Malave v State of New York

Court of Claims

Decided on March 6, 2026

Claim No. 139687

Javier E. Vargas, J.

Papers Considered:

Notice of Motion, Affirmation, Affidavit & Exhibits Annexed 1-14

Affirmation in Opposition & Exhibits Annexed 15-25

Reply Affirmation 26

Upon the foregoing papers, the motion by Defendant, State of New York (hereinafter [*2]"State"), to dismiss the Claim filed by Claimant Nylia Malave (hereinafter "claimant"), is granted in accordance with the following decision.

Claimant served a Notice of Intention to File a Claim upon the State on November 11, 2022 (see Claim at 2, ¶ 5).FN3 By subsequent Verified Claim filed August 22, 2023, claimant commenced the instant personal injury action seeking to recover damages for injuries sustained when she was a 16-year-old minor as a result of a trip and fall accident. Specifically, claimant alleges that "on September 3, 2022, at approximately 1:15 PM, at Roberto Clemente State Park, located at 301 W Tremont Avenue, Bronx, NY 10453 ("subject premises"), at or near the exterior stairway and staircase located between the pool area and the outdoor food court," she tripped and fell as she was descending that staircase (id. at 3, 6, ¶¶ 9, 33). She alleges that she "was caused to trip and/or fall and be precipitated to the ground as a result of a raised, cracked, damaged, broken and defective staircase with cracked and/or missing and/or inadequate pieces of the steps within the exterior staircase and stairway at the subject premises, and fell down multiple steps" (id. at 6, ¶ 35).

In her Claim, claimant further alleges that by its carelessness, recklessness and negligence, the State caused the subject premises to remain in a dangerous, hazardous, unsafe and/or defective condition for an unreasonable amount of time despite having prior written notice of the specific defect at issue (see id. at 6, 7, ¶¶ 36, 37). As a result of the State's negligence, claimant alleges that she "has been caused to suffer severe permanent injuries, including but not limited to her left leg, left ankle, left foot, left pinky toe, right knee, right hand, right elbow, including a 5th Metatarsal bone displaced fracture of her left foot which required surgery" (id. at 8, ¶ 38).

By Verified Answer filed November 3, 2023, the State denies a majority of the allegations, and raises twelve affirmative defenses, including failure to comply with Court of Claims Act § 11 "by failing to state the defect with sufficient particularity in terms of size and location to permit adequate investigation by the State," and that the defect was de minimis and trivial. Thereafter, this Court held a conference and issued a Preliminary Conference Stipulation and Order dated November 20, 2023, setting forth a discovery schedule. At the close of discovery, the Court issued a Certification Order (Vargas, J.), dated March 11, 2025, with a deadline for a Note of Issue to be filed by claimant. As per the Order, the pre-trial conference was deferred in anticipation of the State's motion practice.

Now, by Notice of Motion filed June 30, 2025, the State moves for summary judgment dismissal of the Claim, pursuant to CPLR 3212FN4 as well as Court of Claims Act §§ 10 and 11, [*3]arguing first, as a threshold matter, that the Claim should be dismissed for failure to comply with Court of Claims Act § 11 (b) in that it does not satisfy the "place where" the incident occurred. The State argues that the Claim states that the accident happened "at or near the exterior stairway and staircase located between the pool area and outdoor food court" (Aff. in Support, Exh. A), but insufficiently fails to indicate which step on the staircase was involved in the accident. Furthermore, the State argues that without specification or a photo of the location, it is forced to speculate as to which step was involved in the accident.

Second, the State argues that summary judgment dismissal should be granted as claimant is unaware as to what caused her fall, and failure to identify the cause of her fall is fatal to her Claim. Per the State, at her deposition, claimant testified that she never saw what caused her fall because it happened so fast (see id., Exh. E at 37-38). While the claimant and her brother testified that they observed various cracks throughout the exterior staircase, the State argues that both failed to pinpoint which of the cracks was the cause of claimant's fall. Additionally, claimant submits a picture which is supposed to depict the step where she fell,FN5 but that picture depicts the bottom of the stairs; on the other hand, claimant's expert submits a picture of an exposed rebar at the top of the stairs,FN6 which allegedly contributed to the claimant's fall, but there is no testimony that an exposed rebar caused claimant's fall. The State proffers that it is mere speculation that any defect in the staircase caused claimant's fall as opposed to her merely missing her step while wearing Crocs shoes and not watching where she was going.

