Opinion
# 2016-040-110 Claim No. 122850
12-23-2016
In the Matter of the Claim of CHRISTOPHER HANSEN v. THE STATE OF NEW YORK
MILLS & EDWARDS, LLP By: Donte Mills, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Synopsis
Court finds that Claimant failed to establish Defendant was liable for his slip and fall on a wet floor in his dormitory at Franklin CF.
Case information
| UID: | 2016-040-110 |
| Claimant(s): | In the Matter of the Claim of CHRISTOPHER HANSEN |
| Claimant short name: | HANSEN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 122850 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | MILLS & EDWARDS, LLP By: Donte Mills, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | December 23, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, Christopher Hansen, failed to establish by a preponderance of the credible evidence that the State of New York was negligent in connection with injuries he sustained on February 13, 2013 in a slip and fall accident at Franklin Correctional Facility (hereinafter, "Franklin").
A bifurcated trial, addressing liability issues only, was held on June 7-8, 2016 at the Court of Claims in Albany, New York. There were five witnesses: Claimant; Inmates Joseph Bennett, and Kenneth B. Whitney, Jr.; Correction Officer (hereinafter, "CO") Phillip Soulia, who has worked at Franklin since 2006; and CO Scott Premo, who has worked at Franklin for 27 years. Each of the COs is an employee of the Department of Corrections and Community Supervision (hereinafter, "DOCCS"). Thereafter, the parties were granted additional time to order a transcript and then submit post-trial memoranda.
FACTS
Mr. Bennett described the sleeping area of the J-1 dorm at Franklin as being shaped like a big "H," with two long rows, one at the back and one at the front of the dormitory, that were connected by a hallway that ran down the middle of the dorm. He estimated the middle hall to be 15' long and 10' wide. He further said that CO Soulia's desk was in the front of the dorm, next to the main entrance, and Claimant's cube was along the back wall of the dorm, one or two cubes away from the middle hallway. Claimant similarly testified that his cube faced the front door of the dormitory, but reckoned the distance to be only about 10', and also said that the officer's station was next to the door.
A few minutes later, however, Mr. Bennett estimated that the distance from Mr. Hansen's cube to CO Soulia's desk to be greater, at a minimum from the witness stand to the back wall of the courtroom.
Mr. Hansen said that he was returning to his cube from the shower on the morning of February 13, 2013. He walked out of the shower area, through the day room, then through the doorway into the sleeping area, and straight ahead some seven feet towards his cube. Claimant said that, when he was about three feet in front of his cube, he lost his footing on a wet floor, slipped, went up in the air, and fell onto his buttocks, resulting in excruciating pain.
Mr. Whitney gave detailed testimony that he witnessed Claimant slip and fall on a wet floor, but said that the accident occurred elsewhere, in the day room, rather than the sleeping area. Upon further questioning, however, he expressed less confidence in his account. Only after having his recollection refreshed, did he then place Mr. Hansen in the sleeping area when the accident occurred. Mr. Bennett gave yet a third account of the accident. He initially stated that Claimant was in bed as he passed by mopping the floor shortly before the accident. He knew this because Mr. Bennett habitually checked inmates' bunks to make sure he did not hit the edges of their cubes with his mop and, thereby, disturb their sleep. According to Mr. Bennett, Mr. Hansen fell after taking two steps out from his cube. Like Mr. Whitney, later Mr. Bennett amended his testimony. He said that he had "assumed" Claimant had stepped out of his cube but that, in any event, Mr. Hansen fell in front of his cube (Tr., pp. 243-244).
Mr. Hansen also testified that only some of the lights were on in the sleeping area, adding that "in the middle, they have like, nightlights, but there's - even if they're on, you can't see nothing. It's just dark … I didn't see nothing on. I mean, I couldn't tell you if [the nightlights were] on, but I know it was just dim in there, it was dark. I couldn't see nothing" (Tr., p. 19). Later, he agreed though that there were windows on both sides of the dormitory and conceded that they also let in "some" light (Tr., p. 40).
