Claimant, Raheem Martin, seeks damages for personal injury suffered on June 2, 2019 when his left foot became stuck in an uncovered drain hole in the floor of the bathroom on Unit One E at Mid-State Correctional Facility (CF) causing him to fall. The liability trial of this claim was conducted on July 23 and July 24, 2024 at the Court of Claims in Utica, New York. The claimant testified on his own behalf and called two additional witnesses: William Burns, the former Acting Superintendent of Mid-State CF, and Ryan Sangiacomo, a trade specialist plumber at Mid-State CF. The defendant presented additional testimony from Mr. Burns and called Jaime Harris, R.N. and Thomas Bolanowski, a retired Department of Corrections and Community Supervision ("DOCCS") sergeant, to testify.

During the trial, claimant submitted ten exhibits, marked as Exhibits 1, 1A, 5, 6, 6A, 7, 7A, 8, 8A, and 9, which were received into evidence. The defendant submitted seven exhibits, of which Exhibits A, B, C, F, and G were received into evidence. Defendant's Exhibit D was only [*2]marked for identification. Defendant's Exhibit E, marked for identification, is printout of a DOCCS internal movement history screen for the claimant and its certification. The claimant objected to the admission of Exhibit E, and the Court reserved decision on its admissibility and directed the parties to address the issue in their post-trial briefs. At the conclusion of the claimant's case, the defendant made a motion to dismiss the claim which the claimant opposed. The Court reserved decision on the motion to dismiss and permitted the parties to submit post-trial briefs.

On June 2, 2019, the claimant was incarcerated at Mid-State CF and housed in Unit One E (T1-19)^[FN1] . At the time of the incident, the claimant testified he had been on Unit One E for approximately two and a half to three months (T1-42). At that time, he weighed approximately 215 pounds and is approximately five feet ten inches tall (T1-73, 78). He testified his shoe size is 9 ½ (T1-73).

The incarcerated individuals housed in Unit One E had one bathroom available for their use (T1-20, 42). As relevant to this matter, the layout of the bathroom consists of a set of toilet stalls to the right rear and a row of sinks to the left side (T1-20). Additionally, there is a window to the outside in the middle of the rear wall of the bathroom (id.). Between the stalls and the sinks is a drain opening in the floor of the bathroom (T1-38-39; Exhibits 6, 7).

On the date of the incident, claimant fell asleep around 5:00 p.m. while reading a book in his bed (T-20). He slept until he was awoken at count time (id.). The claimant testified that the count was called between 11:00 and 11:15 p.m. (T1-20-21). As required for the count, the claimant stood by his bed until the count was cleared (id.). The count was cleared by the unit Correction Officer (CO) at approximately 11:30 p.m. (T1-21). The claimant then went to use the bathroom (id.). He had slept through dinner and testified to being hungry and tired at that time (T1-24). When he entered the bathroom, there were at least three other incarcerated individuals already in it (T1-21).

According to his testimony, the claimant walked directly to the toilet stalls to the right when he entered the bathroom (T1-22). After he finished using the toilet, the claimant walked across the bathroom to the sinks on the opposite side to wash his hands (id.). In order to see himself in the mirror, the claimant took a couple of steps back after he washed his hands (id.). He then looked out the window to his right and saw that it was dark outside (id.). Because it was dark outside, the claimant turned and took a couple of steps toward the window (T1-23). When the claimant took his second step, his left foot stepped directly into an uncovered drain hole in the floor (id.). The claimant's left ankle twisted and he fell forward (id.). The claimant was looking straight ahead when he walked to the sink (T1-24). He was also looking straight out the window when he started to walk toward it (id.). The claimant did not look down at the floor while in the bathroom prior to the incident (id.). He testified that he was still looking out the window when the incident occurred (T1-37-38). He further testified that a person could only see that the drain hole was uncovered by looking down at it (T1-47-48).

At the time of the incident, the claimant testified he was wearing State-issued clothing [*3]and shoes (T1-44-45). According to the claimant, the State-issued shoes he wore at the time of the incident were in good condition (T1-45). After he fell, two of the other incarcerated individuals who were in the bathroom went to get the unit CO (T1-41). Shortly after the incident, CO Becker came into the bathroom and asked the claimant what happened (id.). The claimant told CO Becker that he "fell in the hole" (id.). Then, CO Becker called for backup as well as for a stretcher (id.). The claimant was carried from the bathroom on the stretcher to a van in front of the housing unit (T1-42).

