littauer Hosp. Assn., 145 AD2d 680, 681 [3d Dept 1988]; see McGowan v State of New York, 41 AD3d 670, 671[2d Dept 2007]; Murphy v 136 N. Blvd. Assoc., 304 AD2d 540, 540 [2d Dept 2003]).

To demonstrate constructive notice in such cases it must be established that "the icy [and/or snowy] condition was visible and apparent for a sufficient period of time to be discovered and remedied" by Defendant prior to the accident (Fung v Japan Airlines Co., Ltd., 51 AD3d 861, 862 [2d Dept 2008], lv denied 11 NY3d 713 [2008]; see Bergen v Carlin, 297 AD2d 692, 693 [2d Dept 2002]; Boyko v Limowski, 223 AD2d 962, 964 [3d Dept 1996]; see also Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]). "There is no formula for determining liability on the basis of any ratio between the number of inches of snowfall and the time elapsed before the happening of the accident" (Yonki v City of New York, 276 App Div 407, 410 [1st Dept 1950], appeal dismissed 303 NY 852 [1952]). On the other hand,"a general awareness that snow and ice may accumulate or is present is insufficient to provide constructive notice of the injury-producing condition" (Cardinale v Watervliet Hous. Auth., 302 AD2d 666, supra at 667).

DISCUSSION Upon consideration of all the evidence, including a review of the exhibits and listening to the witnesses testify and observing their demeanor as they did so, the Court finds; first, that Defendant failed to establish, by a preponderance of the credible evidence, that Claimant was a special employee of the State and, thus, limited to the benefits available under the New York State Workers' Compensation Law; second, that Claimant met her burden, and established, by a preponderance of the credible evidence, that Defendant was negligent in connection with her fall at Pilgrim; and, third, that Claimant also must bear culpability for her accident, as more fully discussed below.

As a preliminary matter, while each of the witnesses testified sincerely, the contradictory testimony offered by Sergeant Accinni and Safety and Security Officer DeCandia undermines the Court's confidence in the accuracy of their recollections and the Court is unable to credit them.

With respect to Defendant's affirmative defense, the Court notes that it permitted the State to serve and file an Amended Answer (see Bergman v State of New York, Ct Cl, Claim No. 111032, Motion No. M-74877, July 11, 2008, McCarthy, J. [UID No. 2008-040-043]). The State moved to do so without also requesting a stay of the Claim. Thus, this Court determined that the Claim would proceed in the normal course, with the availability of the Workers' Compensation Law defense to be resolved as part of the trial of the Claim (id.; see Shine v Duncan Petroleum Transp., 60 NY2d 22, 27* [1983]; Murray v City of New York, 43 NY2d 400 [1977]; PJI 2:215[I][C]).

To the extent the State now has argued, for the first time, that the Claim should be dismissed so that the Workers' Compensation Board can determine Claimant's employment status and eligibility for workers' compensation benefits (Post-Trial Memorandum of Defendant's Counsel, unnumbered pages 4-5), the Court determines that the State waived the issue (see Shine v Duncan Petroleum Transp., 60 NY2d 22, supra at 27*; Murray v City of New York, 43 NY2d 400, supra at 407; Bubnell v Holmes Ambulance Serv. Corp., 168 AD2d 408 [2d Dept 1990]).

Turning to the merits of the affirmative defense, the Court finds that the State "failed to adequately show how it directed the manner, details, and ultimate result of [Claimant's] work" (Soto v Akam Assoc., Inc., 61 AD3d 665, 666 [2d Dept 2009]). Mount Sinai paid Claimant. It appears from the record that workers' compensation benefits were available both from Mount Sinai and Pilgrim, though Claimant received benefits under Mount Sinai's insurance. Mount Sinai and Pilgrim each provided training and equipment to Ms. Bergman.

As noted above, however, the "key to the determination is 'who controls and directs the manner, details and ultimate result of the employee's work' " (Ugijanin v 2 W. 45th St. Joint Venture, 43 AD3d 911, 913 [2d Dept 2007], quoting Thompson v Grumman Aerospace Corp., 78 NY2d 553, supra at 558; Alvarez v Cunningham Assoc., L.P., 21 AD3d 517, 518 [2d Dept 2005], quoting Thompson v Grumman Aerospace Corp., supra). While it is clear that Dr. Friedman was Claimant's supervisor, he did so in a dual capacity. On the one hand, as a member of the Mount Sinai faculty, he supervised her work as a Mount Sinai research coordinator. On the other hand, as Pilgrim's Science Director, he oversaw her activities as a Pilgrim volunteer. The record fails to establish, however, in which supervisory capacity Dr. Friedman was acting from time to time. In that regard, it seems to the Court that the one evaluation contained in Exhibit D is insufficient to support a conclusion that the State controlled the overall manner and details of Claimant's work. Likewise, there is no evidence that Mount Sinai ceded to Defendant the right to hire and discharge this worker, or that her work was not, at all relevant times, in furtherance of the research/project goals of Mount Sinai's Department of Psychiatry, even if it also provided important and valuable benefits to Defendant and its patients at Pilgrim.

