Sangiacomo v State of New York

[*1] Sangiacomo v State of New York 2006 NY Slip Op 52362(U) [13 Misc 3d 1246(A)] Decided on November 8, 2006 Ct Cl Milano, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 8, 2006
Ct Cl

Alan Sangiacomo, Claimant,

against

State of New York, Defendant.



107450



APPEARANCES:

For Claimant:

Carl G. Dworkin, Esq.

For Defendant:

Hon. Eliot Spitzer, New York State Attorney General

By: Kevan J. Acton, Assistant Attorney General

Frank Milano, J.

Claimant Alan Sangiacomo, on March 23, 2001, while crossing the lobby of Building 12 of the State Office Campus in Albany, property of the defendant, slipped and fell, injuring himself. At the time, claimant was walking with the aid of crutches. He was 49 years of age and, due to injuries sustained earlier in life, had required the use of crutches for some 32 years.

The day in question was a wet one, and conditions at the time of claimant's arrival at Building 12 at approximately 4:00 p.m. were described by him as "sprinkling, raining and snow." After entering the building, as he crossed the terrazzo floor of the lobby, claimant's crutches slipped from beneath him and he fell, striking his head. Testimony concerning wet conditions within the lobby was given. Claimant described the conditions in a variety of ways, testifying to having observed "water scattered throughout the lobby," and to having observed "droplets" and "puddles" of water. When pressed upon cross-examination to specifically describe the dimensions or size of these areas of water, claimant stated they were the size of "a dime, quarter, Kleenex box, all different sizes."

"Having waived its sovereign immunity, the State is subject to the same rules of liability as apply to private citizens" (Preston v State of New York, 59 NY2d 997, 998 [1983]). "It is [*2]beyond dispute that landowners and business proprietors have a duty to maintain their properties in reasonably safe condition" (Di Ponzio v Riordan, 89 NY2d 578, 582 [1997]; Jones-Barnes v Congregation Agudat Achim, 12 AD3d 875, 876 [3d Dept 2004]). However, "[w]hile the State clearly owes a duty to claimants and others entering upon its property to maintain it in a reasonably safe condition under the circumstances, it is not obligated to insure against every injury which may occur" (Smith v State of New York, 260 AD2d 819, 820 [3d Dept 1999]).

The State's liability for a slip and fall is premised upon proof that it either created the alleged dangerous condition or knew, or in the exercise of reasonable care, should have known that a dangerous condition existed but, nevertheless, failed to remedy the situation within a reasonable time period (Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Diaz v State of New York, 256 AD2d 1010 [3d Dept 1998]; Keir v State of New York, 188 AD2d 918, 919 [3d Dept 1992]).

Where there is insufficient proof that the defendant created or had actual notice of the condition, liability turns on the issue of whether defendant had constructive notice. "To 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" (Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]; Zuppardo v State of New York, 186 AD2d 561, 562 [2d Dept 1992]).

There were no allegations made or proof presented that the defendant created a dangerous condition. Although mention was made of the tendency of terrazzo floors to become slippery when wet, there were no allegations made or proof presented, and certainly no expert testimony, that either terrazzo floors are inherently dangerous, generally, or that the terrazzo floor in Building 12 was defectively or negligently designed, specifically.

Further, there is little, if any, dispute that portions of the floor of Building 12 on March 23, 2001 were wet, although questions were in fact raised about the size and location of the wet areas. This matter, then, ultimately is reduced to determining whether the defendant had notice, actual or constructive, of a dangerous condition, the wet floor in the lobby of Building 12 on March 23, 2001, prior to claimant's fall and, if having had such notice, failed to take steps to correct that condition, and if so failing, through its actions or inaction, caused claimant's fall.

The claimant was the only witness at trial. Deposition testimony of two other individuals, employees of the defendant, was put into the record. The defendant called no witnesses. At the conclusion of claimant's case, defendant moved for an order of dismissal, asserting claimant failed to prove defendant had notice of the condition in the lobby of Building 12 on March 23, 2001 and further, failed to prove defendant had a reasonable period of time to remedy the condition. At trial, the Court reserved decision on defendant's motion. The Court now grants defendant's motion and finds, as a matter of law, based upon the proof presented at trial, that the claimant failed to prove that defendant had either actual or constructive notice of the condition of the lobby in Building 12 on March 23, 2001, and further failed to prove that defendant's actions or inaction were the proximate cause of claimant's fall.

