Manirampa v City Univ. of N.Y.

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[*1] Manirampa v City Univ. of N.Y. 2018 NY Slip Op 51984(U) Decided on December 17, 2018 Court Of Claims Soto, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 17, 2018
Court of Claims

Antoinette Manirampa, as Administrator of the Estate of Kevin N. Manirampa, Decedent, and Antoinette Manirampa, Individually, Claimant,

against

The City University of New York and Baruch College

[FN1], Defendant.

126366



For Claimant: Law Office of Michael Wiseberg, P.C. (By: Michael Wiseberg, Esq.)

For Defendant: Hon. Barbara D. Underwood, Attorney General of the State of New York (By: Edward J. Curtis, Jr., Assistant Attorney General)
Faviola A. Soto, J.

This negligence case involves the tragic end to Kevin Manirampa's ("KM") life.[FN2] Around three o'clock in the afternoon of May 19, 2014, KM's lifeless body was found lying on the fourth floor parapet of Baruch's Lawrence and Eris Field Building ("Field Building") at 17 Lexington Avenue in New York County. A follow up investigation revealed that KM exited the building from a classroom window on the thirteenth floor. Since no one other than the deceased witnessed the incident, the question of how KM's body came to depart from the window remains a mystery that forms the central factual dispute in this case. Claimant alleges that defendant negligently [*2]maintained their windows causing KM to fall and that he did not cause his own death. Defendant, on the other hand, contends that KM forced the window open and jumped to his death and that it did not reasonably foresee such an event.

A trial on the issue of liability was held on October 22, 2018. Following trial, each party submitted a memorandum of law (dated November 30, 2018) in lieu of oral summations. In deciding the merits of this case the Court reviewed the memoranda of law along with evidence admitted at trial.

TESTIMONY

The Court heard testimony from claimant Antoinette Manirampa, who is KM's mother, and Nicole Manirampa, KM's sister. Their testimony established that KM was a normal twenty-year old college student. He had good grades, was ambitious, and had big plans for his future. On the days leading to his death he behaved as he normally would. He did not display any signs of distress or desire to harm himself.

Claimant also called three witnesses employed by the defendant (the "Baruch witnesses"): Henry McLaughlin, Director of Public Safety; Lisa Edwards, Assistant Vice President of Campus Facilities; and Richard Duskiewicz, presently the Campus Security Specialist who was the school's locksmith at the time of the incident. Defendant did not call any additional witnesses. Their testimony provided background about Baruch's maintenance policies and details about the condition of the window that KM fell from.

Baruch installed double-hung windows at the Field Building in the 1980s. Since then, Baruch's maintenance staff noticed that ballasts[FN3] within the window frame would fail in some windows causing the windows to slam shut. Unfortunately, students were injured from such incidents. Baruch's staff addressed this issue by screwing these problem windows shut, consequently making them inoperable.

Baruch's maintenance staff also faced another problem with their windows. Students would open windows and throw chairs and other items out. Baruch's staff addressed this problem by installing window stoppers that limited how much someone can open a window to between two and a half to four inches. The stoppers were made of aluminum and secured to the windows using tamper-resistant screws that required specialized tools to undo. The staff opted to install window stoppers instead of screwing the windows shut so that those windows could be opened for ventilation.

The Baruch witnesses testified that prior to 2013, Baruch did not have a set window inspection program. Instead, they were inspected irregularly and problems were addressed whenever they were discovered or when complaints were made. Although they tracked repairs through a system of work orders, they did not maintain inspection records. Beginning September 2013, the school inspected their windows once a year, but still did not keep inspection records.

At some point, classrooms were outfitted with electronic locks that could only be unlocked by teachers, administrators, and staff using a key card. These locks were installed because the school wanted to prevent theft of their property, which included computers and other valuable equipment. Classroom doors also were equipped with manual Segal locks that could be locked from inside the classroom by turning a knob. If someone wanted to unlock the door from [*3]outside the classroom when a Segal lock was activated, they would have to use a key. Typically, teachers would unlock the classroom by swiping their key card at the beginning of class and the door would remain unlocked until ten minutes before the end of class. The Segal locks were usually left idle.

On the afternoon of May 19, 2014, Baruch's staff was told that a student fell from a window. Soon thereafter officers from the New York City Police Department ("NYPD") responded to the scene and began their investigation. Henry McLaughlin's public safety staff was helping them determine which floor KM fell from. They began checking classrooms from the fourth floor and worked their way upward. Mr. McLaughlin assisted Sgt. Santiago of the NYPD by using his key card to unlock classroom doors. Eventually, they made their way to classroom 1302, where they noticed something unusual: the door was locked from the inside using a Segal lock, so the key card alone would not open the door. Mr. McLaughlin looked into the room through the door's glass window and noticed that one of the four windows was open approximately fourteen inches - the other three windows were screwed shut. He also saw a backpack and a cell phone inside, both of which turned out to be KM's property. Once Mr. McLaughlin gained access to the room, he noticed two bent screws that were used to secure the window stopper. Mr. McLaughlin also testified that room 1302 could be accessed from a door connecting an adjacent room, but he did not recall if the door was opened at the time. Room 1302 was sealed by the NYPD as a crime scene following the incident for an unknown period of time.

