New York State Court of Claims

New York State Court of Claims
ZULU v. THE STATE OF NEW YORK, # 2011-037-504, Claim No. 110168, Motion No. M-79609


Case information

UID: 2011-037-504
Claimant short name: ZULU
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 110168
Motion number(s): M-79609
Cross-motion number(s):
Claimant's attorney: Chaka Mosi Kamau Zulu, Pro Se
Defendant's attorney: Hon. Eric T. Schneiderman
New York State Attorney General
By: Richard B. Friedfertig
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 4, 2011
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant seeks damages for personal injuries which allegedly occurred while he was in the custody of the New York State Department of Correctional Services (DOCS) at Groveland Correctional Facility (Groveland). Trial of this Claim was conducted by video conference on April 5, 2011, with Claimant appearing at Altona Correctional Facility in Altona, New York; Defendant appearing at Groveland in Sonyea, New York; and the Court sitting in Buffalo, New York. Claimant offered his own testimony and Defendant offered the testimony of Corrections Officer Jeffrey Harrison (CO Harrison) and Mike Cleesattle, plant superintendent at Wende Correctional Facility (Wende).

After the trial was scheduled, Claimant brought a motion to compel discovery, for an extension of time and a stay (M-79609). Since the motion was served upon Defendant on March 28, 2011, eight days before trial, the Court heard the motion immediately prior to the commencement of trial. The Court reserved decision on the motion and now denies it as moot based upon the following decision.(1)

Claimant alleged in his Claim and testified that on the morning of December 7, 2002 he was being transported from Groveland to the Regional Medical Unit (RMU) at Wende to be examined by a dermatologist when he slipped on a wobbly, slippery step while exiting the transport van and fell on an ice covered parking lot suffering injuries. Claimant submitted extensive medical records in support of his allegations that he suffered serious physical injuries which he alleges are permanent in nature.

CO Harrison, a DOCS employee for twenty-one years, testified that on December 7, 2002 he was the "trip officer" responsible for transporting inmates from Groveland and Wyoming Correctional Facility to the RMU at Wende. He stated that Claimant was one of eight inmates being transported that day and the weather was clear and cold with no precipitation. Upon arrival at Wende, CO Harrison assisted Claimant and the other inmates in exiting the vehicle which involved using a step adjacent to the van door to step down onto the parking lot. He recalled assisting Claimant out of the van and then turning back to help another inmate when he discovered that Claimant had fallen on the parking lot. Although Claimant insisted he was not hurt and did not need medical attention, CO Harrison escorted him to the facility medical unit for examination. An Inmate Injury Report form (Defendant's Exhibit D) completed by the attending nurse and signed by Claimant confirms the incident and the nurse notes "(right) knee not swollen, no bumps or bruising on head." The report states that the only treatment provided was Advil for headache. CO Harrison also noted that Claimant did not complain that the van step was wobbly or icy.

During his testimony Mike Cleesattle outlined the protocols established by DOCS for snow and ice removal which were in effect on December 7, 2002, when he was responsible for supervising that operation. Although the witness had no recollection of the weather conditions on the day of the accident, he indicated that if there had been a weather event requiring snow removal and/or surface treatment the process would have begun at 3:30 A.M., well in advance of Claimant's arrival at Wende.

Although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851 [1985]; Condon v State of New York, 193 AD2d 874 [1993]). 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 (see Miller v State of New York, 62 NY2d 506, 513 [1984]; Preston v State of New York, 59 NY2d 997, 998 [1983]). To establish the State's liability, Claimant must show the existence of a foreseeable dangerous condition; that the State created the condition or had either actual or constructive notice of the condition; that the State failed to remedy the condition within a reasonable time; that such condition was a proximate cause of Claimant's accident; and that Claimant sustained damages (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 [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 Museum of Natural History, supra at 837).

Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that the credible evidence failed to establish Claimant's burden of proof. There was no proof, other than Claimant's own self-serving testimony, submitted in support of his contention that there was a wobbly, icy step on the van or ice on the surface of the parking lot. No other witnesses testified to that effect. Furthermore, there was no showing that the State was aware of either condition and failed to cure them. It is only those foreseeable dangerous conditions which are not remedied within a reasonable time which may establish liability on the part of the State (Gordon v Museum of Natural History, supra), assuming that proximate cause and actual damages are proven as well. In claims involving winter conditions, even a failure to remove all ice and snow, or the existence of ice patches, is not necessarily presumptive proof of negligence (Hobbs v State of New York, 55 AD2d 710 [1976]). Here, Claimant has not submitted convincing proof that there was ice on the van step or the parking lot, nor has he described with sufficient particularity exactly how and where his fall occurred.

Accordingly, Claimant has failed to establish by a preponderance of the credible evidence that the State should be held liable in negligence for failing to alleviate an allegedly dangerous condition which it created or of which it had constructive notice. Therefore, Defendant's motion to dismiss the Claim upon which decision was reserved at the time of trial is hereby granted and Claim Number 110168 is hereby dismissed in its entirety.


May 4, 2011

Buffalo, New York


Judge of the Court of Claims

The following papers were read and considered with respect to Claimant's motion (M-79609) to compel discovery, for an extension of time and a stay:

1. Notice of Motion and supporting affidavits of Claimant, Chaka Mosi Kamau Zulu,

sworn to March 16, 2011;

2. Affidavit in opposition by Assistant Attorney General Richard B. Friedfertig sworn

to April 4, 2011, with annexed exhibits A-E.

1. The Court notes that the motion would have been denied if it had not been rendered moot by this decision. This matter was scheduled for trial in 2008 and twice in 2010 and on each occasion Claimant sought an adjournment to conduct additional discovery. It is apparent from the documents submitted on the motion that the information sought by Claimant is overly burdensome and irrelevant to this proceeding. Furthermore, Claimant, an experienced pro se litigant, did not diligently pursue discovery during the six years the Claim was pending.