March 23, 2001, was a wet day in Albany, New York. At approximately 4:00 p.m. that day, claimant arrived at Building 12 of the State Office Campus, having driven himself. He parked outside, approximately 75 feet from the entrance to the building. Exercising care in the wet conditions, as he was using crutches to slowly ambulate, claimant testified that it took him [*3]approximately 10 minutes to travel from his car to the building's entrance.

During this period of time, claimant testified that it was precipitating, and alternately described weather conditions as sprinkling, raining or snowing. He further stated the ground was wet and allowed these conditions would have caused his shoe bottoms and crutch tips to have become wet. Arriving at the building's entrance, claimant sought to dry his shoes and crutch tips by twisting the bottoms of their surfaces against dry concrete areas.

Entering the building and stepping into a vestibule, claimant crossed a "walk-off" mat that was wet, which re-moistened the bottoms of his shoes and crutch tips. He then began navigating through the lobby of Building 12 using "extreme caution," "inching forward," proceeding "very slowly," "concentrating heavily", as he sought to spy and if need be, avoid wet areas.

During his walk through the lobby, he observed "water scattered throughout the lobby" and identified "droplets" and "puddles" of water. He testified that as he traveled further into the lobby, the wetness on the floor decreased. Arriving at a third set of power-operated doors, activated by a wall mounted button to his left, he reached with his left hand to press the button. At that moment, his left crutch began to slide. He transferred weight off the left crutch to the right crutch, which then slid out from under claimant, causing him to fall to the floor.

Despite his slow and careful pace of travel and despite repeatedly and extensively detailing the extreme care with which he searched the lobby floor for areas of wetness as he traveled, claimant, at the specific location and time of his fall, did not see any water on the floor, specifically testifying to that fact, saying, "As far as I could tell, there was no water on the floor when I placed the crutch down."

Upon cross-examination, claimant acknowledged that prior to his fall, he made no complaint of the lobby's wet floor to anyone, did not report the wet conditions to anyone at the reception desk in the lobby, and asked no one at the reception desk for assistance in crossing the lobby. The reception desk was identified as being 40-50 feet into the lobby from the building entrance.

Claimant failed to produce any evidence demonstrating that defendant had actual notice of the conditions found in the lobby of Building 12 on March 23, 2001. No evidence or testimony was received to show that anyone told defendant, or that defendant knew, that the lobby floor had wet areas that day. No reports of others having slipped or fallen that day in Building 12 were produced. More damaging still, no evidence or testimony was received to show that anyone told defendant, or that defendant knew, that the specific location where defendant slipped and fell was wet or slippery. Indeed, claimant himself, an exceedingly careful man in such conditions, testified he did not see or observe wetness at the location he fell. Further, as to those areas he did observe wetness, claimant failed to complain to or notify defendant of the conditions, nor did he seek assistance to cross the lobby.

Failing to demonstrate actual notice, claimant endeavored to argue that defendant had constructive notice of the lobby conditions. Received as claimant's Exhibit 4 were a number of "Unusual Incident Reports," detailing falls or near-falls in Building 12. However, a review of those reports reveals falls, or near-falls, for a variety of reasons or for no identified reason at all, at a variety of locations within Building 12. The conditions under which, and reasons for which, people fell or nearly fell varied widely, ranging from no given reason to "I lost my footing" to "grease or oil on floor" to "wet floors" to "I fell." First, the reports fail, utterly, to demonstrate [*4]prior falls occurring under substantially similar conditions to those experienced by claimant. Second, in many of the reports, no specific location of the fall is given. In others, the location noted is not identified as the area where claimant fell. Reports which detail falls or near falls under conditions which may or may not approximate, to say nothing of being substantially similar to those claimant found on March 23, 2001, at locations which may or may not be near where claimant fell on that day, have no probative value to demonstrate defendant had constructive notice of the conditions which existed in the lobby of Building 12 on March 23, 2001, or more particularly, the area where claimant fell that day (see Malossi v State of New York, 255 AD2d 807, 808 [3d Dept 1998]).

In an effort to bootstrap an argument showing constructive notice, claimant offered Exhibit 3 for introduction into evidence. Exhibit 3 purports to be a record of climatological observations of the U.S. Department of Commerce, National Weather Service, in Albany, New York, on each and every day corresponding to the dates of the Unusual Incident Reports admitted into evidence as Exhibit 4. The records are uncertified. Upon that basis, defendant objected to their introduction into evidence at trial. The Court reserved decision at trial. The Court now sustains defendant's objection. Exhibit 3 is not received in evidence.