Third, the State argues that summary judgment dismissal is warranted because, to the extent that a defect exists, it had no actual notice of the alleged defect on the stairs from anyone, including claimant and her family. Claimant's brother, Donavan Malave, did not notice any cracks in the exterior staircase prior to the accident (see Exh. K at 25). While claimant's mother testified to various cracks up and down the steps prior to the incident, she had no problems walking on the steps (see id., Exh. L at 17). Furthermore, the testimony of Park witnesses, Frances Rodriguez, Michael Paniagua and Benigno Paniagua, reflect that no one told the State of any specific problem with the top of the stairs or that any of them knew of any issues (see id. Exhs. F, G, H), and there were no prior complaints, incident reports, documentation or any issues regarding the exterior staircase (see id., Exh. F at 43). The State further argues that for the Claim to have merit, there must be evidence of constructive notice, and to constitute constructive notice, a defect must be visible and apparent and must exist for a sufficient length of time prior to the accident to permit the State's employees to discover and remedy it. Here, the State argues that since there is only speculation as to what caused the claimant to fall, there can be no finding of constructive notice.

By Affirmation in Opposition filed December 3, 2025, claimant opposes dismissal,FN7[*4]arguing that the Claim satisfies the pleading requirement of Court of Claims Act § 11 (b), because it specifies that the trip and fall incident occurred on September 3, 2022, at the State Park "at or near the exterior stairway and staircase located between the pool area and outdoor food court," as a result of a "raised, cracked, damaged, broken and defective staircase with cracked and/or missing and/or inadequate pieces of the steps" (Aff. in Opposition, Exh. A, ¶¶ 9, 35). Moreover, the State's own witness, Benigno Paniagua, confirmed that there is only one such staircase in the park which connects the pool to the food court (see id., Exh. F at 16-17). According to claimant, the precise location together with a description of the defect enabled the State to conduct a thorough investigation.

Additionally, claimant argues that summary judgment dismissal based on the unknown cause of the fall must be denied because circumstantial evidence establishes the cause of her fall in that she descended one or two steps before falling; her brother immediately identified that a piece of the step was out of place on the second step from the top and described the step as cracked; her mother observed cracks all over the steps for 10 years; and that her engineer expert, Dr. Marletta documented chipped treads with exposed rebar, excessive nosing slopes, and the complete absence of required intermediate handrails. Claimant further argues that whether the State photograph depicts the stairs' top or bottom is irrelevant since Dr. Marletta's inspection documented hazardous conditions throughout the staircase, including the precise location where the fall originated. Although claimant could not identify the exact defect with certainty, she argues that her testimony - that she tripped on a misaligned step combined with a description of cracks and defects - is sufficient to raise a triable issue of fact.

Moreover, claimant argues that the State's motion for summary judgment on the grounds that it neither created nor had actual or constructive notice of the hazardous condition must be denied. Claimant argues that the State had constructive notice of the defect because, according to Dr. Marletta, the defects depicted in the photographs and at the accident location could not have happened overnight but were the results of wear and weathering without remediation (see id., Exh. J, at 49). Dr. Marletta noted that the presence of an exposed rusted rebar develops over an extended period as cracked and spalled concrete which allows moisture to penetrate and corrode the underlying steel reinforcement. Claimant further argues that the Marletta experts identified the State's multiple violations of NYC Building Code, NYS Building Code, and NYS Industrial Code Rule 36, designed to protect pedestrians from hazardous staircases, including the use of handrails, and that the lack of handrails prevented recovery which worsened claimant's fall.

On December 17, 2025, the State filed a Reply in further support of summary judgment dismissal, reiterating its Court of Claims Act § 11 (b) argument, and further recapping its argument that there is no testimony from anyone that an exposed rebar on the second from the top step contributed to claimant's accident or was the cause of her fall. This Court agrees.

As a threshold matter, Court of Claims Act § 11 (b) requires the claim to specify, among other things, the time when and place where the claim arose (see Vallarta v State of New York, 211 AD3d 884 [2d Dept 2022]; Laignelet v State of New York, 205 AD3d 795 [2d Dept 2022]). The purpose of the statute is to "'enable [the State] to investigate the claim and promptly ascertain the existence and extent of its liability'" (Czynski v State of New York, 53 AD3d 881, [*5]882-83 [3d Dept 2008]; see Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996], lv dismissed 90 NY2d 925 [1997]). "Although 'absolute exactness' is not required, the claim must 'provide a sufficiently detailed description of the particulars of the claim to enable [the State] to investigate and promptly ascertain the existence and extent of its liability'" (Morra v State of New York, 107 AD3d 1115-1116 [3d Dept 2013][internal citation omitted]; see Sharief v State of New York, 164 AD3d 851,852 [2d Dept 2018]).