From the housing unit, the claimant was taken directly to the infirmary (T1-46). While in the infirmary, he told the nurse about the incident (T1-46-47). The claimant told the nurse that he "fell in the drain" (id.). He also testified he told the nurse that, when his foot went into the drain, he twisted his ankle which caused him to fall (id.). During his conversation with the nurse, the claimant testified there were two COs with him in the infirmary (id.). According to the claimant, the COs stated that the drain hole had been uncovered for a long time (id.).

During his testimony, the claimant was shown several photographs of the bathroom (Exhibits 6, 7, 8). He recognized the photograph with the widest view as the bathroom on Unit One E (Exhibit 6; T-26). He testified that the photograph fairly and accurately depicted the bathroom on June 2, 2019 (T-30). The claimant marked various landmarks on the photograph during his testimony at trial (Exhibit 6A; T1-28-31).

When he was shown another interior photograph taken closer to the location of the incident, the claimant testified that it was a fair and accurate depiction of the bathroom on Unit One E (T1-33; Exhibit 7). The floor drain was again visible in this photograph and was marked, along with other areas, by the claimant (Exhibit 7A; T1-37). In addition to marking the floor drain and other areas, the claimant marked the photograph with the paths he walked in the bathroom prior to the incident (Exhibit 7A; T1-35-36). The claimant also identified the uncovered drain hole in a close up photograph taken from above (Exhibits 8, 8A; T1-38-39). He testified that the close-up photograph fairly and accurately depicted the uncovered drain hole his foot went into in the bathroom on June 2, 2019 (T1-39).

The claimant also testified that he had observed the uncovered drain hole in the bathroom prior to the date of the incident (T1-43). According to the claimant, the drain hole was large enough to fit a "small basketball" (T1-46). Prior to the date of the incident, the claimant testified he reported the uncovered drain hole to CO Becker as well as CO Joseph, another officer on Unit One E and requested they have someone fix it (T1-43). Both of them told the claimant that they would put in a work order to have the issue addressed (id.). He also testified that incarcerated individuals were not permitted to submit work orders at Mid-State CF (id.). Instead, according to the claimant, an incarcerated individual was required to report a maintenance issue to the CO in order for it to be addressed (T1-44).

On cross-examination, the claimant testified that the lighting in the bathroom was "fairly good" at the time of the incident (T1-49). The claimant does not wear glasses and nothing impeded his vision at the time of the incident (id.). However, the claimant testified that his vision was "blurred" at the time of the incident because he had woken up shortly prior to the incident (T1-49-50). The claimant had no medical condition which caused his vision to be blurry (T1-101). Instead, he testified his vision was blurry solely because he was tired (id.). The claimant also testified that he was not distracted at the time of the incident (T1-55).

The claimant conceded that he had used the bathroom a couple of times on June 2, 2019 prior to the incident (T1-50). When he used it earlier that day, the claimant conceded the drain hole was uncovered (T1-56). Additionally, the claimant testified on cross-examination that a person could see the floor drain when entering the bathroom (id.). However, they would not be able to see that the cover was missing unless they were standing near it (id.). He did not complain about the missing cover on the date of the incident (id.). According to the claimant, he last complained about the condition a month prior to the incident (T1-57). He made at least two complaints to two different COs who work different shifts regarding the missing drain cover prior to the date of the incident (id.). He did not know if any other incarcerated individuals complained about the missing drain cover prior to the incident (T1-58).

Prior to the incident, the claimant did not know which, if any, other incarcerated individuals were in the bathroom (T1-90). The claimant testified that the other incarcerated individuals in the bathroom at the time of the incident were not a threat to him, and he was not scared when he entered the bathroom (T1-92). In addition, he did not speak with the other incarcerated individuals in the bathroom before the incident occurred (T1-90).

The claimant called William Burns, who was Deputy Superintendent of Security, as well as Acting Superintendent of Mid-State CF in June 2019, to testify (T1-111). His responsibilities at that time included, among other things, the security and safety of the entire facility (id.). In response to the claimant's incident on June 2, a "fire-and-safety investigation" was conducted (T1-114). As part of that investigation, CO Dibrango took photographs of the bathroom as well as the claimant (T1-113; Exhibit 5, pp. 15-24). Following the investigation, an unusual incident report was prepared (T1-116; Exhibit 1A, pp. 3-20). Mr. Burns reviewed the report and the documentation submitted with it (T1-117; Exhibit 5, p. 34-38).