CPLR Rule 4528, entitled "Weather conditions," provides that:

"Any record of the observations of the weather, taken under the direction of the United States weather bureau, is prima facie evidence of the facts stated."

Alexander's Practice Commentaries to CPLR Rule 4528 (McKinney's Consolidated Laws of New York, 1992 Main Volume), further explains that:

"Weather Bureau records are self-authenticating if the requirements of CPLR 4540 are met, and a duly certified copy will satisfy the best evidence rule. See Richardson on Evidence §§ 575, 645 (J. Prince, 10th ed. 1973)."

Finally, CPLR Rule 4540(a) requires that:

"An official publication, or a copy attested as correct by an officer or a deputy of an officer having legal custody of an official record of the United States or of any state, territory or jurisdiction of the United States, or of any of its courts, legislature, offices, public bodies or boards is prima facie evidence of such record."

The weather records offered by claimant were not original documents and were not attested as correct by anyone other than claimant's attorney, who apparently downloaded the information from the internet. Use of "the common-law public document exception to the hearsay rule" demands proper authentication pursuant to CPLR Rule 4540 (People v Smith, 258 AD2d 245 [4th Dept 1999]; lv denied 94 NY2d 829 [1999]). The uncertified weather records, offered as proof of the weather conditions described therein, were thus inadmissible hearsay.

Claimant sought the introduction of Exhibit 3 to demonstrate that on days of rain in Albany, people fell in Building 12 (comparing those days to the Unusual Incident Report dates of Exhibit 4), and that such correlation demonstrated defendant had constructive notice of the conditions which existed in the lobby of Building 12 on March 23, 2001, a rainy day in Albany. Leaving aside the evidentiary failure of proffered Exhibit 3, even had the Court admitted it into evidence, it still would have had no probative value to prove defendant's constructive notice, the [*5]reason claimant sought to introduce it, by reason of the infirmities, previously described, of Exhibit 4. Even if claimant were able to draw a line between rainy weather in Albany (Exhibit 3) and falls in Building 12 (Exhibit 4), claimant failed to demonstrate such falls were in the same location and under substantially similar conditions as those existing on March 23, 2001.

Further defeating claimant's attempt to demonstrate defendant had constructive notice, the record is absolutely bereft of any evidence detailing the length of time water was on the floor of Building 12 on March 23, 2001. As a necessary part of proving constructive notice, it was claimant's obligation to present proof that the condition of which he complains existed for a period of time sufficient for the defendant to observe and remedy it. By failing to introduce any proof concerning the length of time the conditions existed, claimant has failed to prove a necessary ingredient of constructive notice. Further, the claimant, himself unable to observe the wetness on which he assumes he slipped, has failed to prove defendant knew, or should have known, of a hazard which caused him to fall at the specific location of his fall.

Floors, when wet, become slippery. Substantial case law provides that such knowledge, alone, does not create liability for a property owner. This claim reduces to an allegation that claimant slipped and fell on water tracked in by pedestrians entering the lobby of a large state office building on a rainy day. Ample case law has addressed similar situations. These cases overwhelmingly provide that a property owner is "not obligated to provide a constant remedy to the problem of water being tracked into its [building] in rainy weather" (see Ruck v Levittown Norse Assoc., LLC, 27 AD3d 444, 445 [2d Dept 2006]; Hackbarth v McDonalds Corp., 31 AD3d 498 [2d Dept 2006]; Dubensky v 2900 Westchester Co., LLC, 27 AD3d 514 [2d Dept 2006]).

In Yearwood v Cushman & Wakefield (294 AD2d 568 [2d Dept 2002]), the plaintiff slipped and fell on water on the lobby floor near the elevators in the building in which she worked. A heavy rain was falling and the defendant had placed runners across the length of the marble lobby floor, but extending only halfway into the elevator bank. The plaintiff slipped about five to ten steps after she left the runner, as she was walking toward an elevator. In granting the defendant summary judgment, the court noted that there was "no evidence that the defendant affirmatively created the wet condition in the lobby of the building, and it was not obligated to provide a constant remedy to the problem of water being tracked into a building in rainy weather" (Yearwood , 294 AD2d at 568). The Yearwood court concluded, at p. 569 that:

"In the absence of proof as to how long this puddle of water was on the floor, there is no evidence to permit an inference that the defendant had constructive notice of the condition on which the plaintiff fell . . . . Assuming that the defendant was aware that water on the lobby floor was a recurring condition in rainy weather, proof that the defendant was aware of this general condition would not be sufficient to establish constructive notice of the particular wet condition on the marble floor which caused the plaintiff to slip."