Applying these legal principles to the case at bar, the record reflects that on September 3, 2022, while visiting the State Park with her mother and her two brothers, claimant sustained injuries when she allegedly slipped and fell on the park's exterior staircase. Within approximately two months of the incident, claimant timely served the Attorney General with her Notice of Intention to File a Claim and later her Claim. The State contends that the Claim fails to comply with Court of Claims Act § 11 (b)'s "place where" requirement. Here, contrary to the State's contention, it was unnecessary for claimant to initially plead the specific step where the incident occurred, as the dynamics of a fall may involve more than one step (see Moravec v City Univ. of NY, 32 Misc 3d 681, 683 [Ct Cl 2011]; Paul v State of New York, UID No. 2008-031-501 [Ct Cl, Minarik, J., Mar. 14, 2008]). For certain, claimant provided a sufficient description of the location of the incident such that attaching a photograph of the stairs would have been useful, but under these circumstances, nonfatal. Hence, the Court finds that the Claim pleads a sufficiently detailed description, indicating the time when the incident occurred, as well as the specific location within the Park to allow the State to investigate the staircase where the incident occurred (see Williams v State of New York, 238 AD3d 963, 964 [2d Dept. 2025]).

Next, to prevail in a summary judgment motion under CPLR 3212, the movant bears the initial burden of establishing "his entitlement to judgment as a matter of law by 'tendering sufficient evidence to demonstrate the absence of any material issues of fact'" from the case (Edwards v State of New York, 23 AD3d 710, 711 [3d Dept 2005], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986] [citations omitted]; see CPLR 3212[b]; Encarnacion v State of New York, 49 AD3d 1038 [3d Dept 2008]). "'Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action'" (Rivera v State of New York, 59 Misc 3d 1233 [Ct Cl, Hard, J., 2017], affd 34 NY3d 383 [2019], quoting Alvarez v Prospect Hosp., 68 NY2d at 324).

The elements of a cause of action for negligence are: (1) "a duty owed by the defendant to the [claimant], (2) breach thereof, and (3) injury approximately resulting therefrom" (Abbott v Johnson, 152 AD3d 730, 732 [2d Dept 2017]; see Klein v Catholic Health Sys. of Long Is., Inc., 231 AD3d 797,799 [2d Dept 2024]). Certainly, the State owed a duty to claimant, as it is well-settled that "[a]s a landowner, the State owes the same duty of care as that of a private individual: the duty to exercise reasonable care under the circumstance in maintaining its property in a safe condition" (Mesick v State of New York, 118 AD2d 214, 216-217 [3d Dept 1986]; see also Courtney v State of New York, 153 AD3d 780,781 [2d Dept 2017]).

From the onset, the record reflects that claimant was unsure as to what caused her to fall. "In a trip and fall case, a defendant may establish its prima facie entitlement to judgment as a matter of law by submitting evidence that the [claimant] cannot identify the source of his or her fall without resorting to speculation" (Zhan v City of New York, 199 AD3d 1045 [2d Dept 2021] [internal quotations omitted]). Here, claimant testified that the accident occurred on the stairs going up from the pool to the food court (see Aff. in Support, Exh. E at 30). Claimant was [*6]sitting at the pool watching her little brother Christopher, who has autism, making sure that he was not running away (see id. at 33). At the same time, claimant's other little brother, Donavan, was at the top of the stairs holding three cups of ice in his hand and he called her to help him because he was scared that he was going to fall (see id. at 30-34). Claimant walked up the stairs, grabbed the three cups of ice, and as she turned to walk down the stairs, she tripped over something and went flying down the stairs, landing on the bottom of steps (see id. at 31-32). Both she and her brother were in the middle of the stairs (see id. at 34). Claimant described the stairs as weird, wide, having no railing in the middle, only on the sides, and that she used the steps many times before (see id.). The steps were dry, and people frequently came out of the pool and went up the steps (see id. at 36). When asked as to what caused her fall, claimant testified that her "brother said that there was a piece of stuff out of place," but she "can't say for sure," and that neither she nor any of her family noticed the step out of place before (id. at 38). She did not see the step that her brother talked about and did not see the step that caused her to fall (see id. at 39, 42).

