New York State Court of Claims

New York State Court of Claims
BENNETT v. THE STATE OF NEW YORK, # 2021-053-003, Claim No. 124031


Following a trial on the issue of liability only, the Court determined that claimant failed to establish that condition of concrete sidewalk at Groveland Correctional Facility caused claimant to fall and his ensuing injuries. The State's motion for a directed verdict was denied. The claim is dismissed.

Case information

UID: 2021-053-003
Claimant short name: BENNETT
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 124031
Motion number(s):
Cross-motion number(s):
Claimant's attorney: FRANZBLAU DRATCH, P.C.
BY: Brian M. Dratch, Esq.
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: February 19, 2021
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant Marlon Bennett alleges that on April 12, 2013 he was caused to fall on a broken and damaged section of sidewalk while incarcerated at the Groveland Correctional Facility (Groveland) due to the negligence of the defendant State of New York. A Notice of Intention to File a Claim was then served by claimant upon the Office of the Attorney General of the State of New York and on March 12, 2014, a claim was filed with the Clerk of the Court of Claims. This claim alleges that claimant sustained severe injuries to his left arm as a result of this incident due to the negligence of the defendant. On April 14, 2014, the defendant filed an answer denying claimant's allegations.

On October 19 and 20, 2020, a trial on the issue of liability only was held in Buffalo, New York, where testimony in support of the claim was received from claimant and Anne Jordan, who was formerly a Correction Officer with the Department of Corrections and Community Supervision (DOCCS) assigned to Groveland at the time of the subject incident. In defense of the claim, the State provided testimony from Jeffrey Schillaci, a former Fire and Safety Officer for DOCCS at Groveland and Donald Oldenburg, a former Maintenance Supervisor 3 at Groveland. Following the trial, the parties requested and were granted an opportunity to prepare and submit post-trial memoranda on January 15, 2021.


The claimant testified that he was incarcerated for approximately two years and was transferred in 2013 to Groveland, where he resided at the time of the subject incident. At Groveland, he stated that he was assigned to a dormitory known as Dorm L. Claimant testified that Dorm L consisted of three buildings housing 70 to 90 inmates and he resided in Dorm L-1. He stated that during this time period he walked with a cane due to surgery on his left thigh that occurred prior to his incarceration. The cane was issued to him by DOCCS.

Claimant testified that on the day of the incident, April 12, 2013, he walked out of Dorm L-1 intending to go to the commissary. He stated that his cane was in one hand and he was holding a bag in the other hand. Claimant testified that the commissary building was located between Dorm L and another dormitory and that the only way to reach it was by walking along a sidewalk connecting the two buildings. He also testified that it was prohibited for inmates to walk off the sidewalk onto the grass between the sidewalk and the buildings. Prior to the day of the incident, claimant stated that he used this very same sidewalk five to six times per day as he also used it to get to the chow hall and the medical building.

Claimant testified that the section of sidewalk where he fell was broken in a couple of places and was sinking into the ground and that when it rained, water covered the sidewalk surface. He identified Exhibit H, two photographs of the sidewalk leading from Dorm L. Claimant identified the line on the photo drawn during his deposition which indicated the path he took out of Dorm L to where his fall occurred. Claimant testified that the "X" on the photo signifies where the water collected and the sidewalk section was broken. He stated that he left Dorm L and was walking alone on the sidewalk when he noticed that water had collected and was covering a section of sidewalk. Claimant testified that since he was not permitted to walk on the adjacent grass, he attempted to remain on the sidewalk and walk around the water. In so doing, he testified that he stepped on the broken section of sidewalk and that he then felt the concrete move and fell. He stated that this sidewalk section regularly accumulated water and it had just stopped raining about one hour prior to his fall.

The claimant testified that a correction officer who was stationed outside approached and asked him if he was alright and that two other correction officers came to his assistance and took him to the infirmary. At the infirmary, claimant told Ms. Jordan that his arm hurt and she then called to the Medical Department, who took an x-ray of his left elbow and he was then transported to the Erie County Medical Center (ECMC). Claimant identified his signature and the date listed on the Inmate Injury Report (Exhibit K) and that he had stated that he "fell on uneven sidewalk. landed on L elbow."