Again, in Rouse v Lex Real Assoc. (16 AD3d 273, 274 [1st Dept 2005]), the court, in affirming a trial level grant of summary judgment where plaintiff was injured as a result of a wet spot on a lobby floor, explained that:

"The fact that rainwater was being tracked into the lobby does not constitute notice of a [*6]dangerous condition . . . . Having received no complaints of a wet spot near the floor mat, defendants had no actual notice of the condition, and absent proof that the wet spot was sufficiently visible and had been there long enough to permit discovery and remedy before the accident, it cannot be inferred that they had constructive notice."

Similarly, in Gibbs v Port Auth. of NY (17 AD3d 252 [1st Dept 2005]), the court reversed a lower court which denied summary judgment to a building owner where the plaintiff was injured when she slipped and fell on a wet hallway floor while waiting with a group of people to audition to perform in a television commercial. The plaintiff stated that it was raining while she and others waited outside the building. After being let in, plaintiff "noticed a 'lot of water' on the floor, which 'must have been scattered [there] from the umbrella[s] and people [who] were walking in.' She observed at least two persons on the line slip, prompting her to wonder 'why nobody was cleaning it up.' Recalling 'the whole area [as] covered with water,' she then slipped and fell herself" (Gibbs, 17 AD3d at 253-254). The court found, at p. 255, that the lower court improperly found an issue of fact as to how long the water was on the floor:

"Even assuming that the water on the floor was visible and apparent, there is no proof in the record as to how long the water was on the floor. Although plaintiff testified that at least two other persons slipped before her, she admitted that she did not know how long the water was on the floor. Nor is there any evidence that any MSG employees were in the immediate vicinity where plaintiff fell before the accident. Given the total lack of evidence on the issue of the length of time the [condition] was present' (Berger v ISK Manhattan, Inc., 10 AD3d 510, 512 [2004]), there is no evidence from which a jury could infer that such condition existed for a sufficient period to allow MSG or its employees to discover and remedy it . . . .

In addition, because the evidence in this case strongly suggests that any water on the floor had been tracked into the building by the persons immediately preceding plaintiff on the line, or the umbrellas they were carrying, no inference of constructive notice arose . . . . MSG did not have an obligation to provide a constant remedy to the problem of water being tracked into a building in rainy weather."

The Court finds as a matter of law that claimant failed to prove that the water was visible and apparent where he fell (DiGrazia v Lemmon, 28 AD3d 926, 927 [3d Dept 2006]), and finds as a matter of law that claimant failed to prove that defendant had sufficient time to discover and clean up the water (Richer v State of New York, 31AD3d 943, 944 [3d Dept 2006]).

In view of his failure to show actual or constructive notice of the particular condition which caused his fall, claimant asserts that he was the victim of a recurring dangerous condition. This argument fails as well.

Claimant's proof at trial is insufficient to show, as a matter of law, constructive notice through the alleged recurring condition of water on the lobby floor during periods of precipitation. Cases involving a slip and fall resulting from tracked-in precipitation caused by ongoing rain or snow simply do not support a "recurring dangerous condition" argument.

The Court of Appeals has recently reminded that "[a] property owner will not be held [*7]liable in negligence for a plaintiff's injuries sustained as the result of an icy condition occurring during an ongoing storm or for a reasonable time thereafter" (Solazzo v New York City Tr. Auth., 6 NY3d 734, 735 [2005]). Further, "[t]here is also no duty to remedy a hazardous condition during a break in a storm since such lulls do not amount to cessation of the storm" (Sanders v Wal-Mart Stores, Inc., 9 AD3d 595 [3d Dept 2004]).

In Solazzo, the plaintiff was injured when he "fell on the wet, slippery station floor during an ongoing winter storm" (Solazzo v New York City Tr. Auth., 21 AD3d 735 [1st Dept 2005]). The court first noted that "there is no liability for a plaintiff's injuries resulting from a fall on accumulated snow, rain, ice, sleet or hail until after the storm has ended, so as to allow the defendants a reasonable period of time to clean the area" (Solazzo, 21 AD3d at 735-736).