Based upon his review of the report, Mr. Burns testified that Sergeant (Sgt.) Thomas Bolanowski was the area sergeant on duty at the time of the incident and he was responsible for half of the facility (T1-120). Sgt. Bolanowski's responsibilities included, among other things, the safety of that portion of the facility (id.). Based upon the report, the incident was reported by Sgt. Bolanowski to the watch commander (T1-121). Because of the broken bone injury sustained by the claimant, the unusual incident report and investigation of the occurrence were required (T1-123).

Mr. Burns testified that with regards to repairs or maintenance at Mid-State CF, only employees of the facility can generate work orders (T1-127-128). He also testified that incarcerated individuals are not permitted to generate work orders (id.). If an incarcerated individual observed an issue which needed to be addressed, the individual had to notify the unit officer or an employee in the area, who could then complete a work order and submit it to the maintenance department (id.). There was a specific box near the entrance to the facility where employees would place work orders for the maintenance supervisor to retrieve (id.). The maintenance supervisor would check the box for work orders daily (T1-128). The work orders would then be assigned to the appropriate trade to perform the necessary work (T1-128-129). According to Mr. Burns, the COs were not responsible for making any necessary repairs (T1-129). Instead, their responsibility was generally limited to reporting the issues to the maintenance department by work order (id.). However, if there was an issue which required immediate attention, the issue was to be reported to their supervisor to go through the chain of command [*4](id.).

Mr. Burns testified that COs performed weekly integrity checks at Mid-State to look for security issues which needed to be addressed (T1-149). During these weekly checks, the COs would inspect the windows, doors, hatch covers and similar things which could lead to security breaches at the facility (id.). However, he did not believe a missing drain cover would have been an issue documented during an integrity check (T1-149-150).

When Mr. Burns was shown Exhibit F, the work order dated March 27, 2019, he testified that it requested that the drain cover be resecured in the Unit One E bathroom (T1-130-131). The work order stated that the drain cover was located in the unit officer's office (id.; Exhibit F). According to the March 27, 2019 work order, it was assigned to a plumber at Mid-State CF on April 1, 2019 (T1-132; Exhibit F). However, based upon the work order, Mr. Burns was unable to determine if the work had been completed (T1-135). He testified that typically the trade specialist would note on the work order that the requested work had been completed (id.). Since the bottom portion of the March 27, 2019 work order was blank, the work did not appear to have been completed (id.; Exhibit F).

Mr. Burns was also shown Exhibit G, a work order dated June 3, 2019 (T1-136). This work order also stated that the drain cover needed to be resecured (T1-137; Exhibit G). As with the prior work order, it was noted that the drain cover was located in the unit officer's office (id.). This work order was also assigned to a plumber to complete (id.). Mr. Burns testified that this work order indicated that the work was completed on June 4, 2019 (T1-138-139; Exhibit G). After being shown the June 3rd work order, Mr. Burns conceded that the March 27, 2019 work order was not completed prior to the incident (T1-151-152). He further conceded that the drain was uncovered from March 2019 until after the incident on June 2, 2019 (T1-152).

Claimant also called Ryan Sangiacomo, a trade specialist plumber at Mid-State CF, to testify (T1-159). Mr. Sangiacomo was the only plumber employed at Mid-State in June 2019; he was responsible for all of the plumbing needs at the facility (T1-159, 166). He testified that any plumbing work necessary would be communicated to the maintenance department either by a work order or telephone call to his supervisor (T1-162-165). According to Mr. Sangiacomo, work orders were submitted by facility mail or placed in the drop box in one of the employee entrance buildings (T1-168). Regardless of how the request for work was received, Mr. Sangiacomo's supervisor would then assign the plumbing work to him (T1-165-166). Once he completed his work, assigned or otherwise, he would complete the necessary paperwork (T-167). Mr. Sangiacomo testified the maintenance department would not conduct any routine inspections of the facility (T1-179-180).