As for identifying the condition of the step that led to her fall, claimant was shown a photo of the steps that her mother, Ms. Danowsky, took on the day of the accident (see id. at 43; Exh. I). It is a photo of what appears to be three steps with a crack on the middle step (see id., Exh. I). Ms. Danowsky testified that she took a photo of the "top step" (id., Exh. L at 23) "[b]ecause it was the — the one in the middle that was cracked" (id. at 24). Donavan took Ms. Danowsky up the step and showed her the step where claimant flew (see id. at 23-25). When queried as to whether it was the step where she fell, claimant stated, "I'm assuming so, yes" (see id., Exh. E, at 43), "I don't really know for sure" (id.). Upon inquiry as to whether the steps appear to have a crack in the second step down, claimant stated "[i]t looks so to me . . . [t]hat's what it looks like to me" (id. at 44). Also, she was walking down the middle of the step and could not say for sure whether the crack shown in the picture was in the middle of the step (see id.). In addition, claimant could not say for sure whether she saw the second step from the top in the condition that was shown in the picture at any time prior to the accident (see id. at 45).

Presented with the same photograph of the steps, claimant's brother testified that he did not recall ever seeing the photo, that it looked like the stairs at the food court, but did not know whether it was a picture of the top or bottom steps (see id., Exh. K at 29). Mr. Paniagua, who at the time of the accident was a maintenance supervisor in charge of the Park cleaning staff, was also shown the photograph, but did not know whether it depicts the exterior staircase where the incident occurred (see id., Exh. H at 62-63). Ms. Rodriguez, the former Parks Director, was also shown the photograph but could not identify what was depicted there (see id., Exh. F at 41). Unquestionably, the photo taken by claimant's mother with respect to the condition of the step has limited evidentiary value, as no one else who was shown the photograph recognized what they were identifying in the photo.

Turning to notice, "[a] defendant who moves for summary judgment in a slip-and fall action has the initial burden of demonstrating that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" (DeLeon v Westhab, Inc., 60 AD3d 888, 888 [2d Dept 2009]; see Frazier v City of New York, 47 AD3d 757, 758 [2d Dept 2008]). Here, the record does not support actual notice to the State, as claimant did not complain and was not sure whether anyone complained about the step prior to her accident (see Aff. in Support, Exh. E at 39). Likewise, both her mother and brother testified that prior to the incident, they did not notify anyone at the Parks Department [*7]about any issues with the steps (see id., Exh. L at 17; Exh. K at 17); and her brother did not know if anyone reported cracks on the stairs (see id. Exh. K at 25). Neither Mr. Paniagua nor Ms. Rodriguez were aware of any prior complaints involving the specific staircase prior to September 3, 2022 (see id., Exh. H at 24; Exh. F at 22); and former lifeguard Michael Paniagua did not recall any previous complaints regarding incidents that took place at the exterior staircase between the pool and the concession area (see id., Exh. G at 24).

As for constructive notice, there is a consensus in the testimony, as well as the claimant's expert that claimant tripped and fell as she stepped down onto the second step from the top (see id., Exh. E at 38; Exh. K at 20, 22; Aff in Opp., Exh. J at 20). Claimant did not notice any defective condition of the staircase prior to or after her fall (see Aff. in Support, Exh. E at 38-39). Although the mother noticed cracks all over the steps before the incident (see id., Exh. L at 17), she took only one photo of three steps, purporting that there is a crack on the middle step (see id. at 24; Exh. I). The brother also testified that the steps were very cracked, including the second step and bottom step, but he did not notice any cracks before the accident, nor testify about any missing pieces on the step (see Aff in Support, Exh. K at 24-25). Claimant's experts conducted a site visit on March 26, 2024, about 18 months after the accident (see Aff in Opp., Exh. J ), noting a portion of exposed rebar on tread 1 (see id. at 20) and opining within a reasonable degree of certainty that "Chipped, Broken Cracked, Eroded Tread Surface & Exposed Rebar Likely Caused [claimant's] Accident" (id. at 19 [capitals in original]). As well, the experts offered opinions about multiple New York City and New York State Fire & Building Code violations with respect to the exterior staircase (see id. at 63).