Both the Appellate Division and the Court of Appeals in Solazzo rejected plaintiff's assertion "that the ongoing storm doctrine should not apply because his injury was caused by a recurring hazardous condition of which defendant Transit Authority was aware. A general awareness that the stairs and platforms become wet during inclement weather was insufficient to establish constructive notice of the specific condition causing plaintiff's injury" (Solazzo, 6 NY3d at 735; see Solazzo, 21 AD3d at 736; Cochetti v Wal-Mart Stores, Inc., 24 AD3d 852, 853 [3d Dept 2005]).

Similarly, claimant here seeks to avoid dismissal for lack of notice by arguing that the defendant knew that its lobby floor could become wet and slippery from tracked-in precipitation while it was raining. As in Solazzo, this claim must be rejected.

The salient issue is whether the defendant had notice of the particular condition which caused claimant's fall, not whether defendant knew that the floor gets wet or slippery during inclement weather (Abraham v Port Auth. of NY & N.J., 29 AD3d 345 [1st Dept 2006]; Edwards v 727 Throgs Neck Expressway, Inc., 24 AD3d 290 [1st Dept 2005], lv denied 7 NY3d 707; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511, 512 [2d Dept 2005]; Weiss v Gerard Owners Corp., 22 AD3d 406 [1st Dept 2005]).

The cases cited by claimant offer him no assistance. Chianese v Meier (98 NY2d 270 [2002]) involved a claim that defective building security provided by a landlord resulted in a criminal attack upon the plaintiff. The attacker gained access through an unlocked entrance door. In finding that the landlord had sufficient notice of a recurring dangerous condition regarding the building's front doors being left open, the court stated, at p. 278, that:

"Several tenants had complained about the building's front doors frequently being left open. Additionally, there was evidence of an assault and multiple burglaries in the building and adjoining buildings owned by defendant within two years preceding the attack on plaintiff. Defendants thus had actual notice of a particular recurring safety issue that was reasonably within their power to correct."

Contrary to claimant's assertion, this decision does not dispose of the issue of notice in claimant's favor. Repeated intentional criminal acts resulting from an affirmative failure on a defendant's part to secure a residential building cannot be said to be analogous to precipitation being tracked into a state office building on rainy days. The defendants in Chianese had received specific complaints from the tenants of a specific security problem which went unaddressed. The Chianese case is inapplicable to this claim, in which claimant relies upon a general [*8]awareness that some portion of the lobby floor of a large state office building may become wet from tracked-in precipitation during inclement weather.

Claimant also cites Emmi v State of New York (143 AD2d 876 [2d Dept 1988]) for the proposition that a recurring dangerous condition may suffice to show constructive notice. Again, the facts in Emmi bear little resemblance to this claim. In Emmi, the court found that proof of "the existence of debris primarily composed of food remnants on the floor of the corridor on a regular basis in the year preceding the accident was sufficient to constitute constructive notice . . . . In this regard, we note that the record amply demonstrates that the dangerous condition complained of in the corridor could have been avoided with little burden on the State by diligent supervision of the inmate porters assigned to transport garbage through the area" (Emmi, 143 AD2d at 879). As with the Chianese case, this Court sees no similarity in the State's failure to supervise inmate porters in transporting garbage in a correctional facility, for over a year, with the situation presented by precipitation being tracked into a state office building on a rainy day.

Claimant next cites Erikson v J.I.B. Realty Corp. (12 AD3d 344 [2d Dept 2004]) to demonstrate a recurring dangerous condition. Erikson also is inapplicable to the facts in this claim. In Erikson, the plaintiff slipped on an icy-looking line of discoloration emanating from milk crates regularly stored outside the defendant grocery store and flowing down the sloping sidewalk. Plaintiff testified that she observed this condition at the same location on 10 occasions during the previous six months. Defendant's manager:

"[C]orroborated the plaintiff's deposition testimony regarding the recurrence of the condition alleged to have caused the plaintiff's injuries. At his deposition, he testified that he either would hose down or spread sawdust, rock salt, or ice melt on the spillage, thus reinforcing the inference that the supermarket had actual knowledge of the specific recurring condition. . . . In addition, the supermarket manager testified that the milk delivery was placed in the same location every day" (Erikson, 12 AD3d at 345).

The facts in Erikson bear no resemblance to the instant claim. Erikson involves a dangerous condition repeatedly created by the defendant, a condition as to which defendant had actual knowledge. No such proof was presented by claimant at trial.