When shown the March 27, 2019 work order, Mr. Sangiacomo recognized it as a work order request form utilized at Mid-State (T1-169; Exhibit F). He agreed that it was dated March 27, 2019 and he was assigned the work on April 1, 2019 (T1-170-171, 172; Exhibit F). Mr. Sangiacomo testified that the March 27 work order indicated that the drain cover in the Unit One E bathroom needed to be resecured and the cover was located in the unit officer's office (T1-170-171; Exhibit F). He also testified that, if he had performed the work, he would have stated that it was completed on the bottom portion of the work order (T1-173). Due to the bottom of the work order being blank, to his knowledge, the work was not completed at that time (T1-173, 178). Mr. Sangiacomo did not know why the requested work was not completed (T1-180).

Additionally, Mr. Sangiacomo was shown the June 3, 2019 work order and testified that it also requested work in the Unit One E bathroom (T1-174; Exhibit G). Based upon his review of this work order, the drain cover in the bathroom still needed to be resecured as of June 3rd (id.). Like the prior work order, the cover was reported to be located in the unit officer's office (id.). This work order was assigned to him on June 3, 2019 and he resecured the drain cover on June 4, 2019 (id.; T1-175-176).

When he was recalled by the defendant during its case, former Acting Superintendent Burns testified that the claimant was moved to Unit One E, a general population unit, on May 19, 2019 (T1-234). At Mid-State, there are three shifts: Tour 1 from 11:00 p.m. to 7:00 a.m.; Tour 2 from 7:00 a.m. to 3:00 p.m.; and Tour 3 from 3:00 p.m. to 11:00 p.m. (T1-199). According to Mr. Burns, incidents frequently occur during shift changes (T1-203). He also testified there were six master counts performed daily at Mid-State which would be performed at the same time each day (T1-261-262). On June 2, 2019, a master count was conducted at 10:00 p.m. and documented in the unit logbook (T1-194-195).

Typically, a master count at Mid-State takes 15 to 20 minutes to complete (T1-196-197). According to Mr. Burns, the unit officer would announce the master count to the unit (T1-198). When a master count is called, the incarcerated individuals are required to stand and they remaining standing until the master count was cleared (id.). Once the unit officer completes his count, he and the unit officer from the supporting unit will verify the count of the other's unit (id.). When the counts are verified, the unit officers complete the unit count slips and one of them would call in the count into the watch commander (id.). Once the watch commander received all the counts and verified them verbally, he releases the facility from the master count (id.). The completed count slips are then collected and taken to the watch commander to confirm the count (id.).

With regard to the incident in this matter, Mr. Burns testified that the photographs contained in the unusual incident report show that the claimant was not wearing his State-issued clothing (T1-205; Exhibit 5, pp. 15-17). According to Mr. Burns, incarcerated individuals at Mid-State were permitted to wear personal clothing and shoes as long as they complied with Mid-State requirements (T1-210, 248). He testified that incarcerated individuals were permitted to wear flip-flops or slides in the facility (T1-211). However, he had no knowledge of the shoes the claimant was wearing at the time of the incident (T1-210).

On cross-examination, Mr. Burns testified that pages from two separate logbooks are contained in claimant's Exhibit 5 (T1-237). Exhibit 5, page 28, is a page from the unit logbook and Exhibit 5, page 29, is a page from the watch commander logbook (T1-237). Based upon the unit logbook page, a master count was performed at 10:00 p.m. (T1-237-238; Exhibit 5, p. 28). Additionally, Mr. Burns testified that the watch commander logbook page indicates that the master count was completed by either 10:10 p.m. or 10:18 p.m., based upon his review of the handwritten document (T1-239). While he did not have any personal knowledge when the master counts on June 2, 2019 were conducted, Mr. Burns testified that a master count is conducted at 10:00 p.m. every day (id.). He also testified that, while another count could have been performed after 10:00 p.m., one would not have been done at 11:00 p.m. due to that being the time for a shift change (T1-245). Mr. Burns further testified that a unit CO can put a unit "on count" at any time (T1-264).

The defendant called Jamie Harris, R.N., a nurse on duty at Mid-State at the time of the incident on June 2, 2019, to testify. The claimant was brought to the infirmary emergency room on June 2, 2019 by stretcher (T2-18; Exhibit 5, p. 32). According to the records, Nurse Harris noted that claimant reported he stepped in a hole in the bathroom and fell (T2-17; Exhibit 5, p. 32). Based upon the medical records, Nurse Harris was informed by the claimant that he broke his fall with his left anterior arm (id.). She noted that the claimant complained of left forearm and left ankle pain (T2-20; Exhibit 5, p. 32). Nurse Harris also noted she observed a deformity to the claimant's left forearm (T2-36; Exhibit 5, p. 52). When Nurse Harris reported her assessment to one of the doctors at Mid-State, she received orders to send the claimant for evaluation at an outside hospital (T2-34-35).