Richard Duskiewicz, who inspected the subject window four days after the incident, noticed that there were elongated holes on the aluminum window frame where the screws securing the window stopper used to be. He reinstalled a window stopper on the opposite side of the window frame because he believed that the elongated holes could no longer hold screws. Lisa Edwards, who went to room 1302 a week following the incident, also noticed the elongated screw holes. She surmised that the holes were elongated when the window was forced open beyond the four-inch limit created by the window stopper.

ANALYSIS

The elements necessary to a cause of action for negligence are: (1) the existence of a duty on defendant's part as to claimant; (2) a breach of this duty; and (3) injury to the claimant as a result thereof. See Akins v Glens Falls City School Dist., 53 NY2d 325, 333 [1981]. (Internal citations omitted.) In the premises liability context, property owners owe a common law duty to keep their property in a reasonably safe condition considering all the circumstances including the purpose of the person's presence and the likelihood of injury. See Macey v Truman, 70 NY2d 918, 919 [1987]. However, a property owner is not liable for injuries caused by conditions that do not pose a reasonably foreseeable hazard or that are not inherently dangerous. See Jones v Presbyterian Hosp. in City of NY, 3 AD3d 225, 226 [1st Dept 2004]. To the extent a dangerous condition exists, notice of the condition, whether actual or constructive, is essential. See Fischer v Battery Bldg. Maintenance Co., 135 AD2d 378, 379 [1st Dept 1987]. A general awareness of some unsafe condition is not sufficient to place defendant on constructive notice; the notice must be specific to the particular condition that caused the injury. See Gordon v American Museum of Natural History, 67 NY2d 836, 838 [1986]. A claimant's inability to identify the defective condition that caused the injury is fatal to the action because a finding that defendant's negligence, if any, proximately caused claimant's injuries would be based on speculation. See [*4]Kane v Estia Greek Rest., Inc., 4 AD3d 189 [1st Dept 2004].

Claimant contends that KM, for whatever reason, entered into room 1302, which otherwise should have been locked. Claimant further asserts that once KM was inside the classroom, he opened a window to get some fresh air and, while doing so, he leaned his body partially out of the window. Claimant then asserts that the window slammed down on KM with such force that it knocked him out of the window causing him to fall to his death. During opening statements, claimant asked the Court to infer this sequence of events contending that it is the only reasonable inference one can draw from the evidence. Claimant also asked the Court to infer that defendant was negligent in maintaining the subject window based on evidence that the building was generally known to have faulty windows.

At the outset, the Court notes the paucity of evidence supporting a prima facie finding of negligence, especially given that this was not a witnessed incident. Unfortunately, the Court did not have the benefit of reviewing the NYPD's investigation records, nor did claimant call a witness from the NYPD to explain what their investigation revealed. KM's autopsy records also did not come into evidence. Such forensic evidence may have helped clear up some of the confusion and mystery involving KM's death. After claimant rested her case, the Court did not know if KM was alone at the time of his fall, whether he opened the subject window himself or whether he found it opened, how he entered a room that was otherwise locked, or even whether the window struck KM at all. The record simply lacks conclusive evidence regarding the circumstances surrounding KM's fall.

When AAG Curtis attempted to enter parts of the investigative file as a business record at the close of trial, claimant's counsel objected because the file was not notarized. As a consequence, the Court is effectively asked to assume a number of unsubstantiated facts that are key to knowing the cause of KM's fall. However, the Court declines to make any inferences beyond what the evidence supports. Even when drawing inferences, the Court does so with appropriate restraint. Consequently, the Court would dismiss this case based on the lack of evidence showing that KM fell because of a faulty window, as opposed to some other, more plausible cause. Claimant asks the Court to find the defendant liable based on too little evidence and too much speculation. The Court declines to do so.

Alternatively, based on the weight of the evidence in the record and the permissible inferences that can reasonably be drawn, the Court concludes that claimant has failed to prove a prima facie claim of negligence. First, claimant has failed to prove that the subject window was inherently dangerous and that corrective action was required but never undertaken. Claimant did not dispute that the subject window had a window stopper installed on it that would normally discourage, if not prevent, someone from opening the window beyond four inches. In this situation, there is nothing inherently dangerous about a window that is operable up to four inches. There was no evidence indicating that the subject window was faulty or that it had a tendency to slam shut, like other windows did. Although defendant was aware from prior incidents that students have opened windows to throw out furniture and, in one instance, jump out of the window, defendant reasonably addressed this issue by installing window stoppers with tamper-resistant screws. There was no evidence supporting claimant's assumption that these prior incidents involved windows that were already equipped with window stoppers.

