Howe v County of Nassau

[*1] Howe v County of Nassau 2006 NY Slip Op 52227(U) [13 Misc 3d 138(A)] Decided on October 27, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 27, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2005-1848 N C.

Palo R. Howe, Respondent,

against

County of Nassau, Appellant.

Appeal from an order of the District Court of Nassau County, First District (Vito M. DeStefano, J.), entered June 22, 2005. The order denied defendant's motion for summary judgment.

Order reversed without costs and defendant's motion for summary judgment dismissing the complaint granted.

In this negligence action, plaintiff alleges that on or about June 8, 2000, he slipped and fell in a puddle of water in the shower room area of his jail cell block in the Nassau County Correctional Center. Defendant denied the allegations and asserted, among other things, contributory negligence and indemnity, pursuant to CPLR 4545. At plaintiff's deposition (a copy thereof was annexed to defendant's moving papers), plaintiff testified that outside the shower stall, he saw a puddle of water, which he described as approximately "36 inches oval around" and "maybe a quarter of an inch" deep. Plaintiff called to a guard, who was outside the shower area, and told him about the water, but the guard denied him permission to clean it up. The guard never entered the shower area. Plaintiff acknowledged in his testimony that although he saw the water on the floor, he went back to his cell to retrieve his deodorant and returned to the stall area to take a shower. Plaintiff alleged that the water caused him to slip and fall, resulting in the claimed injuries. Plaintiff also admitted that he did not have to take a shower at that time.

Defendant moved for summary judgment to dismiss the complaint, alleging that it is not [*2]liable as a matter of law, as it demonstrated that the puddle in the shower area was an open and obvious condition and not inherently dangerous and that defendant did not create the condition or have actual or constructive knowledge of it. Plaintiff did nothing more than allege that the floor was wet; he did not offer proof of what caused the puddle or how long it had been there. Additionally, plaintiff testified at deposition that in his previous incarcerations in the same facility, he had never observed water outside the shower stall.

It was proper for defendant to establish its entitlement to summary judgment through plaintiff's deposition testimony (see Morgan v State of New York, 90 NY2d 471 [1997], rearg denied 90 NY2d 936 [1997]; Coles v David's Cookies, Inc., 299 AD2d 309 [2002]). Defendant demonstrated that the water outside the shower stall, which condition was necessarily incidental to the use thereof, was an open and obvious condition which an observer, reasonably using his or her own senses, would see and which is not inherently dangerous as a matter of law (see Tagle v Jakob, 97 NY2d 165, 170 [2001]; Grgich v City of New York, 2 AD3d 680 [2003] [Defendant would be entitled to judgment as a matter of law for an open and obvious condition if liability is predicated on a duty to warn or the condition was not "inherently dangerous"]). Indeed, plaintiff admitted that he saw the puddle before stepping into it. In view of the foregoing, defendant's unopposed motion for summary judgment should have been granted (see Conroy v Saratoga Springs Auth., 259 App Div 365, affd 284 NY 723 [1940]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: October 27, 2006