The defendant also called Sgt. Thomas Bolanowski, one of the sergeants on duty on June 2, 2019, to testify (T2-43). According to Sgt. Bolanowski, the Unit One E logbook for June 3, 2019 is contained in claimant's Exhibit 5 (T2-46; Exhibit 5, p. 28). Sgt. Bolanowski testified that the stamp placed in a unit logbook by Tour 1 officers was always dated for the following day (T2-47). According to him, this was the procedure because Tour 1 is the "midnight shift" and a new stamp was placed in the logbooks at the beginning of the shift at 11:00 p.m. (T2-82-83).

Sgt. Bolanowski testified that a master count would be conducted on the Tour 3 shift at 10:00 p.m. (T2-46-47). The Tour 3 officers are then relieved around 10:50 p.m. (T2-47). The next master count would be conducted at 12:30 a.m. (id.). Based upon his review of the unit logbook page, Sgt. Bolanowski testified that there were no other counts conducted between 10:00 p.m. and the incident at 11:30 p.m. (id.). According to him, if another count was completed, it would have been recorded in the unit logbook (T2-48). However, Sgt. Bolanowski testified on cross-examination that the logbook page for June 2, 2019 was missing from the exhibit (T2-61, 63). Due to the missing page, he was unable to determine when all of the master counts were conducted on June 2, 2019 (T2-61).

As the sergeant on duty for Unit One E at the time of claimant's incident, Sgt. Bolanowski responded and took charge of the scene (T2-49-50). As part of his duties, he reported the incident to the watch commander and it was recorded in the watch commander logbook (T2-49). When he arrived on Unit One E, the claimant was still in the bathroom and had been placed on a stretcher (T2-51). The claimant did not change his clothes during the time Sgt. Bolanowski was in the bathroom with him (id.). To his knowledge, the claimant did not change clothes after the incident (T2-50-51).

Following the incident, Sgt. Bolanowski directed CO Dibrango to conduct an investigation (T2-66). Additionally, he directed CO Becker to prepare a memorandum regarding the incident (T2-74; Exhibit 1A, p. 10). Based upon the information provided to him, Sgt. Bolanowski prepared a memorandum and reported the findings to the watch commander (T2-65, 73; Exhibit 1A, p. 9). According to his memorandum following the investigation, the claimant "lost his footing on the open drain hole" (T2-74; Exhibit 1A, p. 9). Additionally, he stated that the claimant's injuries were consistent with a trip and fall (id.). In his memorandum, Sgt. Bolanowski deemed the incident to be an accident (T2-69). After the incident, the drain cover was located in the unit officer's office (T2-74). Sgt. Bolanowski was not aware of any prior work orders when he issued his memorandum, therefore he directed CO Becker to submit a work order to have the issue addressed (T2-74-75; Exhibit 1A, p. 9).

During the trial, the Court reserved judgment as to the admissibility of Exhibit E, pages 1 and 12, of the 509 page document (T1-233-235). Page 1 is the certification of an Inmate Records Coordinator at DOCCS, page 12 is a computer printout dated May 20, 2020 labeled Locator System and appears to be a record of claimant's placement at Mid-State CF during the period from April 15, 2019 through June 3, 2019 (Exhibit E, p. 1, 12). In the defendant's post-trial submission, it argues that the printout of the internal movement screen is admissible as a certified business record (Defendant's brief, p. 5). During the trial, Mr. Burns testified as to Exhibit E, indicating that it was an incarcerated individual's history within DOCCS (T1-233). In the claimant's post-trial submission, he maintains his objection and argues that the defendant failed to establish the requisite foundation for admissibility of the document (claimant's brief, p. 16-17). The Court has reviewed the arguments of the parties, the certification and foundation testimony at trial, and the relevant law.