On cross-examination, claimant testified that he had seen cracks in that section of sidewalk before without any water and that he had not previously fallen. He stated that he was holding a cane in his right hand. Claimant testified that prior to his fall, he walked past this section of sidewalk six times per day and that he had been at Groveland about six months prior to his accident. On redirect examination, claimant stated that he had to use the cane because of the prior surgery to his left leg, but that his left leg did not contribute to his fall and that he fell because the concrete moved.

Anne Jordan is the Offender Rehabilitation Counselor at Groveland and testified that she has held this title for the past five years. She stated that prior to this position she was a correction officer at Groveland for about ten years. Jordan testified that in 2013, she was a correction officer and was assigned to Dorm L and had been assigned there three months prior to the subject accident. Jordan testified that claimant was one of the inmates she was responsible for in Dorm L1 and on the day of the incident, he reported to her that he had fallen on the sidewalk in front of the L block dormitory and injured his elbow. She stated that claimant told her that he was on the way to the commissary and that there was no other walkway to get there from Dorm L. Jordan stated that she uses that same sidewalk each day to access Dorm L1.

Jordan identified two photographs of the walkway (Exhibit H). She stated that the blue line in the upper photo shows the door claimant would exit to access the walkway and that the area marked with an "X" was uneven with one section higher than the other. Jordan testified that it was uneven prior to claimant's fall and that she was aware that it was uneven and that it accumulated water whenever it rained. She stated that when this section was covered with water, she would just walk on the right side of the sidewalk where it had less water. Jordan testified that at no time did the concrete ever move beneath her feet on this sidewalk section.

Jordan testified that after claimant advised her of his fall, she walked past that same sidewalk section but did not otherwise inspect it and formed no opinion as to the cause of claimant's fall. She stated that she did not know the specific location where claimant fell. She did not report any complaint regarding the condition of this sidewalk section, although she was aware that others had complained about it being uneven and accumulating water when it rained.

On cross-examination, Jordan testified that she did not witness claimant's fall and does not know the exact location where he fell. She stated that she used this sidewalk daily and never reported it as a hazard and was aware of no one falling prior to claimant's incident.

Jeffrey Schillaci was the Groveland fire and safety officer and testified that he served in that position for six years until he retired in May 2018. He stated that his career with DOCCS at Groveland lasted over 28 years. Schillaci identified the Accident/Injury Investigation Report (Exhibit L) relating to claimant's fall and testified that there were no prior falls in this specific area. He testified that this report was completed by CO DuBois and that there were no notation about the sidewalk or to any unsafe procedure or condition that was a cause of the accident. Schillaci stated that the grounds of Groveland are inspected weekly to determine whether any unsafe conditions exist. Schillaci testified that the section of the sidewalk where claimant's fall occurred was cracked but it was even and had a lip of only 3/4 inch. He stated that he never notified maintenance that this sidewalk section needed repair and was not aware of any complaints regarding its condition. Schillaci also testified that the head of fire and safety for DOCCS in Albany would also inspect the grounds of Groveland on an annual basis and that this would include an inspection of the subject sidewalk section.

Schillaci testified that on the day of claimant's incident, he inspected the sidewalk section later that same day and stepped on the area where claimant had described falling. He stated that the sidewalk was cracked but not uneven and that the concrete did not move. Schillaci testified that there was a drop of 3/4 inch from one pad to the other on the side and that the lips and cracks were 3/4 inch to a maximum of one inch, describing the change as gradual, not sudden. He also stated that he had received no prior complaints regarding this sidewalk and no one had fallen prior to claimant's incident.

On cross-examination, Schillaci testified that it was his responsibility to inspect the grounds at Groveland for any unsafe conditions. He was then referred to statements in his affidavit from an earlier motion for summary judgment (Exhibit D).

