New York State Court of Claims

New York State Court of Claims

SEPULVEDA v. THE STATE OF NEW YORK, #2009-041-502, Claim No. 111586, Motion No. M-75908


Claim alleging that ice on exterior steps caused claimant to fall and suffer injury is dismissed after trial where proof failed to show either that condition had existed for a sufficient period of time prior to claimant’s fall to permit defendant to discover and remedy it or that defendant created condition.

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:
Defendant’s attorney:
New York State Attorney GeneralBy: Michael Rizzo, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 15, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


On February 20, 2004, while exiting the mess hall of Clinton Correctional Facility (CCF), A Block, at approximately 8:00 a.m., Arcelio Sepulveda, Jr. (claimant) slipped and fell on stairs.
Claimant testified the area had been shoveled, that prior to falling he did not see what had caused him to fall, and that after having fallen he observed ice on the stairs. Upon cross-examination, claimant indicated that ice did not cover all of the steps and that he did not know how long the ice had been there.
Johnnie Pickett, also leaving the CCF mess hall on the morning of February 20, 2004, testified that while following the claimant from a distance of six or seven feet he observed the claimant slip and fall on the steps. He further testified the stairs had been cleaned, but that there were spots (“a patch”) of ice on the stairs. Mr. Pickett had not been outside that day prior to observing claimant fall.
Correction Officer Steven Nye, employed on February 20, 2004 at CCF, testified on behalf of defendant. He was “in charge” of A Block at that time. He indicated that several hundred people would utilize the steps in question between 7:00 a.m. and 8:20 a.m. each day, that he was unaware of any falls on the steps other than claimant’s on February 20, 2004. He further testified that a correction officer in charge of maintenance would oversee inmate porters working to remove snow and ice beginning at 5:30 a.m., that he received no complaints concerning icy conditions on the steps prior to claimant’s fall, and that he typically reported to work each day at 6:30 a.m. Neither party introduced any exhibits.
At the conclusion of trial, defendant moved to dismiss the claim for lack of proof establishing that defendant had notice, actual or constructive, of the condition of which claimant complains. The Court reserved decision. The Court now grants defendant’s motion.
In DiGrazia v Lemmon (28 AD3d 926, 927 [3d Dept 2006], lv denied 7 NY3d 706 [2006]), the court explained that in seeking recovery allegedly due to an icy condition, a claimant is:
“[R]equired to present evidence that ice existed, and that it was visible and apparent and had existed for a sufficient period of time prior to [his] fall to permit defendant to discover and remedy it.” Further, defendant’s “general awareness that icy conditions might have existed is insufficient to establish constructive notice of the specific condition that resulted in [claimant’s] injuries.”
It is also well-settled that “[a]n owner of real property may be liable for a hazardous ice condition existing on its property as a result of a storm or temperature fluctuation only upon a showing that it had actual or constructive notice of the hazardous condition, and that a sufficient period of time elapsed since the cessation of the storm or temperature fluctuation to remedy the condition” (Ronconi v Denzel Assoc., 20 AD3d 559-560 [2d Dept 2005]).
In Simmons v Metropolitan Life Ins. Co. (84 NY2d 972, 973-974 [1994]), the Court of Appeals affirmed a First Department Appellate Division decision which had reversed a trial level judgment, based upon a jury verdict, after a trial involving a slip and fall on ice:
“Although plaintiffs presented evidence that icy patches had been noticed weeks prior to the accident, no testimony was introduced that defendant was notified of these icy conditions. Additionally, no evidence was introduced as to the origin of the patch of ice on which plaintiff allegedly slipped and whether defendant had sufficient time to remedy the dangerous condition. The testimony that it had snowed a week prior to the accident was insufficient to establish notice because no evidence was introduced that the ice upon which plaintiff allegedly fell was a result of that particular snow accumulation. In light of the record evidence, the Appellate Division properly held that the jury's conclusion that defendant had constructive notice was irrational and based on pure speculation.”
Richer v State of New York (31 AD3d 943, 944 [3d Dept 2006]), illustrates these points:
“[C]laimant's proof, consisting of her testimony only, did not establish to any extent that the icy condition had existed for a sufficient length of time to permit defendant to become aware of and remedy the situation (see DiGrazia v Lemmon, 28 AD3d 926, 927 [2006]; Boucher v Watervliet Shores Assoc., 24 AD3d 855, 857 [2005]; Polgar v Syracuse Univ., 255 AD2d 780, 780 [1998]). Notably, defendant's "[g]eneral awareness that icy conditions may exist is insufficient to establish constructive notice" (Boucher v Watervliet Shores Assoc., supra at 857; see Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]).

Nor did claimant establish that defendant failed to exercise reasonable care in clearing the driveway of snow and ice by affirmatively creating or exacerbating a dangerous condition (see Gentile v Rotterdam Sq., 226 AD2d 973, 974 [1996]; see also Glick v City of New York, 139 AD2d 402, 403 [1988]; compare Rector v City of New York, 259 AD2d 319, 321 [1999]). Claimant offered no meteorological or other proof that the icy condition predated the snowfall which had occurred prior to claimant's fall, and her implication that defendant reexposed the ice by plowing the driveway is, thus, simple speculation. Under these circumstances, it cannot be said that defendant failed to exercise reasonable care in removing snow and ice from the area in question.”
There was no evidence at trial that the defendant created the ice upon which claimant slipped and fell on February 20, 2004. Moreover, there was no testimony, proof or evidence at all about the length of time a patch or patches of ice existed on the A Block stairs on the morning of February 20, 2004. There were no complaints of icy conditions or reports of falls other than claimant’s on that morning. No proof established, indeed, no proof was offered, that defendant had either actual or constructive notice of the condition about which claimant complains. This is a fatal defect to the claim.
The defendant’s motion to dismiss having been granted, the claim is dismissed.
Claimant’s motion, M-75908, seeking a subpoena to compel the testimony of Johnnie Pickett, returnable December 5, 2008, the date of trial, was rendered moot by the appearance and testimony of Mr. Pickett at trial. It is therefore denied.
All motions not previously decided are hereby denied.
Let judgment be entered accordingly.

January 15, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered on M-75908:

  1. Notice of Motion filed December 1, 2008, with annexed affidavit of Arcelio Sepulveda, Jr., sworn to November 24, 2008.