Generally, "[a] business record is admissible if 'it was made in the regular course of any business and . . . it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter" (see Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330 [4th Dept 2009], quoting CPLR 4518[a]). In order to be admissible, the proponent must establish "[a] proper foundation . . . by someone with personal knowledge of the maker's business practices and procedures" (id., quoting West Val. Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950 [4th Dept 2002]). With regards to electronic records, like the printout the defendant seeks to move into evidence, "such a . . . record, shall be admissible in a tangible exhibit that is a true and accurate representation of such electronic record" (see CPLR 4518[a]). CPLR 4518 (c) also provides that "[a]ll records, writings and other things referred to in [CPLR] . . . 2307 are admissible in evidence . . . and are prima facie evidence of the facts contained, provided they bear a certification or authentication by . . . an employee delegated for that purpose" (see Purdie v State of New York, UID No. 2017-032-019 [Ct Cl, Hard, J., April 25, 2017]).

The defendant elicited testimony from Mr. Burns that the record is created by DOCCS employees in the regular course of business (T1-233). He also testified that the entries are made at or about the time of the occurrences (T1-232). Additionally, Mr. Burns testified that DOCCS employees were required to truthfully record the occurrences in the record (T1-233). Mr. Burns, who is not currently employed by DOCCS, did not establish that the record was a true and accurate representation of the electronic record maintained by DOCCS since he did not testify that he compared the printout to the electronic record. However, in addition to the testimony of Mr. Burns regarding the record, the defendant submitted a certification sworn to by Debra Dowsland, Inmate Records Coordinator I at Mid-State CF for DOCCS (Exhibit E, p. 1). The coordinator's certification states that the records contained in Exhibit E are a true and exact copy of records on file for claimant, that the records are maintained in the regular course of business of DOCCS, and as to those records created by DOCCS employees, the records were made in the regular course of business at the time of the event documented in the record, or within a reasonable time thereafter and that the employees had a duty to truthfully record such.

Accordingly, the Court finds that defendant has satisfied the element of trustworthiness on which the business record exception to the hearsay rule is based and admits said documents into evidence (see People v Hayes, 98 AD2d 824, 825 [3d Dept 1983]). The Court will receive [*5]Exhibit E, pages 1 and 12, into evidence.

The parties submitted post-trial briefs expanding upon their arguments made during trial. According to the claimant's post-trial brief, the uncovered drain hole in the Unit One E bathroom was an inherently dangerous condition. The claimant also asserts that the uncovered drain hole was not open and obvious and, even if it was, the defendant still failed to maintain the facility in a reasonably safe condition. Further, the claimant contends that the defendant had both actual and constructive notice of the condition and failed to contradict his proof regarding how the incident occurred. The defendant argued in its post-trial submission that it did not breach the duty to maintain the facility in a reasonably safe condition because the uncovered drain hole was open and obvious and not inherently dangerous. Further, the defendant argues that the claimant's negligence was the sole proximate cause of his injuries.

After listening to and observing the demeanor of the witnesses as they testified, and upon consideration of their testimony, as well as all of the other evidence received at trial, the applicable law, and the parties' post-trial submissions, the Court makes the following findings:

The State has a duty to maintain its property "in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk", with foreseeability the measure of liability (see Basso v Miller, 40 NY2d 233, 241 [1976], quoting Smith v Arbaugh's Rest., 469 F2d 97, 100 [DC Cir 1972], cert denied 412 US 939 [1973]; see also Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]). However, the State "is not an insurer against any injuries which might occur" (see Condon v State of New York, 193 AD2d 874, 874 [3d Dept 1993], citing Killeen v State of New York, 66 NY2d 859, 851 [1985]; see also Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]; Clairmont v State of New York, 277 AD2d 767, 768 [3d Dept 2000]; McMullen v State of New York, 199 AD2d 603, 604 [3d Dept 1993]). Nor can "negligence . . . be inferred solely from the happening of an incident" (see Muhammad, 15 AD3d at 808, citing Auger v State of New York, 263 AD3d 929, 930 [3d Dept 1999], quoting Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1999]).

