McCree v City Univ. of N.Y.

[*1] McCree v City Univ. of N.Y. 2013 NY Slip Op 51710(U) Decided on October 10, 2013 Ct Cl Marin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 10, 2013
Ct Cl

Ethel McCree, Claimant,

against

City University of New York, Defendant.



118502



For Claimant:

Law Office of Jeffrey S. Kimmel

By: Paul Cagno, Esq.

For Defendant:

Eric T. Schneiderman, Attorney General

By: John M. Hunter, AAG

Alan C. Marin, J.

This is the decision following the liability trial of the claim of Ethel McCree, who tripped and fell on the sidewalk outside of the John Jay College of Criminal Justice, which is a senior college of the City University of New York. John Jay College is located in Manhattan on Tenth Avenue and 59th Street. Ms. McCree is employed by Roosevelt Hospital, which is across 59th Street from the college on the same side of Tenth Avenue.

It was the afternoon of March 30, 2010, and McCree, whose job entailed a late schedule, was on her way to work. Driving down from the Bronx, she found a parking place a short [*2]distance from Roosevelt. Claimant walked to the hospital and made it to the lobby before realizing that she had forgotten her ID.

McCree made her way back to her car, retrieved the ID and began to return to the hospital, but, "I never got there; I tripped." Claimant testified at trial that she did not see what caused her to trip and fall until she was lying there in pain and noticed that a concrete frame around a metal grate against the wall of the college's South Hall building was higher than the sidewalk proper.[FN1] Her deposition testimony on what caused her to fall, elicited on cross-examination, was less certain.

Claimant recalled that it was "Approximately between two and three [p.m.]," the weather was sunny and that she was wearing her Roosevelt Hospital uniform and Timberland boots.McCree said there was no debris in the area, and she was walking at a normal pace. She testified that the height differential between the sidewalk and the concrete strip of frame just before the metal grate was "An inch, around."

Elmer Phelon, the facilities manager at John Jay, testified at trial, and he acknowledged, that it was the college's responsibility to keep the subject grate (and two other such grates) clear of snow and debris. Mr. Phelon described them as sidewalk vault grates, which extend fairly deep below their grated coverings. There were five work orders to "check & clean" the sidewalk vaults during the period from October of 2009 through mid-March of 2010. Mr. Phelon testified that such work can prevent fires caused by debris in the vault, noting that "someone at the bus stop flicks a cigarette down, and we've had fires."

* * *

The State has a duty to maintain its premises in a safe condition, but that does not mean it is an insurer; if an accident occurs, negligence and causation must be shown in order to implicate liability (Clairmont v State of New York, 277 AD2d 767 [3d Dept 2000], lv denied 96 NY2d 704 [2001]). Claimant is charged with proving by a fair preponderance of the credible evidence that her fall was proximately caused by a dangerous condition or defect, which the defendant either created or of which it had actual or constructive notice (Gordon v American Museum of Natural History, 67 NY2d 836 [1986]; Trincere v County of Suffolk, 90 NY2d 976, 978 [1997]).

Given the various work orders for these sidewalk vaults, including one just weeks before McCree's accident, and Phelon's testimony that he walked past such location many times, the defendant knew or should have known of the condition of the grate and the area around it. Phelon suggested that he did not have actual knowledge - - first testifying that he never noticed any mis-leveling that was of a "substantial nature," then agreeing that he had never noticed any mis-leveling that was "insubstantial" as well.

The Court of Appeals has explained that there is no rule that a particular minimum height differential must be satisfied in order for a case like Ms. McCree's to go forward. Rather, it depends on the specific facts and circumstances of each case, "including the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance' [*3]of the injury . . ." (Trincere v County of Suffolk, 90 NY2d 976, 978 [1997]).

Phelon testified that he went out to the site on June 21, 2013, just weeks before trial, and while there had been some filler added post-accident as a precautionary measure, he was able to gauge the differential between the sidewalk and concrete frame at between one-half and three-quarters of an inch. There was no evidence that the frame was originally level with the sidewalk and that the sidewalk had settled, the frame had been disturbed or things had otherwise evolved to the March, 2010 condition.