Mr. Hansen further testified that his right leg is amputated below the knee, and he had worn a prosthesis for 25 years prior to the accident, but that he had no problem walking to the shower that morning. At his examination before trial (hereinafter, "EBT"), conducted on March 18, 2014, Mr. Hansen did say that he had both a wheelchair, for longer trips, and a cane, which he used around the dormitory, depending upon how he felt, but that he did not use his cane on the day of the accident. CO Soulia, likewise, did not recall Claimant having any difficulty walking, or that he used any device to assist him. Mr. Hansen testified, at trial, that it was his left foot that slipped (Tr., p. 24). He did not recall stating to the contrary, at his EBT, that it was his right, prosthetic leg, that slipped (Tr., pp. 37-38, 128). At trial, he suggested that the answer he gave at his EBT might have been a "mistake" (Tr., p. 39).
Mr. Hansen did not observe anyone mopping the floor, either when he went to shower, or upon his return (Tr., pp. 23, 36, 127). He said that the floor in the sleeping area was dry when he left to take his shower, and that there were no wet floor signs or other warnings posted to alert him that the floor was wet upon his return from his shower (Tr., pp. 23, 131). He did not notice any water on the floor, or see any puddles, before he fell, but he could feel that the floor was wet after he was on the ground (Tr., pp. 19, 40-41).
Mr. Hansen also said that he himself, in the past, had been a porter responsible for mopping floors (Tr., p. 20). At trial, however, he was unable to say if the amount of water he encountered was the normal amount one might expect after the floor was mopped (Tr., pp. 40-41). He also denied telling the sergeant who interviewed him in connection with a grievance he filed after his fall that "there was not excessive water on the floor as stated in his grievance, [but rather, it was] 'just like when you mop it regular' " (Ex. D, ¶ 1; see Tr., pp. 42-43, 47).
Mr. Bennett was the inmate porter that morning, a job he had held for four or five months at that time. He explained that his practice was first to mop the back row, where Claimant's cube was, next he would mop the middle hallway, then he would dry mop those areas before changing the water in his bucket, and finally, he would mop the front row before moving out the doorway and into the day room. Mr. Bennett's equipment consisted of a long-handled mop and a yellow bucket that had printed on the outside "a red triangle that shows a person slipping, like slippery when wet … pretty basic, just a common symbol" (Tr., p. 227; see pp. 226-227). He also said that he forgot to put down wet floor signs that morning (see discussion below; Tr., pp. 210, 214).
Mr. Bennett said that he remembered the event, testifying that he had just finished mopping the area where Claimant fell about 30 seconds before the accident, but had not yet had time to dry mop the area (Tr., pp. 210, 214, 221-222, 228). He said that he was towards the front of the dormitory, by the officer's desk, when he heard Claimant fall (Tr., p. 226). Mr. Whitney saw an inmate porter mopping at the time Claimant fell, but, likewise, saw no wet floor signs.
Of course, as noted in footnote 2 above, in Mr. Whitney's initial account he saw the porter mopping in the day room, not the sleeping area where Claimant said that he fell.
After Claimant fell, Mr. Whitney went to alert CO Soulia, who was getting cleaning supplies from a storage area that separates the J-1 and J-2 dormitories. In 2013, CO Soulia was the regular officer on the 7:00 a.m. to 3:00 p.m. shift in the J-1 dormitory, responsible for the supervision of approximately 60 inmates, including the inmate porters. He also said that his desk was just inside the front entrance to the sleeping area, and next to a window that also permitted him to look into the day room. However, CO Soulia was not stationed at the desk at all times. Rather, he made rounds of the entire dormitory. He was not at the desk either when Claimant went to shower, or when he fell upon his return.
Mr. Hansen said that, when CO Soulia arrived, he cursed to himself and told Mr. Bennett to put down wet floor signs before the sergeant arrived (Tr., pp. 28-30). Mr. Bennett gave inconsistent testimony as to whether or not CO Soulia spoke directly to him, and whether the officer directed him, or another inmate, to put a wet floor sign in place after Claimant's accident, but said, in any event, that one was put on the floor before the medical staff arrived (Tr., pp. 214-216, 231-232).