Donald Oldenburg, Jr. was formerly the Groveland maintenance supervisor at the time of the subject incident. He testified that he held the position of Maintenance Supervisor 3 for seven years until his retirement in 2016. Oldenburg stated that he never received a work order to repair the subject sidewalk prior to claimant's fall. He also testified that he inspected the sidewalks in Groveland on a weekly basis and recalled walking on the subject sidewalk, indicating that it had a gradual slope and the difference in height between the sidewalk sections was no more than inch. Oldenburg testified that these sidewalk sections did have cracks but there was no loose concrete and he had never reported this sidewalk as unsafe or dangerous.

On cross-examination, Oldenburg testified that he worked at Groveland for 28 years and retired on September 28, 2016. He stated he regularly inspected the sidewalks and that there were no accidents prior to claimant's incident. Oldenburg testified that it was typical to have water on the walkways at Groveland following rain and this did not make them dangerous. Oldenburg testified that he recalled inspecting the subject sidewalk later the day of the accident and conducting an investigation with Mr. Schillaci after the lawsuit was commenced.

Oldenburg was asked to compare the photo exhibits taken in 2016 after the lawsuit was commenced (Exhibit E) with the photo taken in 2013 that had been marked by claimant in his deposition (Exhibit H). He testified that he was the one holding a ruler in photo Exhibit E and the measurement made by him that is depicted in the photo showed the lip between the sidewalk sections to be less than one inch. Oldenburg agreed that the lip between the two sections appeared more pronounced in photo Exhibit H. He testified that although the sidewalk section had a lip, he did not recall it being as pronounced as it appeared in photo Exhibit H. Oldenburg did agree that the sidewalk crack displayed in the 2016 photos (Exhibit E) appeared to be of the same two sidewalk sections shown in the 2013 photo (Exhibit H). He also testified that if the lip was actually as pronounced as it appeared in the 2013 photo (Exhibit H), that he would done something about it. Oldenburg concluded his testimony by stating that no repairs were made to the subject sidewalk following claimant's fall.


The State has a duty to maintain property it owns in a reasonably safe condition in view of all circumstances, which includes evaluating the likelihood of injury to others, the seriousness of the injury and the burden to avoid that risk (Preston v State of New York, 59 NY2d 997 [1983]; Basso v Miller, 40 NY2d 233 [1976]). Where the State has assumed custody of an inmate, it owes a duty to use reasonable care to safeguard the inmate from foreseeable risks of harm (Sanchez v State of New York, 99 NY2d 247 [2002]). The State will not, however, be held to be an insurer of inmate safety and it is claimant's burden of proof to demonstrate a failure by the State to take minimal protective measures when it knows or has reason to know of the likelihood that the harm suffered was a reasonably foreseeable consequence of the State's acts or omissions (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001], appeal dismissed 97 NY2d 649 [2001]).

The duty of care that is owed to an inmate is to prevent foreseeable risks of harm of which the State has actual or constructive notice, i.e., where the State "knew or had reason to know" or that the State "is or should be aware" of a dangerous condition (Sanchez, Id. at 255 internal quotation marks omitted). Where a hazardous or dangerous condition is alleged to exist, the State may be held liable when it has actual or constructive notice of the hazardous condition and fails to take reasonable measures to correct the danger (see Friedman v State of New York, 67 NY2d 271, 286 [1986]). Whether a dangerous or defective condition exists on property so as to create liability depends on the particular facts and circumstances of each case (Trincere v County of Suffolk, 90 NY2d 976 [1997]).

In this action, the claimant has the burden to establish that (1) a dangerous condition existed; (2) the defendant either created the dangerous condition or had actual or constructive notice of its existence and failed to alleviate the condition within a reasonable time period; and (3) the condition was a substantial factor in the events that caused the injury sustained by the claimant (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]).

The Court, as fact-finder, will assess the evidence and the credibility of the witnesses and resolve any factual disputes to determine whether the claimants have met their burden to establish negligence (Ring v State of New York, 8 AD3d 1057 [4th Dept 2004], lv denied 3 NY3d 608 [2004]; Janczylik v State of New York, 126 AD3d 1485 [4th Dept 2015]).

