New York State Court of Claims

New York State Court of Claims
FILECCO v. THE STATE OF NEW YORK, # 2010-030-027, Claim No. 115131


Claim dismissed after trial. Claimant did not establish that wet loading dock was dangerous, and even if dangerous, did not establish that State had notice and failed to correct.

Case information

UID: 2010-030-027
Claimant short name: FILECCO
Footnote (claimant name) :
Footnote (defendant name) : The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 115131
Motion number(s):
Cross-motion number(s):
Claimant's attorney: GREGORY W. BAGEN, ESQ.
Third-party defendant's attorney:
Signature date: September 7, 2010
City: White Plains
Official citation:
Appellate results:
See also (multicaptioned case)


Michael L. Filecco alleges that defendant's agents at Purchase College allowed a dangerous wet floor condition to exist on a loading dock area on February 1, 2008. As a result, when he delivered paint to the school that day he slipped and fell and suffered injury. Trial of the liability phase of this matter was held on May 26, 2010. This decision relates only to the issue of liability.

Claimant testified that he had called ahead that morning to find out where he should bring a delivery of paint. It was his last delivery of the day. Purchase personnel directed him to loading dock C at the school, an area depicted in photographs. [Exhibit 2]. When he arrived at loading dock C, he was met by Judi Guralnick, the "prop shop"(2) supervisor, who was also responsible for the paint shop maintenance generally at the Purchase Performing Arts Center. Mr. Filecco parked his truck as she directed, in front of the loading dock, opened up the back of his truck, and put five cases of paint, each weighing approximately 50 lbs., on a hand truck. He took this first load to an area inside without incident, placing the paint where directed by Ms. Guralnick, and returning to the truck for a second (and final) load. Mr. Filecco indicated that he was not warned about any wet or other condition on the surfaces.

When he walked backwards into the inside loading dock area with the second load on his hand cart, "probably. . . about 3 to 4 feet," his right foot slipped, and he fell. When he fell, his hands felt the ground around him and he noticed for the first time that it was wet. He got up, said that he "felt alright", completed the delivery and left.

Mr. Filecco recalled that it had been raining heavily that day and that as he loaded his hand truck, it was in the rain. Despite the fact that this was his last delivery of the day, he said he was not in a hurry and "took [his] time." He did not, however, look at the floor as he walked, and did not observe any wetness to the floor until he fell. After falling, he said he saw "little puddles of water on the floor" just inside the loading dock floor, slightly beyond the area where the metal lip or metal bands on the floor would meet the loading dock door if they were closed. [See Exhibit 2]. As described by his testimony with the assistance of a photograph, Mr. Filecco fell in the area on the inside of the loading dock on a surface that appears to be painted concrete. [Id.]. There is a three- to four-inch step, up from the outer concrete area to the inside floor. This inside concrete area is separated from the outer concrete area by metal bands.

Notably, at his deposition, taken on January 13, 2009, he could not remember what he slipped on, and when asked specifically whether he knew of present knowledge what caused him to slip, whether it was "water or ice or something else", he responded "I just don't know." He also said then that he did not feel anything with his hand on the floor after landing. After some off-the-record colloquy during the deposition, he apparently did remember later that he slipped on water, and explained at trial that there had been a family emergency the day before the deposition thus his "mind was not with [him]." At the deposition he was asked similar questions after a break, and said that the ground was "all water, slippery, there was water," that when he fell and felt the ground with his hand he could feel it was wet, and when asked to quantify "how much water was there" he said "from the rain that day I'd say there was a little puddle."

Judi Guralnick confirmed that she had told Mr. Filecco to bring the paint delivery to loading dock C, and that she met him there. She went to the dock, opened the doors, and watched claimant get the first load of paint out of the truck, put it on a hand truck, and bring it inside. From what she remembered of the weather conditions, there was snow on the ground areas, so everything was "a little wet, but it was not puddled or anything, just a little damp." She said that she told claimant to "watch out" because she observed that it was slightly wet at the entryway. She also saw him pull the hand truck in the second time, going backwards as he pulled it up the step, up and inside the loading area a few feet. She observed that it seemed as if his "knee went out" and he tripped and buckled and fell down.