In addition to the duty to maintain its property in a reasonably safe condition, a landowner has the duty to warn of a dangerous condition (see Cupo v Karfunkel, 1 AD3d 48, 51 [2d Dept 2003]). However, a property owner has no duty to warn of an open and obvious dangerous condition (id., citing Tagle v Jakob, 97 NY2d 165, 169-170 [2001]; see also MacDonald v City of Schenectady, 308 AD2d 125, 126 [3d Dept 2003]). Even though there is no duty to warn of an open and obvious dangerous condition, the duty to maintain the premises is separate and distinct (see Cupo, 1 AD3d at 51; MacDonald, 308 AD3d at 128; see also Sweeney v Riverbay Corp., 76 AD3d 847, 847 [1st Dept 2010]). Therefore, the fact that a dangerous condition may have been open and obvious does not preclude liability, but instead raises an issue of fact with regards to the comparative fault of the claimant (see Krutulis v Daiker's Inc., 229 AD3d 1115, 1116 [4th Dept 2024]; Meldrim v Holiday Meadows, LLC, 225 AD3d 1269, 1270 [4th Dept 2024]; Headley v M&J L.P., 70 AD3d 1312, 1313 [4th Dept 2010]). Only where the open and obvious "condition was 'not inherently dangerous as a matter of law'" will a landowner be absolved of liability for injuries caused by the condition (see Grgich v City of New York, 2 AD3d 680, 680-681 [2d Dept 2003]).

In order to establish a prima facie case of negligence in a trip and fall action, the claimant must demonstrate by a preponderance of the credible evidence that: (1) defendant owed claimant a duty of care; (2) there was a breach of that duty because a dangerous condition existed; (3) defendant either created the dangerous condition or had actual or constructive notice of it and failed to remedy the condition within a reasonable time; and (4) the dangerous condition was a substantial factor in the events which caused the claimant's injury (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Constr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept 2011]). The existence of a dangerous condition is generally a question of fact which "depends on the peculiar facts and circumstances of each case" (see Trincere v County of Suffolk, 90 NY2d 976, 977 [1997] [citation omitted]). In order to determine if the claimant has carried their burden, "the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (see Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see also Shirvanion v State of New York, 64 AD3d 1113, 1114 [3d Dept 2009]; Bush v State of New York, 57 AD3d 1066, 1066 [3d Dept 2008]).

Initially, the claimant's incident occurred in the Unit One E bathroom at Mid-State CF where he was incarcerated at the time. Thus, the Court finds the defendant owed a duty of care to the claimant in this matter.

The Court also finds that the uncovered drain hole located in the middle of the bathroom floor constituted a dangerous condition. By reason of the uncontradicted trial testimony as supported by Exhibits 6, 7, and 8, which depict the uncovered drain hole in the floor of the sole bathroom for use by the claimant and the others housed in Unit One E, the Court is persuaded that its location, appearance, size and depth render it a dangerous condition.

The claimant testified that it was difficult to see the drain hole was uncovered from a distance. He also testified he wears size 9 ½ shoes and his entire foot went into the uncovered drain hole. He also described the size of the hole as large enough for a small basketball to fit inside it. The undisputed testimony also establishes that the bathroom was the only one which could be used by the incarcerated individuals housed on Unit One E.

The defendant argues that the uncovered drain hole was not inherently dangerous because it was open and obvious and the claimant knew about the condition. However, the cases which the defendant relies upon are distinguishable from the facts in this matter. The uncovered drain hole in this matter was not inherent or incidental to the nature of the property (cf. Maldonado v City of New York, 29 Misc 3d 1072 (Sup Ct, Kings County 2010) [tree branch "on the ground of a park filled with trees is a condition inherent to the nature" of the property]). Additionally, this is not a case where the uncovered drain hole had any markings which differentiated it from the surrounding floor (cf. Holdos v American Consumer Shows, Inc., 91 AD3d 823 [2d Dept 2012] ["yellow and blue cable cover . . . was not inherently dangerous"]). Further, the incident in this matter did not result from a difference in elevation but rather an open hole in the floor large enough for the claimant to step into it (cf. Costidis v City of New York, 159 AD3d 871 [2d Dept 2018] [slight elevation difference "between . . . walkway and . . . tree bed was not inherently dangerous"]). Nor was claimant walking backwards at the time of the incident (cf. Graffino v City of New York, 162 AD3d 990 [2d Dept 2018] [decedent stepped backwards into a depression surrounding a recessed utility box]; Maldonado, 29 Misc 3d 1072 [plaintiff tripped over a tree [*6]branch while walking backwards]).