Additionally, neither of the statutory provisions claimant refers to in her claim (Title 8, [*5]Section 155.7 of the New York Code, Rules, and Regulations and Section 6206 of the New York Education Law) regulate the subject window. Thus, claimant did not prove that defendant owed a duty to repair a hazardous condition with the subject window because there was no credible evidence that the subject window was hazardous or placed KM in peril.

Second, even if defendant had such a duty, defendant did not breach their duty because there was no evidence that they had specific notice of any problems with the subject window. Defendant's general awareness of windows slamming shut and students opening windows to throw out chairs does not give it notice that there were problems with the specific window in question or that the specific window stop was faulty. The Court declines to presume that defendant must have improperly maintained the subject window since KM's death involved a fall from the window[FN4] . Therefore, claimant did not prove that the defendant had specific notice of the particular condition they allege proximately caused KM's death.

Third, the Court is not convinced that there is a causal connection between the problems with the windows at Baruch that defendant was aware of and the cause of KM's death. The main problem with the windows at the Field Building was that some of them had a tendency to slam down unexpectedly when they were opened. Testimony showed that those problem windows were screwed shut. However, there is no evidence indicating that the window that KM exited out of had such a problem. To the contrary, when Henry McLaughlin saw the subject window shortly after KM's fall, it was still open by approximately fourteen inches. Thus, unlike windows that were known to slam down, the subject window remained opened even after KM's exit.

The Court finds credible the defense witnesses' unrefuted testimony indicating that the window was likely forced open by KM prior to his death. Specifically, shortly after the incident, Mr. McLaughlin found bent screws that were securing the window stopper. A few days following the incident, Mr. Duskiewicz, who had a close look at the subject window, found that the holes where the screws securing the window stoppers used to be were elongated. This further supports the inference that the window was forced open.

Furthermore, the Court is troubled that KM was in a room that he had no business being in and that the room was apparently manually locked from the inside. KM had a final exam set to begin approximately thirty minutes after his body was found. The exam was scheduled to be held in a classroom that was one floor below the thirteenth floor.

Claimant's assertion that KM opened the window himself and was caused to fall when the window hit him as he stretched his body out of the window for fresh air is completely unsupported by the evidence. Moreover, it does not follow logically that KM's entire body would fall out of the window if he only opened the window to get a breath of fresh air. Since claimant does not dispute that the subject window was equipped with an operational window stopper, even claimant's version of events assumes that the window was forced open more than four inches. Thus, it is just as likely that KM forced open the window himself. If this were the situation, the Court would reach the same conclusion as was reached by the Court of Appeals in Macey, 70 NY2d at 919.

In Macey, the plaintiff was injured when he was struck by a tree that was designated by [*6]the landowner for tree-cutting. The Court held that plaintiff's injury resulted from plaintiff's own attempt to dislodge a marked tree and not from an unsafe condition that the landowner left uncorrected. The Court concluded that, "[u]nder these circumstances, the law imposed no duty on defendant as landowner to protect plaintiff from the unfortunate consequences of his own actions." Id. at 919. Here, the record indicates that defendant merely kept a classroom window operational to a specified limit. In doing so, defendant merely furnished an opportunity for wrongdoing, but it did not proximately cause the wrongdoing. Thus, claimant has failed to carry the burden of proving a prima facie case because she did not show that the defendant's actions was a substantial cause of KM's death.

Lastly, claimant asked the Court to sanction defendant pursuant to CPLR 3126 for its failure to preserve records showing who swiped the key card that unlocked room 1302 and the adjoining room on the day of the incident. The Court asked claimant to suggest a remedy. In claimant's memorandum of law, claimant asked the Court to infer that a Baruch employee unlocked the adjoining room, but that room 1302 remained locked on that day. Since claimant's suggested remedy does not impact the underlying merits of her claim nor the Court's decision to dismiss the claim, the Court denies claimant's request as academic.

Based on the foregoing, claim number 126366 is hereby dismissed.

Let judgment be entered accordingly.



Dated: December 17, 2018

New York, NY

HON. FAVIOLA A. SOTO

Judge of the Court of Claims Footnotes

Footnote 1: Claimant named Baruch College ("Baruch") and the City University of New York ("CUNY") in the caption. Baruch is a senior college of the CUNY system and suits against such senior colleges should be brought solely against CUNY. See Chon v Baruch College and City University of New York, UID No. 2016-016-021 [Ct Cl, Marin, J., March 22, 2016]. As such, this Decision refers to defendant in the singular.

Footnote 2: At the close of trial, the Court expressed its sympathy to KM's family for the loss of their son and brother. Their loss continues to be in my thoughts.

Footnote 3: Ballasts help hold windows in place when they are opened.

Footnote 4: However, the Court admonishes defendant for failing to prepare and keep records documenting their inspection and maintenance efforts.