The area that was damp was "right at the entryway, by the metal stripping in the front." She marked the damp area on Exhibit 2. She said that by damp she meant "not totally dry, no pools of water. You would be able to see wetness - it was less than dry - but not 'wet wet'." There were no mats available there to her knowledge. From her observation, the area did not need special attention, which was why she "did not do anything particularly about it" other than to briefly warn Mr. Filecco to "watch out."

Ms. Guralnick confirmed that to her knowledge there had been no prior accidents at that location either that day or at any other time.

No other witnesses testified and no other evidence was submitted.

Although the State has a duty as a property owner or to prevent foreseeable risks of harm, it is not the insurer of public safety. Its duty is to exercise "reasonable care under the circumstances" [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. For premises liability, assuming that the State did not create the dangerous condition, a claimant must show that the defendant had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transp. Auth., 99 AD2d 246, 249 (1st Dept 1984), affd 64 NY2d 670 (1984). With respect to constructive notice, any "defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit [a defendant] to discover and remedy it . . . (citation omitted)." Gordon v American Museum of Natural History, supra at 837; but cf. Weisenthal v Pickman, 153 AD2d 849 (2d Dept 1989).(3) Additionally, constructive notice may be established by showing a recurring dangerous condition. "[W]here the required notice is alleged to be of a constructive nature based upon an alleged recurring condition, a claimant is required to 'show by specific factual references that the defendant had knowledge of the allegedly recurring condition' (Carlos v New Rochelle Mun. Hous. Auth., 262 AD2d 515, 516; accord Stone v Long Is. Jewish Med. Ctr., 302 AD2d 376, 377) identifying how long the condition existed as well as how and to whom the notice of the condition was given (see id.)." Campbell v State of New York, UID # 2004-029-374, Claim No. 100831 (Mignano, J., April 13, 2004).

The State has a duty to "act as a reasonable [person] in maintaining his 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); Preston v State of New York, 59 NY2d 997, 998 (1983). Significantly, "[n]egligence cannot be presumed from the mere happening of an accident. It is incumbent upon the part of claimant to show affirmatively by competent evidence that the injury complained of was caused by reason of some breach of duty by the State. Negligence must be proven . . . (citations omitted)." Mochen v State of New York, 57 AD2d 719, 720 (4th Dept 1977); see Lewis v Metropolitan Transp. Auth., supra at 251.

More specifically, "to impose liability for an injury proximately caused by a dangerous condition created by weather tracked into a building, a defendant must either have created the dangerous condition, or had actual or constructive notice of the condition and a reasonable time to undertake remedial actions." Friedman v Gannett Satellite Info. Network, 302 AD2d 491 (2d Dept 2003)(4) ; cf. Yearwood v Cushman & Wakefield, 294 AD2d 568 (2d Dept 2002);(5) see also Bernhard v Bank of Montreal, 41 AD3d 180 (1st Dept 2007).(6)

It is the claimant's burden to prove his case by a preponderance of the credible evidence. As the trier of fact and law, charged with assessing the credibility of the witnesses and evaluating the evidence, and upon consideration of all the evidence, including listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence established that defendant is not responsible for the claimant's unfortunate fall and resultant injury.

As an initial matter, claimant has not established what made him fall, but has speculated that a wet condition caused him to do so. His credibility on the degree of wetness is impaired by the fact that during his deposition he only "recalled" copious amounts of water after an off-the-record break. Even then, during his deposition he mentioned only a "little puddle." Indeed, during the trial it was clear from claimant's own testimony that he was not looking where he was going, and successfully negotiated the same area moments earlier without incident. The only other witness to the accident observed that suddenly his knee appeared to "go out" which could have resulted from any number of things.

Moreover, the court is not convinced that any wetness condition was "dangerous." Simply because the loading dock area was wet, does not make the wet condition a dangerous one. As noted, claimant's observations of the amount of water present are not particularly credited. In this regard, it is noted that Ms. Guralnick opened up the loading dock doors for claimant when he arrived with his delivery, meaning that water was not constantly driving into the internal portion of the dock. Additionally, Mr. Filecco loaded his hand truck in the rain, and likely tracked in some amount of water after the first trip.