Besides identifying cracks, no other witnesses testified about any missing pieces or an exposed rebar on that second step. Indeed, constructive notice can also be inferred from pictures depicting the defect taken closer in time to the alleged accident, along with testimony that the photos accurately represent the defect (see Amaral v Metro-North Commuter R.R. Co., 7 Misc 3d 1006[A] * 4 [Supreme Court, Bronx County 2005]; see also LaSalle v Junuis Realty, LLC, 23 Misc 3d 1121[A] * 2 [Supreme Court, Kings County 2009]). As discussed earlier in the decision, the sole photo taken by the mother is an unreliable portrayal of the condition of the staircase on the accident date. Absent a clear depiction of the stairs on the accident date, claimant's expert failed to prove that the structural or physical condition of the staircase was the same as its structural or physical condition on the date of the onsite inspection more than 18 months after the accident occurred (see Rui-Jiao Liu v City of White Plains, 95 AD3d 1192, 1194 [2d Dept 2012]; Gonzalez v State of New York, 60 AD3d 1193, 1194 [3d Dept 2009]).

Where the alleged defect is neither visible nor apparent, it cannot give rise to constructive notice (see Vasquez v Nealco Towers, LLC, 160 AD3d 496, 496 [1st Dept 2018]; Lance v Den-Lyn Realty Corp., 84 AD3d 470, 470 [1st Dept 2011]). Although claimant testified that she tripped on something and that her "brother said that there was a piece of stuff out of place" on the step (Aff in Support, Exh. E at 38), Donavan Malave solely described cracks on the steps (see id., Exh. K at 24). When asked whether he knew what caused his sister to fall he testified "I would assume the steps, but no, not really" (id. at 22). Similarly, Benigno Paniagua was not aware of any defects or problems with the exterior staircase where the incident occurred back in September 2022 (see id., Exh. H at 24). Significantly, Ms. Rodriguez testified that she was notified that either the last step or second to last step from the bottom was damaged and that there was a small round piece missing from the lip; however, the defect was not on the second step from the top (see id., Exh. F at 26-29).

General awareness of a dangerous condition is legally insufficient to constitute notice of the particular condition that caused claimant's fall (see Piacquadio v Recine Realty Corp. 84 NY2d 967, 967 [1994]; Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]). Rather, "[t]he law requires notice of the specific condition alleged at the specific location alleged" (Allen v Turyali Fast Food, Inc., 25 Misc 3d 1210 [A] * 7 [Supreme Court, Bronx County 2007]; Haynes v Estate of Goldman, 16 Misc 3d 1134 [A] * 15 [Supreme Court, Bronx County 2007]. Thus, Michael Paniagua's testimony that accidents occurred all the time at the pool area, and on the steps with kids, and that at least 10-15 accidents can happen in the summer season, is equally insufficient to support constructive notice (see Aff. in Support, Exh. G at 14-16). Without speculation, the record reflects that claimant, upon receiving a frantic call for help from her brother Donavan at the State Park, walked up to the top step of the exterior stairs between the pool and the food court, grabbed three cups of ice from him, and while balancing those cups, she tripped and fell on the steps as she returned to supervise her autistic brother who she was watching. Nothing in claimant's testimony reveals that middle handrails would have prevented her from falling, especially since her hands were occupied holding three cups of ice and "it happened so fast" (Exh. E at 37-38; see, e.g., Scholar v Citadel Estates, LLC, 177 AD3d 440, 441-442 [1st Dept 2019]).

For the reasons mentioned above, the Court finds that the State has sustained its burden of making a prima facie showing that a defect in the staircase was not the proximate cause of claimant's fall; and that it neither created the hazardous condition on the exterior staircase nor had actual of constructive notice of its existence for a sufficient length of time to discover and remedy said condition (see Sloane v Costco Wholesale Corp., 49 AD3d 522 [2d Dept 2008]). The Court further finds that claimant has failed to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact to require a trial of this action. Claimant's expert did not corroborate a causal connection between claimant's fall and the defects in the staircase alleged to have existed at the time of her fall (see Telfeyan v City of New York. 40 AD3d 372, 373 [1st Dept 2007]). Equally unavailing, claimant's speculative testimony and failure to identify what caused her to fall was fatal to her negligence cause of action, and such failure cannot be cured by her expert's opinion that defects in the staircase violated multiple State and City Building & Fire Codes (see Daniarov v New York City Tr. Auth., 62 AD3d 480 [1st Dept 2009]).

Accordingly, it is ORDERED that Motion No. M-102433 for summary judgment dismissal is granted, and Claim No. 139687 is hereby dismissed.

March 6, 2026

New York, New York

JAVIER E. VARGAS

Judge of the Court of Claims