New York State Court of Claims

New York State Court of Claims

ESTEP v. THE STATE OF NEW YORK, #2009-041-514, Claim No. 111106


Claim alleging that defendant's negligence caused claimant’s bed frame to collapse is dismissed after trial where claimant failed to prove defendant had notice of allegedly dangerous condition; cause of action for medical malpractice dismissed for lack of expert testimony.

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 General
By: Michele Walls, Esq., Assistant Attorney General Thomas Monjeau, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


This claim arises from an accident on October 25, 2004, related to a fall claimant suffered at Clinton Correctional Facility (Clinton). Claimant, while sitting on his bed, fell to the floor through the bed, as the metal frame supporting his mattress failed. This is not disputed. Claimant fell approximately twenty-four inches to the floor, and alleges injuries to his head, neck, left arm and back. Claimant seeks recovery under theories of negligence and medical malpractice in the treatment of the injuries sustained in the fall.

The second theory of recovery will be addressed first. Claimant, the only witness at trial, testified to having had an x-ray performed on his left elbow 20 months after the accident, a procedure which revealed a bone spur on the elbow. Claimant expressed displeasure with the time delay between his initial attempts to have an x-ray performed, not long after the accident, and the date it was actually taken, and makes allegations of having received substandard medical care.

Conclusory allegations of medical malpractice, unsupported by competent evidence establishing its essential elements, are insufficient to state a prima facie case. Through a medical expert, it must be shown that defendant deviated from the standard for good and acceptable care in the locality where the treatment occurred and that the deviation was the proximate cause of the injury (Torns v Samaritan Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d 778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept 2000]).

“Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case” (Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]; see Tatta v State of New York, 19 AD3d 817 [3d Dept 2005], lv denied 5 NY3d 712 [2005]; Trottie v State of New York, 39 AD3d 1094 [3d Dept 2007]).

The fact that claimant proceeded pro se does not excuse the need for expert medical opinion to demonstrate a deviation from the applicable standard of care (Duffen v State of New York, 245 AD2d 653, 653-654 [3d Dept 1997], lv denied 91 NY2d 810 [1998]).

Claimant’s allegations of medical malpractice fail. No expert medical proof was offered to prove that claimant failed to receive adequate medical care, that the lack of care or that the care actually received deviated from the level of care defendant owed claimant, or that the lack of care or that the care actually received was the proximate cause of the injuries claimant claims to have sustained. Accordingly, any claim founded in medical malpractice must fail.

The second cause of action sounds in premises liability. The State’s liability for a dangerous condition on its premises must be founded upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).

Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. “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 defendant’s employees to discover and remedy it” (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).

Trial of this matter was conducted on May 1, 2009 and August 25, 2009. The second trial date was held in order to enable claimant to make an offer of proof to demonstrate alleged negligence of defendant in providing defective beds to inmates at Clinton, generally, and to further demonstrate defendant’s constructive, if not actual, notice of the defective bed problem at Clinton, specifically. As the claimant expressed an interest on May 1 in making an offer of proof on these issues through the use of written statements of two fellow inmates, but did not do so on that date, the trial was reconvened on August 25 to enable claimant to make such an offer of proof if he so chose, subject to defendant’s objection, if any, to having the statements introduced into evidence.

Indeed, on August 25, 2009, claimant made the offer of proof previously described, to which defendant objected. The statements, collectively marked as Court Exhibit 1, are sworn statements made before a notary by fellow inmates and detail their experiences at Clinton with broken beds. Defendant objected to their introduction as hearsay. In response to defendant’s objection, claimant alluded to a letter dated August 14, 2009 that he had sent to the Clinton Superintendent, copied to the Court and to the attorney for the defendant. The letter, in its entirety, reads:

“This is for subpoenas for Correction Officers C.O. Depo, C.O. Mike Myer’s and C.O. Jim Bassey to appear in court on Tuesday, August 25, 2009 at Clinton Correctional Facility, for Howard Estep 98A1222 Claim No. 111106 at Clinton Main Correctional Facility on Tuesday, August 25, 2009 in the court of Honorable Frank P. Milano.”

Initially, the letter to Superintendent Artus is neither a subpoena upon him, nor a subpoena upon the three correction officers named. Next, to the extent it attempts to compel the appearance of these three individuals, ostensibly to provide testimony, it does not address the statements of the inmates which were offered for introduction into evidence. Finally, claimant’s letter of August 14, 2009 does not address the legal objection of hearsay made by defendant to proffered Court Exhibit 1.

The Court reserved upon defendant’s objection to Court Exhibit 1. Defendant’s objection is now sustained, since the three out-of-court statements are inadmissible hearsay. Court Exhibit 1 is not received in evidence.

In support of his claim founded in negligence, claimant referred to the fact that a number of other beds at Clinton had broken. No testimony or evidence was received as to when other beds broke, the number that had previously broken or, most importantly, the nature of the defects, if any, which caused the other beds to break. Claimant’s reference to other broken beds assumes that they had not been broken either intentionally or accidentally, but were broken due to like defects, but no proof supporting that assumption was produced.

Further, no testimony or evidence related to the defendant’s knowledge, constructive or actual, concerning the bed from which claimant fell, and whether claimant’s bed was in fact defective, was provided.

The claimant has failed to prove by a preponderance of the credible evidence that defendant knew, or should have reasonably known, of the condition of claimant’s bed and further, whether claimant’s bed was in fact defective.

At the conclusion of claimant’s case, defendant moved to dismiss the claim. The Court, reserving upon defendant’s motion at trial, now grants defendant’s motion.

For all of the foregoing reasons, Claim No. 111106 is dismissed.

All motions not previously decided are hereby denied.

Let judgment be entered accordingly.

October 30, 2009
Albany, New York

Judge of the Court of Claims