With regards to the issue of notice, there is no evidence in the record establishing that the defendant created the dangerous condition. However, the record establishes that the defendant had actual notice. The defendant's actual notice of the condition is established by the work order dated March 27, 2019 requesting the drain cover be resecured. In addition, the claimant testified that he complained to the unit officers about the missing drain cover prior to the incident. In response, the unit officers informed the claimant that they would submit a work order to have it addressed. Further, CO Becker stated in his report following the incident that the drain cover was in the unit officer's office "for several days" prior to the incident.

With regards to constructive notice, "a defect must be visible and apparent . . . for a significant length of time prior to the accident to permit defendant's employees to discover and remedy it" (see Gordon v American Museum of Natural History, 67 NY2d 836, 837 [1986]; see also Byrd v Target, 228 AD3d 1242, 1242 [4th Dept 2024]). The record here establishes that the defendant had constructive notice of the condition. The testimony as well as the March 27, 2019 work order show the condition existed and was not remedied for over two months prior to the incident. In addition, while Mr. Burns testified that COs would not report the missing drain cover during weekly integrity checks, he admitted they were looking for "security-type breaches". Even if it was not the escape-type of breach staff would be looking for, it is reasonable to expect that an open drain hole in a CF large enough for a man's foot to fit into it should have been discovered and remedied prior to the claimant's incident.

Turning to proximate cause, the claimant must show "that defendant's conduct was a substantial causative factor in the sequence of events that led to . . . injury" (see Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520 [1980]; see also Derdiarian, 51 NY2d at 315; NY PJI 2:70). The claimant need not exclude every possible cause but rather is "required to prove only 'that it is more likely or more reasonable that the alleged injury was caused by . . . defendant['s] negligence than by some other agency" (see Pipp v Guthrie Clinic, Ltd., 80 AD3d 1014, 1015 [3d Dept 2011], quoting Gayle v City of New York, 92 NY2d 936, 937 [1998]).

The Court finds that the defendant's argument that the claimant's version of the incident was not truthful is pure speculation and conjecture. At trial, the defendant offered no evidence or testimony to contradict the claimant's testimony that the incident occurred when he stepped in the open drain hole in the bathroom. To the contrary, the defendant's own investigation into the incident determined that the claimant tripped on the open drain hole. Additionally, Sgt. Bolanowski determined that the claimant's injuries were consistent with a trip and fall. The investigation did not reveal any information which would support a conclusion that the incident occurred any other way.

Additionally, the claimant was taken directly from the bathroom to the emergency room in the Mid-State infirmary. At that time, the claimant informed Nurse Harris that he tripped and fell because of the open drain hole. Further, Nurse Harris observed a deformity to the claimant's left forearm and applied a splint. She also informed one of the Mid-State doctors of her assessment of the claimant and received orders to transport him to an outside hospital. The evaluation at the outside hospital determined that the claimant sustained an ulnar fracture in his left wrist and a left ankle sprain.

Further, contrary to the defendant's arguments, the credibility of the claimant is not [*7]undermined by his testimony that he was wearing personal clothing at the time of the incident or because he misstated the date he transferred onto Unit One E. The record in this matter contains ample photographic and documentary evidence which corroborates the claimant's testimony regarding the existence of an uncovered drain hole in the bathroom which caused the incident in this matter. Based upon the corroboration in this record, the Court finds that the claimant's testimony was credible with respect to the relevant issues in this matter. Therefore, a preponderance of the evidence supports a finding that the claimant's injuries were more likely caused by the existence of the dangerous condition as he provided undisputed testimony that he twisted his left ankle in the open drain hole and struck his left forearm on the windowsill when he fell.

Although the claimant has established the defendant's liability for the incident, he is not without culpability for his fall and the injuries he suffered. It is axiomatic that individuals are obligated to observe their surroundings by watching where they walk and taking care to avoid dangerous conditions which are readily observable. The claimant testified that the lighting in the bathroom was "fairly good". He also testified that he was aware the drain hole was uncovered and had previously complained about the condition to the unit officers. Further, the claimant testified that he was looking out the window as he was walking toward it. Under the circumstances, the Court finds that the claimant bears some culpability for his fall. Accordingly, the Court apportions 30% liability for the trip and fall to claimant and 70% liability to defendant.

Let interlocutory judgment be entered accordingly.

Any and all evidentiary rulings or motions not previously decided are hereby denied.

A trial on the matter of damages will be scheduled by the Court as soon as practicable.The parties are encouraged to consider alternative dispute resolution for the ascertainment of damages.