CO Soulia testified to the contrary, that he saw a wet floor sign in place when he entered the sleeping area (Tr., pp. 144-145). Although he could not recall whether or not the floor actually was wet, he agreed that it did appear that Mr. Hansen slipped on a wet floor just after Mr. Bennett had finished mopping (Tr., pp. 146, 162, 166-167). CO Soulia stated that he spoke to Claimant, CO Premo, who is now, and was then, Franklin's fire and safety officer, and a sergeant who arrived after the accident. He said that he did not speak to any of the inmates about how the accident occurred, and he specifically denied that he told Mr. Bennett to put out wet floor signs after the accident (Tr., pp. 164, 169). Claimant then was removed for medical attention.
Several witnesses described a DOCCS' protocol which requires that inmate porters sweep the floors, then put down wet floor signs before commencing to wet mop, next, dry mop the floors to remove any excess moisture, and, finally, remove the signs after the floors had dried. CO Soulia also said that the floors usually were mopped at least twice during his 7 a.m. to 3 p.m. shift. Mr. Bennett testified that it could be as often as three or four times per day in wintertime. While he said that there was no prescribed schedule, Mr. Bennett said it was normal for him to mop in the morning because most other inmates had left the dormitory by then to go to their program activities.
CO Soulia said, both at trial and at his EBT conducted on June 13, 2014, that he was responsible for enforcing the wet floor sign requirement and that inmate porters usually mop when he is present (Tr., pp. 96, 98, 155-157). Mr. Whitney stated, however, that, whenever he was present in the dormitory, the protocol was widely ignored so that wet floor signs were only put down if a CO was present (Tr., pp. 56-59). Mr. Bennett also said that COs varied in the degree to which they insisted upon the use of wet floor signs (Tr., pp. 208-211). When apprised of Mr. Whitney's assertion, however, CO Soulia testified that, while he could not speak to what might happen on other shifts, wet floor signs were put out whenever he was working (Tr., pp. 158-159).
In any event, Mr. Bennett agreed that he knew the protocol and said that, when working in the sleeping area, one wet floor sign was to be placed at the entrance to the sleeping area and another in the area where he actually was engaged in mopping (Tr., pp. 227-229). He also estimated that he put down wet floor signs about 90% of the time, but forgot to do so on the day of the accident (Tr., pp. 210, 214), adding that "I had all intentions of placing the sign, because the signs were right outside the door in the area I had just mopped … I knew [the accident] was [on account of] my negligence by not putting the wet floor sign up" (Tr., pp. 210, 233). He estimated that the floors usually dried within five or ten minutes (Tr., p. 209).
CO Soulia stated, however, that the wet floor signs were kept in the storage closet where he was at the time Claimant fell (Tr., p. 169).
Mr. Bennett said that he did not know CO Premo, did not speak with him after the accident, and did not recall making the statement attributed to him in the officer's memo that "while he did not put a wet floor sign up before mopping[,] there was one already up that some[one] else put there" (Ex. A, ¶ 2; Tr., pp. 216, 232, 238). Mr. Bennett said that he knew "for a fact" that there was no wet floor sign at the time of the accident because he was the only porter in the J-1 dormitory that morning and he mopped the floor, and suggested that any comment in the memo to the contrary might refer to the sign put down after the accident by another inmate upon CO Soulia's order (Tr., p. 216). At trial, however, CO Premo stated that Mr. Bennett did tell him that someone else already had put down a wet floor sign when he began to mop the floor that day (Tr., p. 195).
Paragraph 2 of Exhibit A was not admitted for the truth of the matters asserted therein, but, rather, to evidence a prior inconsistent statement by Mr. Bennett (Tr., pp. 236-237).