Claimant points to David v New York City Hous. Auth. (284 AD2d 169 [1st Dept 2001]) in support of the recurring dangerous condition allegation. In David, the claimed negligence was defendant's "failure to repair and prevent leaks in the ceiling and walls of the stairwell through which rainwater seeped" (David, 284 AD2d at 169), causing plaintiff to slip and fall. The David case is thus also factually distinguishable from this claim since it involves "a situation where a known defect on the premises is routinely left unattended and causes a recurring hazard" (Gloria v MGM Emerald Enters., Inc., 298 AD2d 355, 356 [2d Dept 2002]).

Claimant offers four cases as purported examples showing an owner held liable or answerable for failing to guard against the risk of a slippery terrazzo floor due to wet conditions.

In Kesselman v Lever House Rest. (29 AD3d 302 [1st Dept 2006]), the court reversed a lower court which granted the defendant summary judgment dismissing the complaint. The Kesselman case offers claimant no help with his inability to demonstrate notice of a dangerous condition. The Kesselman court did "not address the issue of actual or constructive notice as defendant failed to establish, as a matter of law, that it did not create the wet condition which [*9]caused this plaintiff to slip and fall" (Kesselman, 29 AD3d at 304). The evidence submitted on the summary judgment motion showed that:

"[T]he hallway [where plaintiff slipped on a wet substance] leading to the restaurant's restrooms was heavily utilized by waiters and other restaurant employees, as well as patrons utilizing the restroom. At the time of the incident, it was crowded with approximately 20 people, many of whom were moving in the opposite direction. Most of these people were waiters although Mrs. Kesselman stated some could possibly have been patrons coming from the restroom. However, she did not recall seeing patrons in the hallway at that time. Water and hot beverage service was located in this hallway, as well as waiter stations. Significantly, Mrs. Kesselman had to alter her path to the restroom as a result of waiters using one of these stations. The food from the kitchen was hand-carried to the dining room through this hallway. A small sink used to fill pitchers with water and ice was located near the waiter stations. The pitchers would be provided to patrons only by defendant's staff. . . . Defendant's manager testified at his deposition that since the hallway was heavily traveled, slippery material such as food and drinks might fall to the floor based on its intended use." (Kesselman, 29 AD3d at 304).

The Kesselman facts revolve around a defendant creating the dangerous condition in question, which was neither alleged nor proved in the instant case.

Claimant also offers Nevoso v Putter-Fine Bldg. Corp. (18 AD2d 317 [1st Dept 1963]), in which "[p]laintiff, a tenant, sustained personal injuries when he slipped and fell on a terrazzo pavement outside the lobby entrance of the apartment building in which he resided" (Nevoso, 18 AD2d at 318). The court reversed a trial court decision dismissing the complaint at the close of proof because the trial court mistakenly concluded that plaintiff's theory of recovery was limited to an allegation that the walkway where plaintiff fell was negligently constructed because terrazzo is slippery when wet. The Nevoso court pointed out, at p. 318, that:

"Plaintiff also proved that the condition was due to a failure to waterproof properly the retaining wall or to provide lateral drainage channels or trenches alongside the wall. Tenants testified that water collected in the depressed area near the circular drain, of which complaint had been made to the landlord's superintendent. One such complaint involved an accident."

Claimant offers no proof that the lobby floor of the state office building where he slipped was improperly constructed or otherwise defective. Interestingly, the Nevoso court notes the "principle that various kinds of construction involving smooth surfaces or surfaces made smooth or worn in ordinary use are not, per se, a sufficient basis for grounding the possessor's liability to one injured as a result of a fall thereon" (Nevoso, 18 AD2d at 319).

In Pignatelli v Gimbel Bros., Inc. (285 App Div 625 [1st Dept 1955], affd 309 NY 901 [1955]), plaintiff slipped on mud in the vestibule of defendant's store. The plaintiff obtained a favorable jury verdict which was upheld by the Pignatelli court, upon proof that defendant "had adopted rules requiring the porters to lay mats in the vestibule on rainy days" and that:

"[T]he jury was justified in concluding that either defendant had not placed the rubber mats in the vestibule at all, or that if it had, the mats had been removed prematurely. Either conclusion [*10]would support a finding that defendant had been negligent" (Pignatelli, 285 App Div at 627).

Once again, the facts in Pignatelli differ significantly from the instant claim. In Pignatelli the defendant failed to comply with its own rules to provide mats during inclement weather. Claimant has offered no proof that defendant failed to comply with its own rules, policy or procedure in the provision of mats in the building entranceway and lobby.