The claimant testified that he fell and was injured because a broken section of the concrete sidewalk moved under his foot and caused him to fall. No one witnessed claimant's fall and no witness testimony or any exhibit at trial substantiated his claim that the concrete on the subject sidewalk section moved when stepped upon. Although there was extensive testimony concerning the presence of water covering the subject sidewalk section, claimant did not assert and I do not find that the water covering the surface of this sidewalk section caused or contributed to his fall. Claimant was unequivocal in his testimony that the concrete moved, not that he slipped because of the presence of water. In addition, the existence of water covering the sidewalk immediately following rain was well known to claimant and to the correction officers working in the area of Dorm L1 as testified to by Ms. Jordan. Ms. Jordan, whose testimony I found credible, stated that when there was water on the sidewalk, she would simply walk on the right side of the sidewalk where it had less water and at no time did the concrete ever move beneath her feet.

In the Inmate Injury Report (Exhibit K), claimant reported to the nurse on duty that he "[f]ell on uneven sidewalk," making no mention that the concrete had moved and caused him to fall. Mr. Schillaci, whose testimony I also found credible, testified that he inspected the subject sidewalk the afternoon of claimant's fall and found the sidewalk cracked but not uneven and he also found that the concrete did not move. Schillaci also testified that he had not received any prior complaints regarding this sidewalk and that no one had fallen on this sidewalk prior to claimant. I find that Schillaci's testimony at trial and photo Exhibit E establish that the sidewalk at issue was not uneven and that the lip or height differential between the subject sidewalk section and the adjacent sidewalk was only 3/4 inch.(1) Both Mr. Schillaci and Mr. Oldenburg testified that the sidewalk section had a gradual slope and although cracked, there was no movement or loose concrete. The testimony of Mr. Schillaci and photo exhibit E demonstrate that the height differential between the subject sidewalk section and the adjacent section was only 3/4 inch. I find upon considering all of the facts and circumstances that this differential was a trivial defect and did not contribute to claimant's fall (Hutchinson v Sheridan Hill House Corp., 26 NY3d 66, 77 [2015]).

In addition, the testimony at trial established that this sidewalk was regularly used by both inmates and correction officers to walk from Dorm L to other buildings within Groveland, including the commissary, chow hall and medical building. Claimant testified that he walked on the subject sidewalk section about six times per day. There was no testimony indicating that anyone had fallen on this sidewalk section prior to claimant's fall and no written complaints had been filed regarding the condition of this sidewalk. Considering all of the facts presented regarding the subject sidewalk, I do not find that it constituted a trap or hidden defect. Rather, I find that the sidewalk had a gradual slope, and that neither the 3/4 inch height differential nor the presence of water over its surface following rain created an actionable claim. As such, I do not find that claimant has met his burden to establish that the sidewalk in its condition on the date of the claimant's fall was in a hazardous or dangerous condition (Zalkin v City of New York, 36 AD3d 801, 801-802 [2d Dept 2007]).

Upon consideration of all the facts elicited during this trial and after listening to and considering claimant's testimony and the testimony of Ms. Jordan, Mr. Schillaci and Mr. Oldenburg, and my examination of the trial exhibits, I do not find claimant's testimony credible that the concrete moved and caused him to fall nor do I find that claimant met his burden to establish that the sidewalk where he fell was in a hazardous or dangerous condition. The defendant's motion for a directed verdict at the close of the trial is denied as questions of fact were found by the Court to exist involving the credibility of the testimony by claimant and the defendant's representatives that were resolved as detailed in the decision above.

As to any objections upon which this Court reserved decision during the course of the trial and as to any motions made at trial upon which the Court previously reserved or which remain undecided, all are hereby denied. Accordingly, as I find that no dangerous condition existed, there can be no finding of liability against the State and the claim is hereby dismissed.

Let judgment be entered accordingly.

February 19, 2021

Buffalo, New York


Judge of the Court of Claims

1. In this regard, Mr. Schillaci testified that the lip or differential between this sidewalk section and the adjacent section was only 3/4 inch as it is depicted in photo Exhibit E. In photo Exhibit H claimant marked his path to the sidewalk section and an "X" where the water had collected. I find that it cannot be determined from photo Exhibit H what the height differential was between the subject sidewalk section and the adjacent section. In any event, claimant did not testify to the height differential or that the differential in any way contributed to his fall.