COVINGTON v. STATE

Reset A A Font size: Print

Supreme Court, Appellate Division, Third Department, New York.

John COVINGTON, Appellant, v. STATE of New York, Respondent.

Decided: September 25, 2008

Before:  CARDONA, P.J., CARPINELLO, ROSE, KANE and KAVANAGH, JJ. John Covington, Auburn, appellant pro se. Andrew M. Cuomo, Attorney General, Albany (Kate H. Nepveu of counsel), for respondent.

Appeal from a judgment of the Court of Claims (Collins, J.), entered July 20, 2007, upon a dismissal of the claim at the close of proof.

Claimant, an inmate at Great Meadow Correctional Facility in Washington County, commenced this action in September 2005 claiming damages he allegedly sustained as the result of a mouse bite on his left big toe.   Following the close of proof in a trial on the matter, the Court of Claims granted defendant's motion to dismiss.   Claimant appeals and we affirm.

 While defendant is not an insurer against every injury that might occur on its property, it bears a duty to maintain its property in a reasonably safe condition in view of all of the circumstances, including the likelihood and seriousness of a potential injury and the burden of avoiding such risk (see Preston v. State of New York, 59 N.Y.2d 997, 998, 466 N.Y.S.2d 952, 453 N.E.2d 1241 [1983];  Bernard v. State of New York, 34 A.D.3d 1065, 1067, 824 N.Y.S.2d 481 [2006];  Bowers v. State of New York, 241 A.D.2d 760, 760, 660 N.Y.S.2d 751 [1997];  Condon v. State of New York, 193 A.D.2d 874, 874-875, 597 N.Y.S.2d 531 [1993] ).   In contrast to claimant's claims that the cell block in which he was housed was infested with rodents, defendant presented the testimony of the plant superintendent of Great Meadow, who explained that the facility contracted with an outside exterminator who visited the facility weekly and treated all of the common areas, as well as individual cells that had been reported by inmates to have had problems.   In addition, defendant submitted service reports from the pest control company from January 2005 and February 2005, just prior to claimant's alleged injury, describing the extermination procedures employed, which included the placement of glue boards in claimant's cell block for the purpose of catching mice.   Thus, we find ample evidence in the record to support the Court of Claims' determination that claimant failed to prove that defendant was negligent (see Bowers v. State of New York, 241 A.D.2d at 761, 660 N.Y.S.2d 751).

We have examined claimant's remaining claims and find them to be without merit.

ORDERED that the judgment is affirmed, without costs.

ROSE, J.

CARDONA, P.J., CARPINELLO, KANE and KAVANAGH, JJ., concur.

Copied to clipboard