The wet condition alleged herein is too trivial to be actionable. Whether a particular condition is so dangerous "as to create liability 'depends on the peculiar facts and circumstances of each case' " Trincere v County of Suffolk, 90 NY2d 976, 977 (1997). The alleged condition was minor, open and obvious. Even if there was more water than the "dampness" noted by Ms. Guralnick, the condition was an open and obvious one readily observed by the reasonable use of one's senses, and not inherently dangerous. See Persing v City of New York, 300 AD2d 641, 642 (2d Dept 2002). While claimant had not made a delivery to loading dock C before, he was certainly familiar with the nature of loading docks and the configurations and hazards they might present, given his job as someone who delivered paint. He chose to negotiate the area backwards, and did not notice any water until after his fall, when he speculated that it was water that caused him to fall. Again, and this assumes that there was some water in the area, had claimant been employing the reasonable use of his senses, he would have seen something. Other than his speculation as to the cause, it is not established what caused him to fall.

Finally, if the wet loading dock constituted a dangerous condition, there was nonetheless no constructive notice of same, or actual notice in sufficient time to remedy the condition with appropriate safeguards. There had been no prior accidents at that location. There was no proof that this was a recurring condition about which the State was aware and should have taken reasonable precautions to prevent. The loading dock doors had only been opened just prior to Mr. Filecco's arrival. When Ms. Guralnick noticed a slight wetness along the metal strip, (although her assessment of the condition was that there was no need to do anything in particular about it, because it was so minor), she nonetheless verbally warned Mr. Filecco to proceed carefully. Claimant simply did not take appropriate precautions for his own safety if, as he said, there had been rain throughout the day, and a "little puddle" was present on the loading dock.

While it is unfortunate that Mr. Filecco fell and injured himself, and the Court is sympathetic to the claimant, the mere fact of such accident cannot alone establish the defendant's liability.

Based on the foregoing, Claim Number 115131 is in all respects dismissed. All trial motions not otherwise disposed of or withdrawn are hereby denied.

Let Judgment be entered accordingly.

September 7, 2010

White Plains, New York


Judge of the Court of Claims

2. Quotations are to trial notes or audio recordings unless otherwise indicated.

3. In Weisenthal v Pickman, supra, the Second Department drew a distinction between the outdoor setting of Gordon v American Museum of Natural History, supra, involving an alleged slip and fall on a piece of paper on an outside stairwell, and the garbage strewn about on the indoor stairwell at issue in Weisenthal v Pickman, supra at 851,saying the latter "could have been swept clean effectively on a daily basis [since] the evidence tends to show that the debris piled up in the defendants' stairwell over the course of days, rather than over the course of minutes or seconds, thus making it a matter of permissible inference, rather than a matter of 'pure speculation', to conclude that if the defendants had taken reasonable precautions in maintaining their premises, the plaintiff's accident would have been prevented."

4. Triable issues of fact as to whether defendant had constructive notice of the dangerous accumulation of snow, ice and moisture at its entrance vestibule, when it had been snowing and sleeting for at least two hours prior to plaintiff's slip and fall, and defendant failed to place an additional mat in the vestibule in accordance with its usual practice.

5. No triable issue of fact as to whether defendant created or had actual or constructive notice of the wet condition on the lobby floor of its building, when it had been raining heavily, and runners had been placed across the entire length of the marble lobby floor. Plaintiff slipped as she walked toward an elevator after she left the runner.

"[Defendant] was not obligated to provide a constant remedy to the problem of water being tracked into a building in rainy weather." Yearwood v Cushman & Wakefield, supra at 568.

6. Defendant did not have sufficient opportunity to remediate hazard from wet floor during heavy rainstorm. People with umbrellas had entered lobby area minutes before plaintiff, area of accident had been mopped seven minutes earlier; no triable issue of fact as to whether floor matting in lobby inadequate.