Smith v County of Nassau
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Smith v County of Nassau 2012 NY Slip Op 30703(U) March 13, 2012 Supreme Court, Nassau County Docket Number: 018148/10 Judge: Randy Sue Marber Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ....,........ ....... ... ...... [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. RANDY SUE MARBER JUSTICE TRIAL/IAS PART 14 ARSENIO SMITH Index No. : 018148/10 Motion Sequence... Motion Date... 02/0l/12 Plaintiff -against- COUNTY OF NASSAU Defendant. Papers Submitted: Notice of Motion....... ..... Affirmation in Opposition........................... Reply Affirmation........................................ Upon the foregoing papers , the motion by the Defendant , THE COUNTY OF NASSAU (" County" ), seeking an order , pursuant to CPLR 3212, granting it summary judgment and dismissing the Plaintiff s complaint, is decided as hereinafter provided. The Plaintiff commenced this action on September 23, 2010 , to recover damages for personal injuries allegedly sustained when he was caused to trip and fall on a puddle of water in his jail cell on October 25, 2009. Issue was joined by service of the Defendant's verified answer on or about October 12 , 2010. Specifically, in his verified complaint , the Plaintiff alleges that while he was incarcerated at the Nassau County [* 2] Correctional Center , he developed the Methiciln Resistant Staphylococcus Aureus MRSA" ) infection as a result oflaying in the water on the floor of his jail cell after his fall. The Plaintifftestified at a hearing pursuant to General Municipal Law ~ 50on March 9, 2010. The Plaintifftestified that when he first moved into his jail cell , about one and a half weeks prior to the accident , he noticed that there was a leak from the toilet and that the water was covered up with newspaper. (See Defendant's Notice of Motion as Exhibit " 50- h Transcript , pgs. 22- , attached to the ) According to the Plaintiff, the button to flush the toilet would get stuck causing water to overflow from the toilet. (Id. at pg. 30) The Plaintifftestified that on October 25, 2009 , after eating his dinner , he used the bathroom and after flushing the toilet , the water overflowed. (Id. at 35) He asked the corrections officer for a mop and the officer never returned with a mop. When he got up again to ask for the mop, he slipped on the water and fell onto the floor. The Plaintifftestified he noticed the water accumulating on the floor. (Id. that before he fell at 41- 42) On May 10 2011 , the Plaintiff testified at an Examination Before Trial , where he testified that there was a leak under the sink and not the toilet. 27- EBT Transcript , pgs. (See , attached to the Defendant' s Notice of Motion as Exhibit " ) Upon first arriving in his cell , the Plaintiff did not notice any problems with the toilet , only the sink. According to the Plaintiffs testimony, the The Plaintiff called for an officer toilet overflowed on the date of the accident. , but no one responded. (Id. (Id. at 28) (Id. at 33) When the Plaintiff got up from his bed to call a corporal he slipped and fell on the floor. The Plaintiff testified that [* 3] his elbow hit the edge of his bed when he fell. (Id. at 34) After laying on the ground for 45 minutes , a corporal , 2 officers and a nurse arived in the Plaintiff s j ail cell. (Id. at 35) After another 15 minutes, the ambulance arived and the Plaintiff was taken to Nassau County Medical Center. The Plaintifftestified that he notified correction officers about the leak , but he could not recall who. He stated that the officers did not do anything about the leak except give the Plaintiff a stick to un-jam the button for the toilet. that the toilet did not overflow on any day prior to the date of the accident. (Id. at 62- 63) He further testified (Id. at 63) The sink , however , did leak before the date ofthe accident. The Plaintifftestified that the cause of his fall was the water that overflowed from the toilet. Attached as Exhibit "D" to the Defendant's Notice of Motion is a Maintenance Work Order , dated October 15 , 2009 , which states that the sink hose was cracked , the hot and cold water was running and sink stoppage. The Work Order, signed by Joseph Rotundo states that the work was completed on October 15 2009. In its motion for summary judgment, the County avers that it was unaware of any problems with the Plaintiff s toilet prior to the accident. The County further contends that it was only aware of a leaky sink. Based on the fact that the Plaintiff testified that the first time the toilet overflowed was the date of the accident , the