Thus, the record fails to demonstrate that Mount Sinai, as general employer, surrendered direction and control over Claimant's work, and that the State, as special employer, assumed control over her duties. To the contrary, Mount Sinai appears to have "maintained a continuing interest in [Claimant's] day-to-day activities" (Bounds v State of New York, 15 Misc 3d 1116[A] [Ct Cl 2007]). It is settled that "absent conclusive proof of surrender of control by the general employer, the presumption is that the general employment continues" (Stone v Bigley Bros., 309 NY 132, 140 [1955]).

That being the case, the Court next considers the State's duty to maintain the sidewalk in reasonably safe condition and concludes that Defendant breached that duty. In doing so, the Court credits Claimant's testimony that most of the sidewalk was covered by sheets or patches of snow and ice, and did not appear to have been cleared, shoveled, salted, and/or sanded. As noted above, the Court cannot credit the contradictory testimony provided by the two officers. In particular, the Court rejects Safety and Security Officer DeCandia's recollection that it was sunny, as well as his speculative testimony that snow/ice melted and then froze again. Likewise, the Court does not credit his statement that Claimant slipped on a single patch of black ice on the sidewalk, which the officer, nevertheless, was able to see at a distance of 30 feet.

By contrast, the Court credits Claimant's testimony concerning the poor condition of the sidewalk, and, thus, concludes that a dangerous condition existed on the sidewalk that was well in excess of a simple failure by the State to remove every bit of snow and ice. "While it would [have been] unreasonable to expect that the ice and hard-packed snow would have been completely eradicated, an indication of some attention was warranted" on a sidewalk leading to one of the main buildings on the Pilgrim campus (Delveccio v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006]). It is not clear that the sidewalk ever was plowed by Maintenance, but even if it was, Mr. Ryan knew that the skid loaders could leave snow and/or ice patches behind them. The Court concludes that the next step in Pilgrim's snow removal plan did not occur; the sidewalk was not shoveled, salted and/or sanded. In this instance, Maintenance and Housekeeping did not work in conjunction to keep the path in a reasonably safe condition. Moreover, Defendant does not contest the Claimant fell on the sidewalk, or that a snowy/icy condition was the substantial factor in the events that resulted in her injury (see Ex. 1).

In order to prove that Defendant is liable to Ms. Bergman, however, it is Claimant's burden also to prove that the State had notice that a dangerous condition existed. There is no evidence that Defendant either created or had actual notice of the snowy/icy condition upon which Claimant slipped. Thus, the question of liability turns on whether Defendant had constructive notice.

The Court finds that the dangerous condition was visible and apparent on the sidewalk and had existed for a sufficient length of time before the accident that Defendant should have discovered it in the exercise of reasonable care, and remedied it within a reasonable time (see Murphy v 136 N. Blvd. Assoc., 304 AD2d 540, supra at 540). Inasmuch as the Maintenance Department worked overtime on snow removal during December 26-27, 2004, the Court concludes that Defendant had constructive notice that a dangerous condition existed (see Delveccio v State of New York, 14 Misc 3d 1230[A], supra). The weather data indicated that the storm ended early on the morning of December 27, 2004. Thus, the State had more than a general awareness that snow and ice might have accumulated. The Court further determines that the State should have known, in the exercise of reasonable care, that a sidewalk near a main building on the Pilgrim campus was left unshovelled, unsalted, and unsanded nearly two business days later, when Claimant fell at 4:30 p.m. on December 28, 2004.

Thus, the Court concludes that the State was negligent, having breached a duty of care it owed Claimant with respect to a dangerous condition on the sidewalk of which it had constructive notice.

Finally, the Court must consider whether any culpable conduct by Claimant must diminish her recovery in the proportion to which she contributed to her injury. Claimant was obliged to see what there was to be seen and try to avoid accidents.

In this instance, Claimant was sufficiently aware of the poor conditions that she drove the short distance from her office to Building 102. She noted that few other vehicles had ventured forth on account of the weather so that she was able to park close to Building 102. She was familiar with the sidewalk she attempted to traverse. She set forth wearing sneakers, inappropriate footwear given the condition of the parking lot and sidewalk, which she knew was in an icy and snowy condition. She did all of this in connection with an elective, personal trip that was not required that day and which she continued to pursue even after being outraged by the poor conditions (see Delveccio v State of New York, 14 Misc 3d 1230[A], supra). Therefore, the Court finds that Claimant also was negligent and must bear substantial responsibility for her own culpable conduct in her injury. Accordingly, the Court apportions 60% of the liability for this accident to Claimant.


By a preponderance of the credible evidence that was presented, the Court finds that Defendant failed to establish its affirmative defense, that the State is 40% responsible for its failure to address a dangerous condition of which it had notice and that Claimant is 60% responsible because of her decision to walk on a snowy, icy sidewalk wearing only sneakers on her feet. All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.

The Chief Clerk is directed to enter interlocutory judgment accordingly. Instructions concerning the creation of a discovery schedule and trial date on damages will be provided under separate cover.

December 15, 2009

Albany, New York


Judge of the Court of Claims

1. The Court notes that the photographs contained in each of the exhibits denominated "Exhibit E-" were introduced into evidence without objection and depict Building 102, the parking lot, and sidewalk relevant to this Claim, but do not show snow and/or ice, or any other conditions that existed on December 28, 2004.