Claimant next cites Lefkowitz v 144 West Corp. (277 App Div 1143 [2d Dept 1950]) in which plaintiff slipped in a vestibule with a terrazzo floor which was wet because of rain tracked in from the outside. The lower court dismissed the complaint at the close of plaintiff's case. The Lefkowitz court reversed because:

"There was proof from which the jury could find that there was an excess amount of water, which had existed for at least an hour before the accident and that defendant's employees had not complied with defendant's directions to pull the rubber mat (normally lying some distance from the front door) up to the saddle of the entrance door whenever it rained, and to place a rubber runner under that mat to the front of the elevator" (Lefkowitz, 277 App Div at 1144).

Unlike the plaintiff in Lefkowitz, claimant has failed to prove that the water on which he slipped had existed for any period of time, much less an hour, and claimant offers no evidence that defendant failed to follow its own directions or procedures in the placement of mats.

Finally, claimant suggests that Kivlan v Dake Bros. (255 AD2d 782 [3d Dept 1998]) shows that the defendant herein had actual notice of its "slippery-when-wet floor" since the defendant "created the condition." Kivlan is a standard slip and fall case in which the plaintiff slipped on a puddle of oil at defendant's convenience store. The court affirmed the lower court's denial of defendant's summary judgment motion because there were "genuine issues of fact as to whether defendant had actual knowledge of and failed to properly remedy a recurring hazardous condition" (Kivlan, 255 AD2d at 783). The court found, at p. 783, that:

"[P]laintiff has established evidence of recurring oil spills and the accumulation of debris in the area where motor vehicles are permitted to park at defendant's convenience store/gas station, where motor oil and other automotive fluids are sold."

The Court sees no similarity between recurring oil spills in a specific location at the entrance to a convenience store and water spots tracked in by pedestrians entering a state office building during rainy weather.

Even had the Court found that the defendant had notice of the condition and failed to remedy it, claimant still would have failed to prove each and every element of his case. Claimant was also obligated to prove that the defendant's failure was the proximate cause of his fall. This, as a matter of law, he failed to do.

Claimant testified he observed no water at the location he fell. Further, there was no testimony by anyone, claimant included, that there was water observed, either before or after his fall. While it is not uncommon for people to fall after failing to observe the conditions which caused them to fall, it is most common that observations are made of the cause after the fall, be it a wet condition, a waxed floor, a torn carpet or a raised sidewalk. No such testimony of any kind [*11]was given here.

Beyond the possibility of defendant's negligence having caused claimant's fall, other plausible explanations exist as well. Upon entering the vestibule of Building 12, claimant's feet and crutch tips became wet again as he crossed a wet walk-off mat, this occurring after he had dried them upon arriving at the entrance to the building. Also, claimant spent approximately 10 minutes traveling from his car to the building entrance. During this time it was precipitating, which would have caused claimant's clothing and crutches to become wet.

Claimant's failure, in the absence of specific testimony which would have identified defendant's alleged acts and/or omissions as the cause of his fall, is that defendant's acts or omissions would be but one of at least three plausible scenarios which caused him to fall. Wetness from the bottom of claimant's re-moistened feet and crutch tips or moisture which was transferred from claimant's clothing or crutches to his shoes, crutch tips or the floor itself are equally plausible causes of his fall as defendant's negligence, in the absence of persuasive, specific, indeed any, testimony concerning conditions at the location and time of his fall. As such, claimant has failed to prove that acts or omissions of the defendant were the proximate cause of his fall.

"[F]ailure to prove what actually caused a [claimant] to fall in a situation where there could be other causes is fatal to a [claimant's] cause of action" (Dapp v Larson, 240 AD2d 918, 919 [3d Dept 1997]). Further, "[m]ere conclusions based upon surmise, conjecture, speculation or assertions are without probative value" (Maiorano v Price Chopper Operating Co., 221 AD2d 698, 699 [3d Dept 1995]; Denny v New York State Indus. for Disabled, 291 AD2d 615, [3d Dept 2002]). The inability of claimant to observe any water on the floor either before or after his fall would require the trier of fact to rely upon mere speculation as to the cause of claimant's injuries and is fatal to his claim (Martin v Wilson Mem. Hosp., 2 AD3d 938, 939 [3d Dept 2003]; Curran v Esposito, 308 AD2d 428, 429 [2d Dept 2003]; Piccirillo v Beltrone-Turner, 284 AD2d 854, 856 [3d Dept 2001]).

