|Claimant short name:||GATHERS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Vanessa Gathers, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Janet Polstein, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||September 20, 2010|
|See also (multicaptioned case)|
This is the decision following the trial on liability of the claim of Vanessa Gathers, in which she alleges that on February 21, 2002, she was injured when she slipped and fell in the mess hall at Bayview Correctional Facility.
Ms. Gathers described what happened as follows:
[T]he incident occurred . . . in the facility mess hall . . . it was eleven thirty . . . that was the time that we [went] to lunch . . . At that time I had my tray and I proceeded to go down the stairs. This was like five steps or so and I slipped and the tray went and I fell.
Claimant testified that she was "not sure" what caused her to fall, although she speculated that it could have been the stair treads, adding that, "I don't know whether there was anything on the steps because . . . I wasn't looking down at that time. I just know that I had my plate, I was walking down the stairs and that was that."
On Gathers' cross-examination, the following exchange occurred:
Q. [Y]ou stated on your direct examination that you don't know what caused you to fall, is that correct?
Q. You don't know if it was food, debris or something else?
A. That's correct, or the treading . . .
Claimant called no other witnesses who could shed light on how her accident occurred, and she agreed that she had never had any trouble with the stairs prior to her accident.
With regard to the stair treads, the parties are in agreement that they were at some point replaced. Defendant maintains that they were replaced prior to claimant's accident, citing a work order (defendant's exhibit A), which defendant contends shows that the work was completed on January 16, 2002. Claimant, on the other hand, maintains that the treads were replaced both before and after her accident, although on cross-examination, she conceded that she had no personal knowledge of when the treads were replaced.* * *
To prevail, claimant must prove that there was a dangerous condition or defect which defendant either created or of which it had actual or constructive notice, and that such condition or defect proximately caused her accident. Gordon v American Museum of Natural History, 67 NY2d 836 (1986).
As set forth above, claimant was uncertain as to what caused her to fall. Even if she was certain that it was the treads, she failed to demonstrate the mechanism of her fall or how the treads constituted a dangerous condition. Gathers herself identified no safety concerns with regard to the treads, testifying instead that they were replaced because they had been splattered with paint drippings. In that regard, claimant's exhibit 1 contains the Superintendent's Response to the grievance that claimant filed after her accident, which states that:
The stairwell where the grievant claims to have fallen was constructed in the fall of 2000. The stairwell is equipped with sturdy handrails and did not require repair. The stair treads were replaced because a new ceiling was installed and the area was recently painted. During the painting of the Messhall the "black" stair treads became coated with lilac and white paint that could not be removed.
In order to maintain . . . decor, the stair treads were replaced.
To my knowledge we have no complaints of safety issues regarding this stairwell.* * *
In short, claimant Vanessa Gathers has failed to demonstrate by a fair preponderance of the credible evidence that her accident was caused by a dangerous condition which the defendant either created or of which it had notice. Accordingly, claim no. 105888 is dismissed and defendant's motion for summary judgment (no. M-77754) which had been held in abeyance pending trial, is denied as moot.
LET JUDGMENT BE ENTERED ACCORDINGLY.
September 20, 2010
New York, New York
Alan C. Marin
Judge of the Court of Claims