In addition, there is no issue here that this grate was not securely fixed in place as in Page v State of New York, UID No. 2005-028-002 (Ct Cl, Sise, J., Feb. 2, 2005) and Garcia v State of New York, UID No. 2001-007-569 (Ct Cl, Bell, J., Oct. 1, 2001]. In fact, Phelon testified that the only repair or maintenance work done on the grate itself took place "several years ago" to weld the grate down so that "it wouldn't be picked up again, and be left open as a fall hazard." This occurred after two unknown persons lifted the grate, and went into the vault to retrieve change that had been dropped there. It was not clear if such repair was prior to claimant's fall.

This Court concludes that claimant has failed to satisfy her burden of proving that defendant had notice of a dangerous condition that was the proximate cause of her injury. This was not a hole in the sidewalk pavement, or more pointedly, a pavement slab that had slipped out of alignment, creating a differential. Some peeling of the concrete, known as spalling had occurred, but such was on the surface of the concrete frame and minimal; moreover, it is not clear if the X marking the spot of McCree's fall is adjacent to any spalling (see the photos that are claimant's exhibits 2 and 4).

With respect to the slightly elevated concrete frame, which along with the vault is anchored to the foundation wall of South Hall, we heard no evidence that the differential violated any applicable standard.[FN2] Furthermore, there were no prior incidents or complaints about the site as a tripping hazard. The third and final witness at trial was Ms. Rabiyyah Williams, the college's administrative coordinator, for whom records access was not customarily within her duties (such employee was on vacation). Ms. Williams searched the records back two years from March of 2010 and found no complaints or incident reports for the subject area.

Phelon's testimony of a differential of one-half to three-quarters of an inch is more credible than McCree's "around" an inch. The Trincere court rejected the use of a specific height differential as a per se tripping hazard, but considering the differential here as part of the mix of factors, Phelon's figure is a better fit with the little over a half inch between paving slabs in Trincere, the half an inch in Schiller v St. Francis Hosp., 108 AD3d 758 (2d Dept 2013), andthe three-quarters of an inch differential in Lopez v New York City Housing Auth., 245 AD2d 273 (2d Dept 1997), in each of which defendant prevailed, as contrasted with a case in which this Court found liability where the change in levels amounted to two and one-half inches (granted, on the high side of these kinds of cases) (Locario v State of New York, 29 Misc 3d 1210 (A) [2010], affd 90 AD3d 547 [1st Dept 2011]). [*4]

Claimant has not proven this was a dangerous condition or defect, but in any event, proximate cause is questionable because of a number of inconsistencies in Ms. McCree's testimony. In claimant's deposition, she mentioned two differentials: between the sidewalk and frame as well as one between the frame and grate - - and testified that she was unsure which had caused her to trip. At trial, Ms. McCree testified that she realized what had caused her to trip when she was on the ground right afterwards and looked around, but at her deposition, she had said "Hours later, because I came out [of] the ER, and I had to get my car, which had a ticket. And, um, that is when I looked. I said, oh, that is how I fell." Claimant also testified that she did not see the subject condition when she first walked toward the hospital (without her ID) because at that time she had walked closer to the curb, away from the building and the grate and its frame.[FN3]

* * *

In view of the foregoing, the claim of Ethel McCree (No. 118502) is dismissed. Let judgment be entered accordingly.

New York, New York

October 10, 2013

ALAN C. MARIN

Judge of the Court of Claims Footnotes

Footnote 1: See the "X" that Ms. McCree marked on the photograph that is claimant's exhibit 4. The "X" was placed during McCree's June 14, 2011 deposition; at trial, her testimony reiterated that that was where she had fallen. Claimant's exhibit 4 is in black and white; claimant's exhibit 5 is the same photograph, in color and without any marking.

Footnote 2: See for example sections 19-152 (4) & (6) and 19-147 (d) of the New York City Administrative Code, but their applicability, or that of any other standard, was not developed at trial.

Footnote 3: Note that the fact that a condition is open and obvious will not trump liability, but can result in claimant bearing some portion of the liability. Being open and obvious relieves a premises owner of the duty to warn, but a dangerous condition in any event must be remedied or shielded from public intrusion. See for example, Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69 (1st Dept 2004).