The Court will now address other arguments offered in claimant's post-trial memorandum of law. As defendant called no witnesses, claimant argues that the "missing witness" principle renders any prior slip and fall reports at Building 12 "substantially similar" to claimant's fall since defendant did not prove that they were not substantially similar. Claimant seeks to shift his burden of proof to defendant. It is claimant's burden to show by a preponderance, as the proponent of the evidence, that each alleged prior fall was substantially similar to claimant's fall (Malossi, 255 AD2d at 808). In fact, the "missing witness" principle is inapplicable because claimant has not demonstrated that the defendant controlled any particular witness who would offer material testimony as to whether the prior falls were substantially similar to claimant's fall (Trotta v Koch, 110 AD2d 631 [2d Dept 1985]).

In his memorandum, in the Preliminary Statement, claimant asserts the following, "Consequently, this matter is res judicata - Claimant has made a prima facie case of entitlement to judgment as to liability, and the Court's determination of that issue upon the Motion and Cross-Motions [in denying the claimant's and defendant's respective summary judgment applications] is final and conclusive."

Claimant argues that defendant's motion at the close of claimant's proof at trial, asserting that claimant had not proven a prima facie case of negligence, is barred by the doctrine of res judicata. [*12]

The basis of claimant's res judicata argument is that in rejecting claimant's motion for summary judgment the Court found that claimant had met his initial burden of showing that he was entitled to judgment (although denying the motion having found triable issues of fact existed), and that decision is now final and conclusive as to whether claimant presented a prima facie case at the subsequent trial.

Beyond a misapplied attempt to invoke the principles of res judicata (the same parties seeking to re-litigate the same issue or issues on the merits) under circumstances where, as here, they do not apply, claimant apparently misapprehends the distinction between the Court's role in an application for summary judgment to merely search the record for issues of fact, drawing inferences most favorable to the party moved against, and the Court's role at trial to actually determine issues of fact based upon proof presented at trial.

To that point, at trial, unlike his affidavit submitted in support of his summary judgment motion, claimant was unable to testify that he saw water on the floor at the location of his fall either before or after he fell. This is fatal to his claim.

In his summary judgment affidavit, claimant stated that he fell because "[a]pparently, I had unknowingly put my right crutch down onto a spot of water, and then my left as well." At trial, claimant testified that he saw no water at the location of his fall. Further, he gave no testimony that he observed, after he had fallen, the presence of water where he fell. As earlier stated, claimant may not base his case upon speculation as to the cause of his fall.

Similarly, in his affidavit, claimant stated that there was "intermittent precipitation." At trial, claimant said that as he entered the building it was sprinkling, raining or snowing, or in other words, ongoing precipitation. Claimant's own trial testimony, as opposed to his affidavit on the summary judgment motion, proved the applicability of the "ongoing storm" doctrine discussed earlier.

At trial, regardless of the outcome of any prior motions, claimant was required to present a prima facie showing of each element of the claim in order to avoid dismissal at the close of proof. When faced with a dismissal motion at the close of claimant's proof, the Court may dismiss the case by determining that, after affording "the nonmoving party every inference which may be drawn from the facts presented and considering the facts in a light most favorable to the nonmoving party, there is no rational process by which the trier of fact could base a finding in favor of the nonmoving party" (Staples v Sisson, 274 AD2d 779, 780 [3d Dept 2000]).

Defendant's motion at the close of proof asserts that claimant failed to make a prima facie showing that defendant had notice of the allegedly dangerous condition. Defendant further argues that claimant failed to present proof sufficient to charge defendant with constructive notice: "[T]hat the condition was visible and apparent and existed for a sufficient period of time prior to the accident to permit the [defendant] to discover and remedy it" (Boucher v Watervliet Shores Assoc., 24 AD3d 855, 856 [3d Dept 2005]).

Claimant offered no proof that defendant had actual notice of the water upon which he allegedly slipped. Further, as to constructive notice, claimant himself did not see the water upon which he allegedly slipped either before or after he fell, despite carefully staring at the floor as he slowly walked across the lobby, nor was there any proof given, from any source, concerning the length of time water was said to have been on the lobby floor of Building 12 or at the location of claimant's fall.

Accordingly, the Court has determined, irrespective of the defendant's choice to call no [*13]witnesses, that claimant failed as a matter of law to prove the defendant's negligence (in failing to demonstrate actual or constructive notice) or that claimant's fall was proximately caused by defendant's actions or inaction.

For all of the foregoing reasons, defendant's motion for dismissal is granted. The claim is dismissed.

Let judgment be entered accordingly.

Albany, New York

November 8, 2006

FRANK P. MILANO

Judge of the Court of Claims