|Claimant short name:||ROGERS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||MAUREEN T. LICCIONE|
|Claimant's attorney:||LARON ROGERS, pro se|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
By: Dorothy M. Keogh, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 26, 2019|
|See also (multicaptioned case)|
This is a claim by an inmate proceeding pro se John Rogers ("Claimant" or "Rogers") alleging that he was injured while incarcerated at the Sing Sing Correctional facility ("Sing Sing") due to the defendant's ("Defendant" or "the State") negligent failure to maintain the premises. A trial was held on October 29, 2019 via video conference.
More specifically, Rogers alleged that on March 29, 2016 while he was seated in a college level class in room 201 on the second floor of the Sing Sing academic building, the light fixture above him fell, causing water which had accumulated in the fixture and the light fixture cover to hit him in the head, shoulder and arm. Rogers testified that he had never before observed a dangerous condition in the ceiling because the evening of the incident was his first class in room 201.
Claimant testified that after the incident he was taken to the Sing Sing medical facility and the medical records indicate that there was a small bump on the back of his neck. Two days later Rogers returned to the medical facility complaining of headaches and dizziness. Claimant alleged that since the date of the incident he continues to experience headaches, dizziness, blurred vision, nausea, vomiting, confusion, impaired concentration, slurred speech and an "overall loss of quality of life" (Claim ¶ 8).
Rogers asserted that Defendant had prior constructive notice of the dangerous condition because a logbook entry dated March 12, 2016 for the second floor of the academic building noted a leak from the third floor bathroom to the first floor. The third floor bathroom, according to Claimant, is directly above room 201. Claimant testified that he obtained the logbook page, labeled Claimant's Exhibit 1 for identification, by way of a FOIL (Freedom of Information Law, NY Public Officers Law Article 6) request. The correction officer's signature on the logbook page is not legible, but does contain the name "Sgt Gamble." The logbook page had entries from 0800 until what appears to read 3:15 p.m. The notation concerning the water leak was made at 0810.
Defendant did not deny that the incident occurred and its defense relied solely upon the documents admitted into evidence. Among those documents were Claimant's Sing Sing medical records and two affidavits of Sing Sing employees which indicated that they had searched for documents related to prior notice of the alleged dangerous condition and found none.
The first affidavit, sworn to on March 29, 2018, was that of Robert Hibbs, a maintenance supervisor at Sing Sing. He indicated that his search of the maintenance records revealed no work order "requesting repair of a water leak in the 201 classroom" from March 29, 2013 to March 29, 2016. The second affidavit was by correction officer Arthur Wolpinsky and sworn to on November 1, 2017. In his affidavit CO Wolpinsky indicates that he reviewed the "3rd floor log book entries from the Academic Building from December 29, 2015, to March 28, 2016" and was "not able to find any entries regarding broken pipes, leaks or flooding on the 3rd floor of the Academic Building."
Defendant objected to the admission of Exhibit 1 into evidence alleging that it was inadmissable hearsay which had not been authenticated. The Court reserved decision on the admissibility of Exhibit 1 until it was provided to chambers after the video trial concluded.
Upon cross examination by Rogers, CO Wolpinsky could not authenticate Exhibit 1. Presumably, since CO Wolpinsky searched third floor logbooks and the entry concerning the leak was in the second floor logbook, CO Wolpinsky never saw Exhibit 1. Similarly, since he only searched for work orders and did not inspect logbooks, it makes sense that Robert Hibbs did not discover Exhibit 1.
Hearsay is defined as an out-of-court statement offered to prove the truth of the matter asserted therein. However, a statement which is not offered for the truth of the facts asserted therein is not hearsay (People v Salko, 47 NY2d 230 ). It is well settled that out-of-court statements by unknown declarants are admissible to establish notice of a dangerous condition, even where the accuracy of the statements is not established (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2d Dept 2003]); Stern v Waldbaum, Inc., 234 AD2d 534 [2d Dept 1996]). Furthermore, documents obtained pursuant to FOIL have been held to fall within the common law hearsay exception and are admissible for purposes of establishing notice without witness authentication (Ortiz-Somarriba v Somers, 2014 WL 8623146 [Sup Ct, NY County 2014] Stone v City of New York, 16 Misc3d 1134(A) [Sup Ct, New York County 2007]). In accordance with these precedents, the State's objection is overruled and Exhibit 1 is in evidence and is considered solely on the issue of notice.
Defendant must maintain its property, including the prisons that it owns and operates, "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 ; see also Preston v State of New York, 59 NY2d 997, 998 ). To demonstrate that the State has failed to meet this duty, and to hold it liable in damages for such failure, a claimant must show that Defendant either created the risk that caused him or her injury, or had actual or constructive notice thereof (see Di Sanza v City of New York, 11 NY3d 766 ; Piacquadio v Recine Realty Corp., 84 NY2d 967 ), and had sufficient time to correct the condition or warn of its existence (see Mercer v City of New York, 88 NY2d 955 ). Here, Defendant had notice of the condition by virtue of the log entry in Exhibit 1.
Furthermore, the facts presented fall within the doctrine of res ipsa loquitur and create an inference that the accident was caused by Defendant's negligence because the event was the kind which does not ordinarily occur in the absence of negligence, the instrumentality of the accident was within the exclusive control of Defendant and there was no contribution on the part of Claimant (see, Corcoran v Banner Super Mkt., 19 NY2d 425 ). Accordingly, the Court finds Defendant responsible for any injuries suffered by Claimant.
There is little in the record to establish Claimant's damages. The medical records establish that he suffered a bump on the back of his neck, headaches and dizziness in the aftermath of the accident. However, there is nothing to establish permanent damages, especially since the record reveals that Rogers had been complaining of neck pain and headaches for a three year period, most of which time predated the incident in question. Claimant's symptoms were diagnosed as a right temporomandibular joint disorder, the treatment for which included a tooth guard to prevent grinding. Thus, the only pain and suffering proven at trial were the headaches and dizziness in the days after the incident.
Accordingly, the Court awards two hundred fifty dollars in damages (see, Prince v State of New York, UID No. 2011-049-105 [Weinstein, J., Dec. 22, 2011]). To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a(2).
All motions on which the Court may have reserved decision or which were not previously determined are denied.
LET JUDGMENT BE ENTERED ACCORDINGLY
November 26, 2019
Central Islip, New York
MAUREEN T. LICCIONE
Judge of the Court of Claims