With respect to lighting, CO Soulia explained that there are four rows of florescent lights in the sleeping area of the J-1 dormitory (Tr., p. 146). He and CO Premo each said that there is no DOCCS' directive mandating that all lights be left on in the dorm area (Tr., pp. 171, 187). In fact, the practice at Franklin has been to turn on only two rows of lights during the day in order to accommodate inmates who might wish to sleep (Tr., pp. 148, 159-161, 187-188). Such was the case on February 13, 2013 (Tr., p. 148). The COs each further stated that those lights, together with natural light from the windows all around the exterior wall of the dorm, provide adequate lighting (Tr., pp. 148-149, 189-190). CO Soulia testified that, during the four years he worked in the J-1 dormitory, he neither had any difficulty, himself, seeing in the sleeping area, nor had he received any complaints about the lighting (Tr., pp. 149, 171). Prior to his accident, Claimant never filed a grievance about the dim lighting condition in the dorm area (Tr., p. 40).LAW
"[W]hen the State acts in a proprietary capacity as a landlord, it is subject to the same principles of tort law as is a private landlord" (Miller v State of New York, 62 NY2d 506, 511 [1984]). Thus, the State does have a common-law duty to maintain its facilities "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 constituting the measure of liability (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 Galindo v Town of Clarkstown, 2 NY3d 633, 636 [2004]; Preston v State of New York, 59 NY2d 997, 998 [1983]). That duty extends to the State's institutions, including its correctional facilities (see Heliodore v State of New York, 305 AD2d 708, 709 [3d Dept 2003]; Bowers v State of New York, 241 AD2d 760, 760 [3d Dept 1997]).
To establish a prima facie case of negligence in a slip and fall action, a claimant must demonstrate by a preponderance of the credible evidence that: (1) Defendant owed Claimant a duty of care; (2) a dangerous condition existed that constituted a breach of that duty; (3) Defendant either created the dangerous condition or had actual or constructive notice thereof and failed to alleviate the condition within a reasonable time; and (4) such condition was a substantial factor in the events that caused the injury suffered by Claimant (see Solomon v City of New York, 66 NY2d 1026, 1027 [1985]; Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Keating v Town of Burke, 86 AD3d 660, 660-661 [3d Dept 2011]; Baez v Jovin III, LLC, 41 AD3d 751, 752 [2d Dept 2007]; DeLuke v City of Albany, 27 AD3d 925, 926 [3d Dept 2006]). "In determining whether claimant has carried [his or] her burden, the Court, as fact-finder, must weigh the evidence presented after assessing witness credibility and resolving factual disputes" (Rice v State of New York, UID No. 2006-032-505 [Ct Cl, Hard, J., June 19, 2006]; see 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]).
The existence of a dangerous condition is generally a question of fact that may hinge upon the facts and circumstances peculiar to each case (Moons v Wade Lupe Constr. Co., Inc., 24 AD3d 1005, 1006 [3d Dept 2005]). Moreover, the State is not an insurer of the safety of its inmates, and negligence cannot be inferred solely from the occurrence of an accident (see Killeen v State of New York, 66 NY2d 850, 851 [1985]; Muhammad v State of New York, 15 AD3d 807, 808 [3d Dept 2005]; Condon v State of New York, 193 AD2d 874 [3d Dept 1993]). Finally, a claimant has the duty to use reasonable care to observe his or her surroundings and to see what is there to be seen, and to avoid accidents (Weigand v United Traction Co., 221 NY 39, 42 [1917]; Martinez v State of New York, 225 AD2d 877, 878 [3d Dept 1996]).
DISCUSSION
The Court has considered all the evidence, including a review of the exhibits and listening
to the witnesses testify and observing their demeanor as they did so. CO Soulia and CO Premo offered generally sincere and credible testimony. The demeanor of Claimant, Mr. Whitney, and Mr. Bennett, on the other hand, as well as their testimony, each of which was marked by inconsistencies, was such that the Court is unable to credit portions of their testimony.
