Uid: 2009-010-008 Claimant(s)

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LEWIS v. THE STATE OF NEW YORK, #2009-010-008, Claim No. 108463
Inmate slip on ice, defendant not negligent, condition open and obvious.
Case Information





Claimant short name:


Footnote (claimant name) :



Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):


Motion number(s):

Cross-motion number(s):


Terry Jane Ruderman

Claimant’s attorney:


Defendant’s attorney:


Attorney General for the State of New York

By: Dewey Lee, Assistant Attorney General

Third-party defendant’s attorney:

Signature date:

May 20, 2009


White Plains


Official citation:

Appellate results:

See also (multicaptioned case)

Claimant seeks damages for injuries he allegedly sustained on February 21, 2003 during his incarceration at Mid-Orange Correctional Facility (Mid-Orange). The trial of this claim was bifurcated and this Decision pertains solely to the issue of liability.

On February 18, 2003, there was a 21-inch snowstorm in the vicinity of Mid-Orange. Three days later, claimant allegedly fell in the facility yard near the weight shack. The weight shack is an outdoor covered area with open sides and houses exercise equipment.1 Claimant contends that due to defendant’s negligence, the yard was icy and slushy and this condition caused claimant to fall. Defendant maintains that it followed its usual snow removal policies and it was not aware of any dangerous condition.

Claimant testified that after the evening meal on February 21, 2003, he intended to go to the gym but, due to its closure, he went to the yard instead. Claimant testified that the yard was covered with ice and slush. He fell en route to the dip bar, near the weight shack area (Ex. 13). Claimant attributed the cause of his fall to ice. Claimant was familiar with the area because he frequented it four to five days a week.

Lieutenant Laura Cestaro testified that she was the watch commander on duty at the time of claimant’s fall. Reading from the weight shack logbook for February 21, 2003, she noted that Correction Officer Szuleski had made rounds at 5:00 p.m. and that the shack was open. Cestaro was also asked to review several accident reports from February 7, 2003, February 18, 2003 and February 19, 2003 which evidenced falls by employees and inmates (Exs. 18-23). These incidents occurred in other locations of the facility and were not in the vicinity of the weight shack.

Cestaro testified that, pursuant to the snow removal policy at Mid-Orange, civilian employees, under the direction of William Cronic, clear the major roadways and walkways. Inmate work gangs, organized by sergeants, were responsible for the recreation area, yards and the grounds from the cottages to the main sidewalks (Ex. 5).

William Cronic, who has been employed at Mid-Orange for 15 years, testified that he supervises the civilian workers who clear the snow at the facility. He stated that his crews use plows and trucks and do not clean the recreation area. Cronic further explained that sergeants and the watch commander organize inmate gangs that are responsible for snow removal in the recreation areas.

Correction Officer David Szuleski, who had been employed at Mid-Orange for 23 years, testified that on February 21, 2003, he was working in the weight shack area during the 3:00 p.m. to 11:00 p.m. shift. He stated that the area was open for general use and that there were no warning signs posted. At 5:00 p.m., Szuleski wrote in the logbook, “appears secure, shack opened” (Ex. 7). Szuleski explained that, at the start of a shift, his normal procedure was to open the gym, the chapel, and the gate to the weight area. He would check for weapons, search the shack and check the yard fence for holes. Szuleski would also assess the weight area for the safety and security of the inmates and notify his supervisor of any problem. If needed, he would close the weight area. On February 21, 2003, he did not record any problems and the shack was opened. Szuleski testified that, even when there is a large accumulation of snow, it was constantly shoveled all day. Certainly, three days after a big storm, it would have been cleared. On cross-examination, it was elicited that on the date of claimant’s alleged accident, Szuleski made a logbook entry stating that claimant was injured while “working out” (Ex. 7).

Sergeant Thomas Prior testified that inmate gangs are responsible for removing snow in the shack. In addition, individual inmates using exercise equipment have access to shovels so that they can perform any further necessary cleanup.

Correction Officer Kenroy A. Davis was on duty in the gym on February 21, 2003. At 5:00 p.m., he recorded an entry in the gym logbook noting “fire safety check and rounds made. All appears operative and secure” (Ex. B). Based upon his writings, he testified that the gym was opened.


It is well established that “[t]he State - - just as any other party * * * is responsible, in the operation and management of its schools, hospitals and other institutions, only for hazards reasonably to be foreseen, only for risks reasonably to be perceived” (Flaherty v State of New York, 296 NY 342, 346). The State is not an insurer of the safety of its premises and negligence cannot be inferred solely from the happening of an accident (see Killeen v State of New York, 66 NY2d 850, 851). Negligence must be proven (see Mochen v State of New York, 57 AD2d 719) and the reasonable standard of care must be applied with an appreciation of the problems caused by winter weather (see McGowan v State of New York, 41 AD3d 670; Pappo v State of New York, 233 AD2d 379). The mere failure to remove all snow and ice from walkways does not constitute negligence (see Wheeler v Grande’Vie Senior Living Community, 31 AD3d 992), unless it is shown that defendant’s efforts increased the hazard (see Nowaski v City of New York, 19 AD3d 467).

Upon listening to the witnesses testify and observing their demeanor as they did so, the Court finds that there was a lack of credible evidence to establish that claimant’s injuries were caused by any negligence attributable to defendant. First, the Court did not find claimant’s testimony worthy of belief. Second, the logbook introduced on claimant’s direct case states that claimant was injured while “working out” (Ex. 7). Claimant offered no explanation for this entry. This further detracted from claimant’s credibility. Third, the evidence presented did not establish that defendant was or should have been on notice of a dangerous ice condition or that defendant was negligent in its maintenance of the area (see Joseph v Pitkin Carpet, Inc., 44 AD3d 462; Gentile v Rotterdam Sq., 226 AD2d 973 [no negligence where a thin layer of snow remained and ice was not cleared from sidewalk]). Notably, while claimant presented proof of other accidents at the facility, they were not of any probative value because they did not occur at the claimed accident situs. Defendant’s “‘[g]eneral awareness that icy conditions may exist is insufficient to establish constructive notice’” (Richer v State of New York, 31 AD3d 943, 944, citing Boucher v Watervliet Shores Assoc., 24 AD3d 855, 857). In this matter, there was no proof that the surface was abnormally dangerous or posed an unusual condition that differed significantly from the condition of any other walkway in winter (see Saez v City of New York, 82 AD2d 782 [patches of snow and ice on sidewalk did not pose an unusually dangerous condition]). Moreover, the State is not obligated to warn against conditions that could be readily observed by the proper use of one’s senses (see Stanton v Town of Oyster Bay, 2 AD3d 835) because an open and obvious condition is a warning in itself (see Tarricone v State of New York, 175 AD2d 308, 309, see Herman v State of New York, 94 AD2d 161, affd 63 NY2d 822). Here, claimant testified that the area looked like an ice-skating rink; thus, if that testimony is believed, the condition was open and obvious and claimant should have conducted himself accordingly.

Accordingly, the Court finds that claimant failed to make out a prima facie case and the claim is therefore dismissed.


May 20, 2009

White Plains, New York


Judge of the Court of Claims

11. The general vicinity was alternatively referred to as the recreation, weight or weight shack area.

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