County contends that it was not on notice , actual or constructive , of the defective condition prior to the accident. Moreover , the County contends that summary judgment is waranted because it had no duty [* 4] to warn the Plaintiff against a readily observable condition. In opposition , the Plaintiff contends that the plumbing facilties in his cell which consisted of a combination unit steel toilet and sink , was a constant problem. The Plaintiff relies on the deposition testimony of Scott Denis , a corrections officer , and Patrick Starke , a maintenance supervisor. Mr. Denis did not recall whether there was a problem with the toilet prior to the date of the accident nor whether the floor was wet at the time of the accident. Denis Transcript , dated May 18 , 2011 , attached to the Plaintiff s Opposition (See as Exhibit " ) Mr. Starke testified that he had dispatched a plumber to address the problems indicated in the work order regarding the leaky sink. He did not recall , however, any (See Starke Transcript, dated August problems with the toilet or the button to flush the toilet. , 2011 , attached to the Plaintiff s Opposition as Exhibit " ) The Plaintiff also submits the EMS report prepared by the Nassau County Police Department emergency medical technician who indicated that Mr. Smith was lying on the soaking wet floor of his cell upon arrival. (See Plaintiff s Opposition Exhibit " The County has a duty to maintain premises " in a reasonably safe condition under the circumstances (but is J not obligated to insure against every injury which may occur Smith v. State of New York 260 A. State of New York 59 N. 2d 997 2d 819 , 998 (1983). " (TJo 820 (3d Dept. 1999); see Preston constitute constructive notice , a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit defendant' s employees to discover and remedy it" Crawford v. AMF [* 5] Bowling Ctrs., 18 A. D.3d 798 , 799 (2d Dept. 2005), quoting of Natural Hist. 67 N. Gordon v. American Museum 2d 836 (1986). Actual notice may be found where the defendant created the condition , or was in fact aware of its existence prior to the Metropolitan Transp. Auth. 99 A. accident. Lewis 2d 246 (1st Dept. 1984) The Defendant established its entitlement to summary judgment as a matter of law. The County presented evidence in admissible form establishing that it did not create the condition nor did it have actual or constructive notice ofthe defective condition prior to the date of the accident. Specifically, the County presented evidence that it responded to complaints of a leaky sink in the Plaintiffs jail cell and completed the repair. In opposition , the Plaintiff failed to raise an issue of fact. Although a work order was placed regarding the sink , there is no evidence presented , other than the Plaintiff s own testimony, of a defective condition with respect to the toilet. The Plaintiff testified that the toilet did not overflow on any day prior to the date of the accident. While the County does have a duty to maintain the premises in a reasonably safe condition , the defective condition must exist for a sufficient length of time to permit the County to discover and remedy it. In the present case, in light of the Plaintiff s testimony that there were no prior incidents ofthe toilet overflowing, the County did not have sufficient notice to discover and remedy the problem. The Plaintiffwas " required to show by specific factual references that the (DJefendant had knowledge ofthe allegedly recurring condition York 34 A. D.3d 528 , 529 (2d Dept. 2006), quoting Stone v. Green v. City of New Long Island Jewish Medical [* 6] Center 302 A. 2d 376 (2d Dept. 2003). As testified to at his deposition , the Plaintiff did not complain of the toilet overflowing prior to the date of the accident. Moreover, the Plaintifftestified that he noticed the water on the floor prior to the fall. The defective condition was readily observable, yet the Plaintiff elected to walk on the wet floor which caused him to slip and fall. It is well settled law that the County does not have a duty to warn of a condition that is open and obvious. In view ofthe foregoing, the County has established its entitlement to summary judgment dismissing the complaint. Accordingly, it is hereby ORDERED , that the County' s motion , seeking an order pursuant to CPLR ~ 3212 , granting it summary judgment and dismissing the Plaintiff s complaint , is GRATED. This decision constitutes the decision and order of the Cour. DATED: Mineola , New York March 13 2012 Hon. Randy S ENTERED MAR 15 2012 NASSAU COUNTY COUNTY CLERK' S OfftCE
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