For example, Claimant failed to provide a consistent narrative between his EBT and his trial testimony as to one of the most elementary facts in his Claim, namely which of his legs slipped on the wet floor. The Court finds it incredible that he would make a "mistake" about whether it was his biological, left foot that slipped, or his prosthetic, right foot. His credibility further was undermined in the Court's mind by a note, contained in his medical records, which records his threat to stage a fall, made to medical staff about six weeks before his accident in connection with a dispute about the condition of his prosthesis (Ex. G [health providers progress note, dated December 27, 2012]). The Court declines to credit most of Mr. Whitney's testimony, which initially concerned a fall in the day room, rather than the dorm area. In fact, his description was sufficiently vivid in detail that the Court questions if he might have been remembering another incident altogether. In any event, he later became less confident in his recollections before he finally was able to place Mr. Hansen's fall as having occurred in the dorm area, but only after having had his recollection refreshed. As for Mr. Bennett, he testified at trial that he would lie to prison investigators in order to protect himself (Tr., p. 240). The Court takes cold comfort from his subsequent declaration that he would not lie at trial because he had nothing to lose. His credibility was further undermined when he stated that he tried to "forget about everybody" from his time in prison, yet returned a call from Claimant's counsel "within hours" (Tr., pp. 225, 241; see pp. 242-243). The Court finds that inconsistency to be both jarring and difficult to reconcile.
The objection of Claimant's counsel to the admission of Exhibit G is unavailing and his reliance on Benavides v City of New York, 115 AD3d 518 (1st Dept 2014), is misplaced. There, the First Department stated that a hearsay statement contained in a plaintiff's medical record could be received into evidence under the business records exception if either, it was germane to the diagnosis and treatment of the patient's injuries, or if it constituted an admission with evidence to connect the party to the entry (id., at 519). In Benavides, the Court determined that the statement was not germane to treatment and it could not be characterized as an admission because it was unclear whether the patient, or a police officer, was the source of the information recorded. Here, by contrast, this certified business record of DOCCS (see Ex. G, unnumbered, p. 2) constitutes an admission clearly attributable to Claimant. The progress note states that Mr. Hansen is the patient, and the entry dated December 27, 2012, at 0745, recites, in its entirety, that the patient was "alert [and] oriented. Became quite upset while Dr. Medved began interviewing him. He was verbally assaultive [and] demeaning[.] Focused on his prosthesis. We attempted to explain the procedure to obtain [and/or] repair prosthesis [and] he lost it. We exited the room. He made threats that he would deliberately fall [and] then we would be accountable" (id. unnumbered, p. 1). To the Court's mind, it is unambiguous that references to "he" and "his" in the entry are to Claimant and that the threats to stage an accident can only be attributed to Mr. Hansen. Moreover, the references to "we" in the entry strongly suggest that the informant who recorded the information was an eyewitness to the statements attributed to Claimant.
The Court finds that Claimant failed to meet his burden and did not establish by a preponderance of the credible evidence that Defendant was negligent in connection with his accident.
The Court does find that the State had a duty to maintain its facilities in a reasonably safe condition. For the following reasons, however, the Court determines that Claimant failed to establish that a dangerous condition existed on the date of his accident.
While the Court remains troubled by the three different initial accounts offered, it finds, by a bare preponderance of the evidence, that Claimant did fall in the area near his cube. It further finds that Mr. Hansen slipped on a wet floor that had just been mopped by Mr. Bennett.
However, the Court also concludes that wet floor signs were in place at the time of the accident, crediting the testimony of CO Soulia that he saw them when he arrived at the scene. The Court also credits CO Premo's testimony that Mr. Bennett told him that someone else had placed them before he began to mop, and it rejects Mr. Bennett's inconsistent testimony to the contrary as unpersuasive. Claimant's "mistake" about which of his legs slipped, furthermore, causes the Court to wonder if he, likewise, is confused about whether or not he saw a wet floor sign. Whether Mr. Bennett himself placed the signs, or they already were there when he began to work is less clear, but of little importance. What is clear is that the wet floor signs were in place when Claimant fell.
The Court notes that nothing in the record suggests that the signs were placed during the brief time it took Mr. Whitney to alert CO Soulia that Mr. Hansen had fallen ("only a few seconds" according to CO Soulia) (Tr., pp. 164-165).
As for Mr. Bennett's assertion that enforcement of the wet floor sign requirement varied by CO, but he personally placed wet floor signs 90% of the time, the Court gives it little credence. Mr. Bennett did not impress the Court as being so punctilious in his habits that he could be counted upon to adhere so faithfully to a rule he declared was often observed only in the breach. Rather, Mr. Bennett's assertion that he placed wet floor signs 90% of the time suggests, to the Court's mind, that the practice of placing such signs was, in fact, widely adhered to at Franklin. Moreover, the Court was impressed with CO Soulia's candid and forthright statement that, while he could not speak for others, the wet floor signs were put in place whenever he was on duty. Thus, the Court concludes that, as per CO Soulia's practice, the DOCCS' protocol was observed and wet floor signs were in place on February 13, 2013.
Claimant also failed to establish that an excessive amount of water was on the ground. Mr. Hansen said that he did not notice any water or puddles before he fell. That is consistent with the statement attributed to Mr. Hansen in Sergeant Bruce's memorandum, which the Court credits, that the amount of water was not excessive, but, rather, the amount one might expect after a regular mopping had occurred (see Ex. D, ¶ 1). Claimant's denial that he made that statement, by contrast, is not credible. His inability (or unwillingness) at trial to characterize the amount of water on the ground, even though Mr. Hansen himself had been an inmate porter and mopped floors on other occasions, likewise, is not credible. On the other hand, CO Soulia candidly and forthrightly testified that he could not recall whether or not the floor was wet, but he agreed Claimant must have slipped on a wet floor. Even Mr. Bennett related that the floors dried within five or ten minutes because the mop already was wrung out so that "it's not like we saturated the floor with mop water" (Tr., p. 209). The Court concludes that there was not an excessive amount of water on the ground, but only the usual amount to be expected after mopping. The presence of a normal amount of water does not establish a lack of reasonable care on the part of Defendant (Janczylik v State of New York, 126 AD3d 1485, 1486 [4th Dept 2015]; Seaman v State of New York, 45 AD3d 1126, 1127 [3d Dept 2007]).
Although he also said that the floor might have been "a little bit wetter that day" because it was mid-February (Tr., p. 209). --------
For all of the foregoing reasons, the Court finds that Claimant failed to establish that there were puddles, standing water, or any significant or inordinate accumulation of water present on the dormitory floor when he fell such as to constitute a dangerous condition.
Likewise, Claimant failed to establish that dim lighting constituted a dangerous condition, or contributed in any way to his fall. The Court dismisses Mr. Hansen's statement that it was so dark that he could not see anything as bald hyperbole. Far more persuasive was the testimony of the COs that the alternating rows of lights, together with the natural light provided by the windows, was adequate to permit people to navigate safely within the dormitory. Mr. Hansen himself later conceded that the windows let in "some" light. He did not indicate that he had any difficulty leaving the dorm area to take his shower. Mr. Bennett did not indicate that the room was so murky as to impede his mopping operations. CO Soulia testified that he neither had any problem seeing in the dormitory, nor had he ever received any complaints about the amount of light in the dormitory.
Having concluded that Claimant failed to establish the existence of a dangerous condition, the Court further finds that Claimant failed to establish that Defendant breached its duty to maintain its premises in a reasonably safe condition under the prevailing circumstances.
As no breach of Defendant's duty has been established, it is unnecessary to resolve questions concerning notice and causation.
For all the foregoing reasons, Claimant failed to establish his Claim by a preponderance of the credible evidence and the Claim is dismissed.
All motions and cross-motions are denied as moot. All objections upon which the Court reserved determination during trial, and not otherwise addressed herein, are now overruled.
The Chief Clerk is directed to enter judgment accordingly.
December 23, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
Counsel's further assertion that the statements cannot be deemed an admission because they were made prior to the accident, likewise, is without merit. "As a general rule, any declaration or conduct of a party which is inconsistent with the party's position at trial may be given in evidence against the party as an admission" (Prince, Richardson on Evidence §8-201, at 510 [Farrell 11th ed. 1995]). Moreover, "the admissions by a party of any fact material to the issue are always competent evidence against him [or her], wherever , whenever[ , ] or to whomsoever made
" (Reed v McCord, 160 NY 330, 341 [1899] [emphasis supplied]; see People v Collins, 301 AD2d 452 [1st Dept 2003], lv denied 1 NY3d 570 [2003] [statement made by defendant two days before incident properly received as admission inconsistent with defendant's position at trial]).